Thanks to Tibor Gold, who had provided this précis of the AG's opinion in Montex:
The goods concerned DIESEL clothes made in Poland by a third party without authority, detained by German customs and destined for Ireland where the TM owners had no registered TM protection; these were the questions:
(a) "Does a registered trade mark grant its proprietor the right to prohibit the transit of goods with the sign?
(b) If the answer is in the affirmative: may a particular assessment be based on the fact that the sign enjoys no protection in the country of destination?
(c) If the answer to (a) is in the affirmative and irrespective of the answer to (b), is a distinction to be drawn according to whether the article whose destination is a Member State comes from a Member State, an associated State or a third country? Is it relevant in this regard whether the article has been produced in the country of origin lawfully or in infringement of a right to a sign existing there held by the trade-mark proprietor?"
Does a [registered] TM confer on its owner the right to prohibit the transit of goods in a Member State, to which goods a sign identical to the TM has been applied in a third country, and in which Member State the TM is protected, where the final destination of the goods is a Member State where they may be freely commercialised because the TM does not have protection there?
The A-G interprets Art. 5(1) & (3) of the Directive and advises the ECJ to answer
‘no. in the absence of indicia that the owner is engaging, or has in practice engaged, in acts intended to put in commerce [market] its goods in Member States where the TM is protected. It is for the national court to verify the existence of such indicia.’
[I suppose ‘indicia’ could also be translated as ‘indications’ or even ‘evidence’]
The precedents of Class C-405/03, Commission v France C-23/99 and Rioglass v Transremar C-115/02 are relied on. The risk that the goods may ‘leak out’ before reaching Ireland is insufficient for the owner to rely on. The fact that the origin of Montex’s goods is Poland is irrelevant, whether or not at the relevant time P was a Member State. Mere transit cannot harm the owner’s interests in the transit States. The only grounds for founding a suspicion that the goods were destined in reality for Germany or that they would reach that market are where there is evidence that Montex is currently engaging or has in the past engaged in marketing DIESEL clothing in Germany or in other countries where the TM is protected.
The A-G reaches the same conclusion on analyzing Reg. 3295/94.