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goods in question and is therefore not liable to infringe the specific subject-matter
of the trade mark.
28. Furthermore, as Advocate General Mischo noted at point 45 of his Opinion, that
conclusion holds good regardless of the final destination of the goods in transit.
The fact that the goods are subsequently placed on the market in a non-member
country and not in another Member State does not alter the nature of the transit
operation which, by definition, does not constitute a placing on the market.
7.88
A different rule applies to non-EU goods which are in transit. This was
considered in Case C-405/03
Class International BV v Colgate Palmolive Co and
Ors
,
53
in which Class International shipped into Rotterdam a container load of
toothpaste bearing the 'Aquafresh' trade mark from a source in South Africa.
The ECJ was asked, in substance, whether Art 5(1) of the Trade Marks
Directive and Art 9(1) and (2)(c) of the Community Trade Mark Regulation
must be interpreted as meaning that the trade mark proprietor is entitled to
oppose the introduction into the Community, under the external transit
procedure or the customs warehousing procedure, of original goods bearing that
mark which had not previously been put on the market in the Community by
that proprietor or with his consent.
The Court answered that non-Community goods placed under the external
transit procedure or the customs warehouse procedure were not to be regarded
as 'imported' for the purposes of the Trade Marks Directive or the Community
Trade Mark Regulation.
54
The Court noted that the entry of non-Community
goods for customs procedures such as external transit or customs warehousing
'is distinguishable from placing them under the customs procedure of release for
free circulation, which, pursuant to the first paragraph of Article 79 of the
Customs Code, confers on non-Community goods the customs status of
Community goods'.
55
7.89
The Court noted that non-Community goods placed under the external transit
procedure or the customs warehousing procedure may at any time be assigned
another customs-approved treatment or use such as release for free circulation,
or re-export outside the territory of the Community. In the case of customs-
approved treatment or use, other than release for free circulation, the Court
ruled that 'the mere physical introduction of those goods into the territory of
the Community is not “importing” within the meaning of Article 5(3)(c) of the
Directive and Article 9(2)(c) of the Regulation'.
56
7.90
It concluded that 'placing
53
[2005] ECR I-8735.
54
Ibid, at para 33, applying Joined Cases C-414/99
Zino Davidoff and Levi Strauss
[2001] ECR I-8691, para 33.
55
Ibid, at para 40.
56
Ibid, at para 44.
