Own-it | Intellectual Property Know-How for Creative Businesses

Cheats sometimes prosper!

Cheats sometimes prosper!

Published: 05.12.11 at 16:02

A recent ruling by the top European court; the Court of Justice of the European Union (CJEU) has dealt a significant blow to brand owners in the fight against counterfeit goods.

The decision came from the Joined cases of Nokia and Philips. Both cases concerned a consignment of goods that had been detained by customs authorities. Upon inspection it was concluded that the products were fakes and were detained pending court orders - both companies seeking damages and destruction of the counterfeit goods.

In the Philips case the cargo, a consignment of electrical shavers from Shanghai resembling Philips designs, lacked a stated destination.

The counterfeit mobile telephones and telephone accessories in the Nokia case had come from Hong Kong and were destined for Columbia.

The CJEU was asked to determine whether goods coming from a non-member State which are in transit or stored in the EU can be classified as 'counterfeit goods' or 'pirated goods' for the purpose of EU law. It held that they can, so long as they are an imitation or a copy of a product protected in the EU by an intellectual property right and it is proven that they are intended to be put on sale in the EU.

Indications that the goods are intended for sale within the EU may include the fact that the destination of the goods is not declared (e.g. in the Philips case) where such a declaration is required.

So, bad luck it seems for Nokia, as it was clear that that specific consignment was heading for Columbia!

Although the CJEU was only interpreting the law as it stands, this hardly seems a satisfactory state of affairs; that simply because a consignment contains a note specifying that it is destined for a country outside of the EU it is exempt from counterfeit laws. No doubt once the release of the goods has been ordered they will somehow find their way into the EU through some other route.

As well as costing businesses millions through lost sales and potential loss of goodwill and reputation, counterfeit goods also put consumers at risk by circulating unsafe, unregulated products. With this in mind, the proposed changes to the EU's suspensive detention laws can't come soon enough.  

Thanks to the IPKat for that story; see here; and here.

Photograph (some rights reserved) by ahknight


Please note that this article provides general information only but is not to be regarded as legal advice. You must take advice from a specialist lawyer in relation to your specific circumstances. Further, you should seek additional legal advice when dealing with parties based in other parts of the world or works originating from other parts of the world as the legal position may vary.


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