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CS Professional · Intellectual Property Rights - Law and Practice · Types of Intellectual Property

Sunrise Pharma uses its registered mark 'CURAFAST' for medicines. A chemist, Dinesh, lawfully buys genuine CURAFAST packs and resells them in his shop with the mark intact. Sunrise sues for infringement. What is the likely result?

Dinesh does not infringe. Once the proprietor puts genuine goods on the market, the right to control their resale is exhausted, so resale with the mark intact is permitted, unless the goods' condition has been changed or impaired after being marketed.

  1. ADinesh infringes because resale needs the owner's written consent
  2. BDinesh does not infringe, as the goods were put in the market by the owner and the exhaustion principle applies, unless condition of goods is impairedCorrect
  3. CDinesh infringes because he used the mark in the course of trade
  4. DDinesh is liable for passing off, since his shop is not authorised

Explanation

Registered mark rights are not infringed by further dealing in goods lawfully placed in the market by the owner or with consent. This exhaustion rule does not apply if the condition of goods has been changed or impaired. Here the goods are genuine and intact, so no infringement or passing off arises.

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