The European Court of Justice (ECJ) ruled last week that national customs authorities in European Union Member States can't detain goods at their borders if those goods were lawfully manufactured in another EU country and are only in transit through a country where they infringe while on their way to another country in which they can be lawfully sold. This is the case whether the country of destination is an EU Member State or, as in this case, a non-EU country such as Poland. This decision follows a complaint by Spanish glass makers Rioglass and transhipment agents Transremar that the French had unlawfully detained car windows and windscreens made in Spain for sale in Poland. The goods bore Peugeot, Citroen or Renault logos or trade marks as well as those of the maker and the French authorities seized them, alleging they infringed national trade mark rights. The ECJ said French law shouldn't allow this: the principle of free movement of goods within the EU was protected under Article 28 of the EC Treaty and the derogation in favour of intellectual rights found in Article 30 did not apply unless it operated so as to safeguard rights which constitute the specific subject-matter of such property. That was not the case here, where the goods in transit were not intended to be put on to the market in France (or anywhere else in the EU) and did not therefore affect the "specific subject-matter" of French trade mark law.

The IPKat recognises that the principle enunciated by the ECJ is a correct expression of EU law, but is nonetheless concerned. Poland and another nine countries become members of the EU next May. When that happens, how will intellectual property owners in the 15 current Member States be able to monitor the movements of goods such these windows and windscreens, which cannot currently be sold in France but which will be effectively able to circulate without restriction within the enlarged European Union after next May?

The current and future (from 1 July 2004) EU IP customs seizure Regulations
Websites of European customs authorities here
More on European customs here, here and here

"LET MY WINDSCREENS GO" "LET MY WINDSCREENS GO" Reviewed by Jeremy on Friday, October 31, 2003 Rating: 5

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