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NOKIA ./. HMCR Court of appeal submits a question for preliminary ruling to the ECJ
The Court of appeal hearing the NOKIA ./. HMCR matter decided to refer a question for preliminary ruling to the ECJ, which will essentially address whether non-Community goods in transit from one non- Member State to another non-Member State are capable of constituting ‘counterfeit goods’ within the meaning of Article 2 (1)(a) of the border Measures Regulation if there is no evidence that they will be released into free circulation on the EU or be illicitly diverted onto the EU market. An article of Border Measures blogger Marius Schneider can be read here.
Border Measures blogger Marius Schneider (his new website is here) has published an article on the Nokia ./. HMCR decision of the UK High Court relating to counterfeited goods in transit in the EU. In this decision Justice Kitchin decided that for fake products bearing a trade mark to be classified as ‘counterfeit goods’ within the meaning of Regulation 1383/2003, they must infringe a trade mark in the territory in question. Therefore the judge ordered HMCR to release a shipment of fake Nokia phones in transit. The judge recognised that the result was unsatisfactory, but he hoped it would provoke a review of the adequacy of the measures available to combat the international trade in fake goods by preventing their transhipment through the EU’.
The case has been appealed and the Court of appeal has referred the matter for a preliminary ruling to the ECJ. The Appeal Judges, including Lord Justice Jacob, made it clear that they were strongly persuaded by the initial judgment of Mr Justice Kitchin. They did nevertheless consent to refer a question for preliminary ruling to the ECJ, which will essentially address whether non-Community goods in transit from one non- Member State to another non-Member State are capable of constituting ‘counterfeit goods’ within the meaning of Article 2 (1)(a) of the border Measures Regulation if there is no evidence that they will be released into free circulation on the EU or be illicitly diverted onto the EU market. The Appeal Judges warranted their decision for the referral by the contrary Dutch decision in the Sisvel v Sosecal case and the recent Belgian reference in a similar issue of the Antwerp Court of First Instance in the NV Koninklijke Philips Electronics v Far East Sourcing Limited (AR No 02/7600/A, 4 November 2009 - the case relates to regulation 3295/94, the predecessor of Regulation 1383/ 2003).
Read the full article here