Harman and JBL: genuine goods, trademark exhaustion and the scope of an injunction

A Warsaw dispute about distribution

Harman, a manufacturer of audiovisual equipment bearing marks including JBL and HARMAN, brought proceedings against AB, which bought goods outside the official Polish distribution channel. The Regional Court in Warsaw asked about an injunction referring generally to products not marketed in the EEA by the proprietor or with its consent. The difficulty concerned identifying the particular goods covered during enforcement (paragraphs 16–29). ^[1]

In this study, calling a product genuine does not establish exhaustion. Article 15 of Regulation 2017/1001 concerns goods placed on the market in the European Economic Area by the trademark proprietor or with its consent. It also preserves legitimate reasons for opposing further commercialisation. The geographical and transactional history therefore needs its own evidence. ^[2]

What the Court actually decided

The judgment of 17 November 2022 did not prohibit every injunction drafted in general terms. It accepted the described practice provided that the defendant could challenge the identification of products during enforcement and a court could examine whether they had actually been marketed in the EEA. The answer was conditional and included effective judicial protection (paragraphs 59–73 and the operative part). ^[1]

Article 3 of Directive 2004/48 also matters: enforcement measures must be fair, proportionate and protected against abuse. Article 47 of the Charter guarantees an effective remedy and a fair hearing. Merely allowing a party to submit a document does not answer whether it can effectively present the evidence relevant to the disputed products. ^{[3] [4]}

Editorial method: traceability of individual goods and batches

Our proposed analytical method starts with a table of individual items or unambiguously identified batches. Record the model, serial or batch number, supplier, purchase date, invoice and transport document. Separately identify the event alleged to be the first marketing in the EEA. This table does not automatically prove the trademark proprietor's consent; it shows which link still requires investigation.

Next, classify the quality of the evidence. An invoice from a Polish seller establishes a particular transaction, but without further findings it may not explain the product's earlier journey. Link a supplier's statement to identified goods and dates rather than relying on an assurance about an entire catalogue. The report should distinguish documented facts, the counterparty's account and the analyst's inference.

The third step is a trial reconstruction of enforcement. Test the proposed wording against hypothetical goods with a complete document chain, goods of unknown origin and a mixed batch from several deliveries. For each, ask who would determine coverage and on what evidence. This exercise is intended to expose ambiguity before a dispute; it is not an account of evidence actually produced by the parties to the historical case.

Example: an electronics shop in Kraków

A hypothetical shop buys identical headphone models from two wholesalers. Documents for the first delivery link particular units to an earlier sale in the EEA. The second has only a collective invoice that does not identify individual units. The editorial exercise is to prepare two separate evidence cards. A shared model photograph and identical packaging do not remove the difference in trading history.

The final report should state the scope of verification, missing records and questions for the supplier. It can also distinguish checking provenance before purchase from reconstructing it after receiving a claim. We do not assert a measured economic advantage for either strategy: this judgment did not measure one. The practical point concerns reconstructing facts, rather than predicting the outcome of litigation.

Reading the judgment without overgeneralisation

C-175/21 should not be presented as automatically transferring the burden of proof to every trademark proprietor or authorising every parallel import. The applicable evidential rules and marketing territory need separate examination. Exhaustion also does not answer every question about alterations to goods, advertising or the way a trademark appears on a shop's website.

The case illustrates the procedural dimension of intellectual property. An abstract legal rule requires a workable method of identifying goods and access to judicial review. An analytical report should therefore explain the records, sequence of findings and effective opportunity to challenge an attribution. This is editorial commentary on the judgment's significance, not a report on the later result of the Polish proceedings.

For a representative reviewing the evidence, it is useful to finish with a list of undisputed matters: product identity, dates and records accepted by both sides. Remaining disagreements can be classified as missing information, credibility questions or different readings of the legal rule. This helps plan further investigation and avoids expecting a new invoice to solve a purely legal disagreement.

Sources and further reading

1. 1
   CJEU, Harman International Industries v AB ↗

   C-175/21; ECLI:EU:C:2022:895; 17.11.2022; CELEX:62021CJ0175

   Primary source; facts paragraphs 16–29, effective protection paragraphs 59–73 and operative part. The case language was Polish.

2. 2
   European Union Trade Mark Regulation ↗

   Regulation (EU) 2017/1001, art. 15; CELEX:32017R1001

   Article 15: exhaustion for goods marketed in the EEA; paragraph 2 preserves legitimate reasons to oppose further commercialisation.

3. 3
   Directive on the enforcement of intellectual property rights ↗

   Directive 2004/48/WE, art. 3; CELEX:32004L0048

   Article 3: fairness, proportionality and safeguards against abuse.

4. 4
   Charter of Fundamental Rights of the European Union ↗

   Art. 47; CELEX:12012P/TXT

   Article 47: effective remedy and fair trial; a standard applied in the judgment.