Every few years, the idea resurfaces that Mauritius could bring down the cost of branded medicines simply by allowing importers to buy them wherever they are cheapest. The law has quietly shifted since the Supreme Court last examined the question - but not in the way most people assume.

The commercial question

Medicines cost different amounts in different countries. The same branded product may sell in one market at a fraction of its Mauritian price, because of local pricing policy, purchasing power, tax treatment or the terms a manufacturer has agreed with a national health system. That gap is a standing invitation to arbitrage: buy where the product is cheap, sell where it is dear, and pocket the difference while still undercutting the authorised distributor.

That is parallel importation. The goods are entirely genuine. They were made by the rights holder or with its authority and sold lawfully in the first market. What makes them "parallel" - or, in the vocabulary the Supreme Court adopted, "grey" - is that they enter the second market outside the distribution channel the rights holder built, and without its consent.

The question is not academic. It determines whether an importer can build a business around cheaper sourcing, and whether a brand owner can stop a consignment at the border. The answer in Mauritius today turns almost entirely on one right.

Exhaustion, in one paragraph

The governing concept is exhaustion. An intellectual property right gives its owner control over the first sale of a protected product; the question is whether that control survives it. Under a national exhaustion regime, the right is spent only once the product is placed on the market in that country - so the owner keeps the power to block imports of goods it first sold abroad. Under an international regime, the right is spent once the product is lawfully sold anywhere, and parallel imports flow freely. The TRIPS Agreement deliberately leaves the choice to each member state, which is why practice varies so widely.

What Mauritian law now says

The leading authority remains the Supreme Court's combined judgment in The Polo/Lauren Company LP v Maudhoo and Nissan Jidosha Kabushiki Kaisha v Zario Ltd [2012 SCJ 494]. In both cases the imported goods were accepted to be genuine, and in both the Court held that they nonetheless infringed. Mauritius, it found, applies national exhaustion: the rights holder retains the right to control the first entry of its products into this market, and it is no defence that the goods are authentic, were bought legally overseas, or are cheaper than the authorised article.

What is easy to miss is that the two statutes the Court construed have since been replaced - and they have not moved in the same direction.

Patents: Section 21(2)(a) of the Industrial Property Act 2019 (in force since 31 January 2022) provides that patent rights do not extend to acts in respect of articles put on the market "in Mauritius or abroad" by the owner or with its consent. That is international exhaustion, and it reproduces the position the Supreme Court noted in 2012 under the former legislation. A patent has not, on either side of the 2019 Act, been a route to blocking parallel imports here.

Copyright: This is where the position has genuinely reversed. In 2012 the Court relied on section 4(1)(f) of the Copyright Act 1997, which gave the owner an exclusive right to authorise importation even of copies made with its authority. That provision is gone. Under section 6(2)(a) of the Copyright Act 2014, the distribution right does not apply to a work that has already been the subject of a sale or other transfer of ownership "in any country" - international exhaustion, subject only to a carve-out for copies obtained in breach of copyright. Section 25 separately permits personal importation. The legislature clearly intended the change: section 59(2) expressly excludes exhaustion of rights and parallel imports from the protections carried over from the 1997 Act. In practical terms, copyright in packaging, labels and patient information leaflets is no longer a route to stopping a genuine consignment.

Trade marks: Section 98(4) of the 2019 Act provides that the rights conferred by registration do not extend to articles put on the market in Mauritius by the registered owner or with its consent. The wording is materially identical to the old section 40(5), so Polo/Lauren continues to govern it directly.

The result is a single, clean proposition that every importer and brand owner in this market should understand: the trade mark is now the only intellectual property right that stops parallel imports of medicines in Mauritius. Not the patent. Not the copyright in the box. The brand.

Consent is the whole battle

Because section 98(4) turns on consent, litigation turns on consent - and Polo/Lauren sets a demanding standard. The burden lies on the importer, not the rights holder, and consent must be clear and unequivocal. Drawing on the European authorities, the Court held that consent cannot be inferred from the fact that earlier consignments were released, that no territorial restriction was imposed on a foreign distributor, that the goods carried no export warning, or that the owner simply said nothing.

The Nissan facts make the point commercially. The importer had brought in consignments for years, and the authorised local distributor had itself bought spare parts from it. The Court still held that each importation must be assessed separately: past dealings do not license future shipments. An importer who has cleared ten consignments has no accrued right to clear the eleventh.

Intellectual property is only half the barrier

Even if the trade mark issue were solved - through a licence, a consent, or a change of policy - the Pharmacy Act 1983 would remain. No pharmaceutical product may be imported unless it is registered with the Pharmacy Board (section 25), and registration is granted on the Board's terms, runs for a year, and must be renewed. The Ministry's guidelines list registered products together with their corresponding importers, so a parallel importer cannot shelter behind the authorised distributor's registration; it must obtain its own. Section 25A adds a clearance from the Registrar through TradeNet before import and again on arrival, and section 25B provides for a trusted trader certificate tied to a specified product, from a specified supplier, in a specified country, for a specified period.

That architecture is telling. Mauritian medicines regulation is built around a known product from a known source through a known importer. Opportunistic sourcing - buying whichever market is cheapest this quarter - sits awkwardly with it, whatever the intellectual property position.

The policy trade-off

The case for liberalising is real. Parallel trade introduces competition into a distribution layer that is otherwise exclusive, and in a number of jurisdictions it has been credited with putting downward pressure on prices for patients.

The case against is equally concrete, and largely regulatory rather than legal. Products sourced through multiple channels are harder to verify against local standards: approval in one jurisdiction does not mean compliance here, and indications, dosage, labelling, storage conditions and post-market obligations may all differ. Recalls depend on rapid traceability, which fragmented channels degrade, and pharmacovigilance depends on knowing what is actually in circulation. There is also a longer-term commercial effect: differential pricing exists precisely because manufacturers can keep markets separate, and if cheap markets become export platforms, the discounts tend to disappear rather than spread.

Conclusion

Mauritius' current position is the product of a gradual evolution of its intellectual property framework. While patents and copyright are now subject to international exhaustion, trademarks remain governed by a national-exhaustion regime and continue to constitute the principal legal constraint on parallel imports.

The more pertinent question is not whether greater access to affordable medicines is desirable, but whether the existing regulatory framework is capable of accommodating parallel importation while safeguarding product integrity, traceability and patient safety. The current pharmaceutical regime is founded upon identified products, approved sources and accountable importers. Any policy shift towards permitting parallel imports would therefore require the introduction of robust mechanisms to ensure product verification, effective pharmacovigilance and reliable recall procedures. Until such safeguards are established, the existing framework remains an important means of advancing the regulatory and public health objectives underpinning the Mauritian medicines market.