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| Despite the recent Court of Justice ruling, some long-distance hauliers were taking no chances with their goods in transit ... |
Yesterday's news of the Court of Justice of the European Union ruling in the Joined Cases of
Nokia and
Philips (noted by the IPKat in "When is a fake not a fake? When it's not on sale in Europe ...",
here) has attracted considerable criticism. For example Simmons & Simmons' Ben Hall ("Court of Justice sides with counterfeiters") writes
"... this places the onus on already overstretched customs officers, rather than providing clear instructions against criminal counterfeiters. When obviously counterfeit goods are seized, it should be possible to have them destroyed. It is unacceptable for brand owners and consumers that, for example, counterfeit pharmaceuticals, brake pads or aircraft parts must be let go, simply because the container notes a destination outside the EU. ...
Seizure of counterfeit goods in transit through the EU will not be achieved by brand owners simply identifying the goods as counterfeit to Customs. Brand owners will likely need to provide evidence that there are sufficient grounds for suspecting that the allegedly counterfeit goods are likely to enter the EU market if no further action is taken, if they are to persuade Customs officials to seize such goods in the first place ...".
For Marks & Clerk, Dafydd Bevan ("Blow for Brand Owners in Key Court Battle Over Fakes in Transit Through the EU") addsw:
"... Although expected, this ruling is a blow to brand owners in the fight against counterfeiters. Customs officials have effectively been given the go-ahead to turn a blind eye to even obviously fake goods passing right under their noses if they are destined for non-EU states.
Counterfeiters often abuse legitimate customs procedures to allow transit of goods through the EU between non-EU states in order to bypass customs checks and illicitly introduce fake goods to the EU market. This ruling reflects the current state of EU law but makes it difficult for brand owners and customs to put a stop to this practice. Counterfeiting networks have become so adept at covering their tracks, that it will often be virtually impossible for brand owners to prove that fake goods in transit will finish up in the EU ....
Counterfeiters put consumers at risk by trading unsafe, unregulated products, and a lot of their earnings fund organised crime. The trade in counterfeits costs businesses millions of pounds and is becoming more and more difficult to fight. Constrained as it is by the current state of EU law on the matter, today’s ruling provides little assistance in combating counterfeiting in the global marketplace. If the position is to be improved, EU legislators will need to come up with proposals for changes in the law itself.”
This Kat can report that the
Journal of Intellectual Property Law & Practice (
JIPLP), which he edits, is holding a seminar on the
Philips and
Nokia rulings, and on the current and prospective state of suspensive detention of goods. Speakers are Marius Schneider, Olivier Vrins and Phillip Johnson with Michael Edenborough QC, Paul Stevens (Olswang LLP) and Lucy Nichol (Nokia) on the panel. The date of the seminar is Wednesday 18 January 2012 and the venue is Olswang LLP's pleasant office in High Holborn, London. For full details, click
here.
