The German Federal Supreme Court decides about the burden of proof with regard to exhaustion in trademark cases

In two parallel decisions of March 15, 2012 (I ZR 52/10 and I ZR 137/10), the German Federal Supreme Court concluded that in principle the defendant has the burden of proof that the accused products are original products and trademark rights exhausted. However, the trademark owner who alleges a product counterfeit has to substantiate some hints and circumstances which point to a counterfeit. This rule regarding the burden of proof, however, is not applicable if the trademark owner has established a distribution system which hampers the free trade of goods within the European Common Market such that there is an actual danger of market foreclosure.