Geography Reference
In-Depth Information
non-Community goods under a suspensive customs procedure does not make it
possible for them to be put on the market in the Community in the absence of
release for free circulation'.
7.91
In the field of trade marks and GIs, the external transit of goods would seem to
be outside the scope of the Customs Regulation.
7.92
In Case C-281/05
Montex Holdings v Diesel
,
57
the ECJ had to consider the issue
in the context of goods which were not the original goods of the proprietor.
Montex manufactured garments by exporting their various different pieces to
Poland, having them sewn together on Polish territory and bringing the
completed garments bearing the trade mark 'DIESEL' back to Ireland. In the
course of transit across Germany, they were detained by the German customs
authorities. Diesel argued that the garments infringed its trade marks because
of the danger that they could find their way onto the German market. The
Court rejected the argument, observing that the external transit of non-
Community goods is based on a legal fiction that goods placed under this
procedure are treated as if they have not entered the Community and so are
subject neither to import duties nor other measures of commercial policy in
accordance with its decision in
Polo/Lauren
.
58
7.93
In
Eli Lilly & Company & Anor v 8pm Chemist Ltd
59
the Court of Appeal of
England and Wales ruled in 2008 that goods under the control of customs were
not imported within the country and thus could not infringe a registered trade
mark. This decision was applied by the High Court in 2009 when Kitchin J held
in
Nokia Corporation v Revenue & Customs
60
that goods in transit through the
UK could not be seized under the EU Counterfeit Goods Regulation 1383/03.
This was because the Regulation focused on infringing goods and that without
an importation into the country, there could be no infringement of the
plaintiff 's trade marks. This case was appealed to the Court of Appeal, which on
9 November 2009 referred the following question to the ECJ:
7.94
Are non-Community goods bearing a Community trade mark which are
subject to customs supervision in a Member State and in transit from a
non-Member State to another non-Member State capable of constituting
'counterfeit goods' within the meaning of Article 2(1)(a) of Regulation 1383/
2003/EC if there is no evidence to suggest that those goods will be put on the
57
[2006] ECR I-10881.
58
[2000] ECR I-2519.
59
[2008] EWCA Civ 24.
60
[2009] EWHC 1903 (Ch).
