In his non-binding opinion the Advocate General advised the Court that the Border Measures Regulation does not contain a ‘production fiction’ and that customs may seize fakes in transit if there are sufficient grounds for suspecting that they are counterfeit goods.
The opinion of Advocate General Cruz Villalon in joined Cases C-446/09 Koninklijke Philips Electonics NV v Lucheng Meijing Industrial Company Ltd and others and C-495/09 Nokia Corporation v Her Majesty’s Commissioners of Revenue and Customs has been submitted to the Court of Justice of the European Union on 3 February 2011.
In this non-binding Opinion on two questions for preliminary ruling the Advocate General advised the Court: in Philips that the Border Measures Regulation does not contain a ‘production fiction’, meaning that the judicial authority who must determine whether fake goods in transit infringe an intellectual property right may not consider the goods as if they were produced in the Member State where they have been detained; in Nokia that customs may seize fakes in transit if there are sufficient grounds for suspecting that they are counterfeit goods and, in particular, that they are to be put on the market in the European Union, either in conformity with a customs procedure or by means of an illicit diversion.
