The CJEU today gave judgment in two controversial references in joined cases C-446/09 Philips v Lucheng Meijing and C-495/09 R v HM Revenue and Customs, ex parte Nokia.
The cases concern the interpretation of the EU rules on the role of customs authorities faced with possible infringements of intellectual property rights by goods placed in external transit or customs warehousing procedures.
The Philips case concerned a shipment of electric shavers from China which was intercepted by the Belgian customs authorities. The Nokia case concerned a consignment of counterfeit mobile telephones that was inspected at Heathrow Airport and was destined for Columbia. HM Revenue and Customs refused to detain the goods on the basis that they were in transit and considered that they did not qualify as counterfeit goods under the relevant regulations.
The Court held that it is necessary to establish an infringement of the underlying intellectual property rights for the goods to be seized in transit. The customs authorities must, however, detain suspect goods as soon as there are indications before them giving grounds for suspecting that such an infringement exists. Those indications were held to include the fact that the destination of the goods is not declared, a lack of precise or reliable information concerning the manufacturer or consigner of the goods, a lack of cooperation with customs authorities or the discovery of documents or correspondence suggesting a diversion of the goods to EU consumers will take place.
The case is also significant because it is the first time that the International Trade Mark Association (‘INTA') has appeared before the CJEU. INTA intervened as an amicus before the Court of Appeal and joined the order making a reference.
The judgment is here.
Nicholas Saunders acted for the International Trade Mark Association.