Judgment of the Court (Tenth Chamber) of 18 January 2024 (request for a preliminary ruling from the Sąd Okręgowy w Warszawie — Poland) — Hewlett Packard Development Company LP v Senetic S.A.

(Case C-367/21, (1) Hewlett Packard Development Company)

(Reference for a preliminary ruling - Free movement of goods - Articles 34 and 36 TFEU - Intellectual property - EU trade mark - Regulation (EC) No 207/2009 - Article 13 - Regulation (EU) 2017/1001 - Article 15 - Exhaustion of the rights conferred by a trade mark - Placing on the market within the Union or European Economic Area (EEA) - Consent of the proprietor of the trade mark - Place where goods were first put on the market by the proprietor of the trade mark or with his consent - Burden of proof)

(C/2024/1651)

Language of the case: Polish

Referring court

Sąd Okręgowy w Warszawie

Parties to the main proceedings

Applicant: Hewlett Packard Development Company LP

Defendant: Senetic S.A.

Operative part of the judgment

Article 13(1) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the [European Union] trade mark and Article 15(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark, read in conjunction with Articles 34 and 36 TFEU,

must be interpreted as:

precluding the burden of proof of exhaustion of the rights conferred by an EU trade mark being borne exclusively by the defendant to the action for infringement where the goods bearing that trade mark, which do not bear any marking enabling third parties to identify the market on which they are intended to be marketed and which are distributed through a selective distribution network whose members may resell them only to other members of that network or to end users, have been purchased by that defendant in the European Union, or in the European Economic Area, after having obtained an assurance from the sellers that they could be marketed legally there, and the proprietor of that trade mark refuses to carry out that verification at the purchaser’s request.

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(1)   OJ C 391, 27.9.2021.