Federal Court Clarifies Burden of Proof in Counterfeit, Parallel Import Cases

摘要

The German Federal Court of Justice held that in a counterfeit case the trademark owner is not obliged to prove the counterfeit nature of the product but that it is for the defendant to prove the product's authenticity and the exhaustion of the trademark rights. It also clarified under which conditions the burden of proof regarding exhaustion may shift to the trademark owner (Cases I ZR 52/10 and I ZR 137/10 ("Converse I and II"), Federal Court of Justice, March 15, 2012).