Poland Supreme Court Clarifies Parallel Import Burden of Proof

Summary

The Supreme Court of Poland recently ruled in a landmark case involving a luxury perfume brand and an online retailer, clarifying how the burden of proof applies in parallel import litigation. The court upheld that while EU law allows shifting the burden to trademark owners when distribution networks obscure product origins, defendants must still initially discharge their evidentiary responsibilities.This judgment emphasizes that contractual assurances from suppliers are insufficient for proving lawful marketability within the European Economic Area. Importers and retailers must now build robust, product-specific chains of evidence, such as tracing batch numbers to authorized first sales. The ruling warns trademark owners against using procedural rules to maintain artificial market barriers while simultaneously imposing strict documentation requirements on parallel traders.

The distinction between legitimate parallel trading and trademark infringement often hinges on who bears the burden of proof within complex distribution networks. A recent judgment by the Supreme Court of Poland (II CNPP 3/25) clarifies this dynamic, offering critical guidance for online retailers and importers operating within selective distribution systems.

Exclusive Rights Versus Free Movement

The dispute involved a luxury perfumery brand and a major Polish online retailer. The brand operates a selective distribution network featuring a single exclusive distributor in Poland. The retailer sourced products from various Polish suppliers who had provided contractual assurances that the goods were lawfully marketed within the European Economic Area (EEA).

The brand initiated legal action for trademark infringement, contesting the retailer’s right to sell the goods. The case progressed through three distinct judicial stages:

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  1. District Court: Dismissed the brand’s claim, ruling that the risk of market partitioning shifted the burden of proof to the claimant.
  2. Court of Appeal: Reversed the decision, placing the burden on the retailer to prove lawful origin, a standard the retailer failed to meet.
  3. Supreme Court: Addressed a cassation complaint filed by the retailer seeking to overturn the appellate judgment.

    The Van Doren and Hewlett-Packard Precedents

The Supreme Court’s analysis focused on the balance between trademark rights and the free movement of goods, guided by two key European Court of Justice (CJEU) precedents.

The Van Doren Principle

In cases involving exclusive or selective distribution systems, requiring a third-party seller to prove the origin of goods creates a structural asymmetry of information. Because trademark owners can identify and restrict specific network members supplying goods, parallel importers often find it difficult to trace sources. Consequently, once a defendant demonstrates this risk, the burden shifts to the trademark owner to prove that products were initially placed outside the EEA. Only after the owner fails to meet this standard must the defendant prove they obtained the goods with consent for first marketing within the EEA.

The Hewlett-Packard Clarification

However, this shift in burden is not absolute. The CJEU established in Hewlett-Packard that the burden cannot rest exclusively on the defendant if:

  • The goods bear no markings identifying the intended market.
  • Distribution occurs through a selective network where resale is restricted to other members or end-users.
  • The defendant obtained supplier assurances of lawful marketability.
  • The trademark owner refuses to verify the status of the goods.

In these scenarios, the risk of market partitioning is significant, necessitating an adjustment in burden allocation to prevent trademark owners from using procedural rules to maintain price differentials across borders.

Legal Thresholds and Outcomes

Despite supportive legal reasoning regarding burden shifts, the Supreme Court dismissed the retailer’s cassation complaint. Overturning an appellate judgment requires demonstrating a "qualified, manifest breach" of law. The Court determined that the national courts’ interpretation was one of several plausible views consistent with existing case law. Therefore, no formal error occurred, despite the unfavorable outcome for the retailer.

This distinction is vital for legal practitioners and business leaders. A sympathetic legal analysis does not guarantee a favorable verdict if the defendant has not discharged their initial evidentiary responsibilities.

Strategic Implications for Trademark Monitoring

The judgment underscores several critical risks for businesses, particularly those in parallel trade or online retailing:

  • Documentation is Paramount: Supplier assurances alone are insufficient. Importers must build product-specific evidence of EEA first marketing, such as tracing exact batch or lot numbers back to an authorized first sale within the EEA.
  • Selective Distribution Risks: Brands utilizing exclusive or selective networks leverage information asymmetry in litigation. Retailers dealing with such brands face higher evidentiary hurdles.
  • Dynamic Burden of Proof: The allocation of proof shifts based on the transparency of the distribution chain. If a brand’s network obscures origin, the burden may shift. However, if the network is opaque and the brand refuses to cooperate, legal standards may favor the importer.

    Guidance for Trademark Owners and Retailers

The Supreme Court’s ruling indicates that trademark owners cannot use burden-of-proof rules as a substitute for controlling their distribution channel. If a network is permeable and the owner refuses to verify the status of goods while demanding parallel importers prove their source, they risk being viewed as creating artificial market barriers.

For retailers and importers, trust in contractual assurances is no longer sufficient. Active construction of a defensible chain of evidence for every product sold is required. In cross-border trademark law, visibility and verification serve as the primary mechanisms for risk mitigation.