For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

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Thursday, 31 July 2008

MP4 players stopped in their tracks

The IPKat has heard from his friends at international IP firm Howrey that earlier this month in Sisvel v Sosecal, the President of the District Court of The Hague ruled confirmed that, notwithstanding that unhelpful ruling of the European Court of Justice in Case C-281/05, Montex Holdings Ltd v Diesel SpA (noted in "Diesel can't strip Montex of its trousers", here, by the IPKat), you can still seize transit goods in the Netherlands under Council Regulation 1383/2003 -- the provision that allows the suspensive detention of goods when they enter the European Union so that you can find out if they're infringing or not.

Montex v Diesel appeared to rule that detention was not possible where the allegedly infringing goods were not intended for the country through which they were being transported and where they were destined for release into the market in another country in which their marketing would be lawful. But in Sisvel v Sosecal (July 18, 2008) the President of the court disagreed.

What actually happened was this: the Dutch customs detained a stock of MP4 players under Council Regulation 1383/2003. These players came from China, were intended for South America and were re-loaded in The Netherlands, where they were detained by customs. Sosecal said that, since the players were only in transit in the Netherlands, they couldn't be seized.

Left: if ECJ rulings won't prevent seizure of transit goods, try painting them with "anti-seize"!

The President however concluded that Montex v Diesel was a trade mark case while the alleged infringements before him involved patents. In any event, Montex v Diesel only dealt with the interpretation of the trade mark harmonization directive (Directive 89/104), not with the provisions of Council Regulation 1383/2003. He also held that the ECJ's ruling in Case C-383/98 Polo Lauren v Dwidua should be read as holding that the right of suspensive detention under an earlier Regulation that Council Regulation 1383/2003 replaced remained applicable -- and there was nothing in Montex v Diesel to suggest that the ECJ had changed its mind.

The IPKat is surprised at this analysis. It doesn't accord with his view of the thrust of the ECJ's decisions in Montex v Diesel or Case C- Class International v Colgate, and he wonders if it could survive an appeal. Merpel says, isn't Sisvel a licensor of much-loved Dutch electronics giant Philips? But this couldn't be of any bearing ...

Combat seizures here
Seize the day here
How not to spell seize here

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