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This study considers trademark exhaustion under the Trademark Directive through the case approach. Article 7(1) of the Trademark Directive provided that a trademark was not to entitle its proprietor to prohibit its use in relation to goods which had been put on the market in the Community under that trademark by, or with the consent of proprietor. However it is unclear from the wording of the Trademark Directive whether it represents only the principle of Community-wide exhaustion, or whether it precludes member states from adopting international exhaustion. To settle this ambiguity, the European Court of Justice(ECJ) addressed this question in the Silhouette and the Sebago cases and the Zino Davidoff case reignited this debate. Silhouette held that Article 7 provides full harmonization of international exhaustion to apply within the Community and so it precludes member states from applying the principle of international exhaustion. In the Sebago case, the ECJ confirmed Silhouette’s finding against unilateral international exhaustion and introduced the concept of “consent”. The ECJ’s broad approach to Article 7(2) has enabled it to realize the existence of an exclusive right of the proprietor, and to regard the first Community goods marketed outside the non-member states as trademark infringement under Article 5 which was missing in the Silhouette case.In the Zino Davidoff case, focusing on the interpretation of “consent”, the ECJ held that the consent of the proprietor to the Community marketing of goods previously marketed outside the Community by him or with his consent should be expressed positively, but may be implied only if there could be no doubt in the proprietor’s intention.
