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market in the EC, either in conformity with a customs procedure or by means of
an illicit diversion?
61
These questions were considered by the ECJ in Joined Cases C-446/09 and
C-495/09,
Koninklijke Philips Electronics NV v Lucheng Meijing Industrial Co
Ltd and others
62
and it determined as follows:
7.95
The temporary detention of goods placed under a suspensive customs procedure
+
The transit and customs warehousing procedures are respectively characterised by
the movement of goods between customs offices and the storage of goods in a
warehouse under customs supervision and those operations cannot, as such, be
regarded as the putting of goods on sale in the European Union.
63
+
Goods placed under a suspensive customs procedure cannot, merely by the fact of
being so placed, infringe intellectual property rights applicable in the European
Union.
64
+
Those rights may be infringed where, during their placement under a suspensive
procedure in the customs territory of the European Union, or even before their
arrival in that territory, goods coming from non-member States are the subject of a
commercial act directed at European Union consumers, such as a sale, offer for sale
or advertising.
65
+
Having regard to the secretive nature of the activities of traffickers of goods which
are imitations or copies, the detention by customs authorities of goods which they
have identified as being imitations or copies cannot, without reducing the effect-
iveness of Regulations No 3295/94 and No 1383/2003, be made subject to a
requirement for proof that those goods have already been sold, offered for sale or
advertised to European Union consumers.
66
+
A customs authority which has established the presence in warehousing or in
transit of goods which are an imitation or a copy of a product protected in the
European Union by an intellectual property right can legitimately act when there
are indications before it that one or more of the operators involved in the
manufacture, consignment or distribution of the goods, while not having yet begun
61
While the Court of Appeal found the judgment of Kitchin J persuasive, it decided that a reference to the ECJ
was necessary because of another reference by a Belgian court on 4 November 2009 on a similar point in a
copyright and designs case and that a highly respected Dutch judge had come to an opposite view to that of
Kitchin J.
62
[2012] EUECJ C-446/09.
63
Ibid, at para 55 referring to: Case C-115/02
Rioglass and Transremar
[2003] ECR I-12705, at para 27, and
Montex Holdings v Diesel
[2006] ECR I-10881, at para 19.
64
Ibid, at para 56. In relation to trade marks as regards rights conferred by trade marks the court referred to
Rioglass and Transremar
, at para 27, Case C-405/03
Class International BV v Colgate-Palmolive Company et al
[2005] ECR I-8735, at para 47, and
Montex Holdings
, at para 21.
65
Ibid, at para 57 referring to
Class International
, at para 61, and Case C-324/09
L'Oréal SA and Others v eBay
International AG and Others
, Case C-324/09 [2011] ECR I-06011, at para 67.
66
Ibid, at para 59.
