“Hennessy v. LB11”

• 1. For the purposes of assuming exhaustion it is irrelevant whether the trade mark proprietor intended to market the products outside of the European Economic Area (EEA). Intentions of and agreements between the parties regarding, for example, the destination of the products do not prevent exhaustion. Nor is it relevant that the buyer is not established within the EEA.

• 2. Furthermore, it is irrelevant whether the trade mark proprietor has actually realised the economic value of his trade mark and whether, with a view to further marketing outside the EEA, he has negotiated a lower price than he would have done in the event of further marketing within the EEA. What matters instead is that the trade mark proprietor has had the opportunity to realise the economic value of his trade mark, which is the case if the trade mark proprietor sells the goods bearing his trade mark within the EEA.

• 3. Under Art. 22(a)(3) Dutch Code of Civil Procedure, if a party’s access to documents would disproportionately harm the protection of a trade secret as referred to in Art. 1 of the Dutch Trade Secrets Protection Act, a court may determine that such access is reserved to an authorised representative who is a lawyer or who has received special permission from the court to do so. The court may also exercise this power ex officio.