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Ladyshavers and mobile phones in transit

March 2011 - EU & Competition. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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According to the Advocate General, member states are not allowed to treat goods in transit ’as if’ they have been manufactured in the member state. On the other hand, the level of proof of infringement required for member states to seize goods in customs is not particularly high.

Advocate General Cruz Villalón recently gave his opinion on how the Court of Justice of the European Union should rule in two cases concerning seizure of goods in transit. In one of the cases, the Dutch customs authorities had seized a consignment of ladyshavers which allegedly infringed another company’s design rights. In the other case, the UK authorities had refused a request by a trademark holder to seize a consignment of mobile phones which allegedly infringed its trademark rights.
The CJEU was asked to address the question of whether a member state is entitled to treat imported goods in transit temporarily situated in its territory ‘as if’ they have been manufactured in the member state. In that case, this can be an infringement of intellectual property rights even if the member state is not the country of destination of the goods. The CJEU was also asked to address the question of how much or how little proof of infringement is required for member states’ custom authorities to be allowed to seize goods in transit.
No fiction – but no definitive proof either
The answer to the two questions depends on how one of the EU customs regulations is interpreted. In the Advocate General’s opinion, the relevant customs regulation does not allow a member state to treat imported goods in transit as if they have been manufactured in the member state. Accordingly, by seizing the ladyshavers, the Dutch customs authorities had acted contrary to the Customs Regulation.
On the other hand, in the Advocate General’s opinion, a member state only needs to have ‘the beginnings of proof’ that the imported goods may infringe an intellectual property right in the member state – if the goods make it past customs, that is. In his opinion, the Advocate General also suggests what factors could be taken into account in the test of whether there is a risk that goods in transit will actually end up in the member state in question anyway.

Norrbom Vinding notes:
  • that the CJEU will now have to decide whether to follow the Advocate General’s opinion; and

  • that, from a general perspective, it will be an advantage for rights holders if the CJEU ends up agreeing with the Advocate General that the burden of proving infringement in such cases is quite low.

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