The IPKat's post yesterday ("British customs attract international attention", here) was mild enough, but it has drawn a response from a tireless fighter for justice for rights owners and consumers, the Anti-Counterfeiting Group's Ruth Orchard, which has inspired him to return to the theme with greater resolve. Writes Ruth:
"Since you ask about whose and what opinions were sent to Her Majesty's Government (HMG), here are the comments submitted by the Anti-Counterfeiting Group (ACG) here and MARQUES here to the Intellectual Property Office (IPO) International Policy Directorate in February, in response to the request they sent to 'interests'. Interestingly, the question the IPO asked its 'Interests' (in order to advise HMG how it should respond) was different to the question posed by the Court of Justice of the European Union (ECJ):The IPKat says, here is an opportunity for the IPO and the British government to engage in a little valuable PR by engaging with an important organisation representing IP rights owners -- owners who at their own expense and inconvenience strive to police their markets and keep them free from poisonous, dangerous and economically damaging fakes. The answer the ACG received to its question is downright insulting. It may not be the British government's policy to comment, the government after all being sovereign and free to do whatever it wishes, without any sense of accountability to the companies which -- while lacking the vote-- contribute billions of pounds to the Exchequer through their taxes. It is however the IPKat's policy to comment: come on, tell us -- are you supporting the IP community or not? Surely you are not laying yourselves open to the accusation (which no polite Kat would make) of being so pusillanimous that you can't even tell the ACG whether you propose to intervene in this case?Whether customs authorities should detain goods bearing a Community trade mark that are in transit through the EU from a non-Member State to another non-Member State, in the absence of evidence that they will be diverted onto the market in Member States.We understood that responses to this question would provide HMG with stakeholder views and contribute helpfully to its own intervention. (ACG's response - which I hope does not betray too much of the extreme frustration we all feel! - was sent with Nokia's prior input and approval, on behalf of all our members, for whom this is a very important issue). But we don't know if HMG actually made any observations to the ECJ, although we did ask at the time - the IPO reply was:"I am afraid that it is not government policy to comment on whether or not the UK proposes to intervene in specific cases. The case details you are requesting will be available to the public in the Curia website in due course".The Curia website does not contain anything other than the actual case and the question referred to the ECJ and I can't find any public record of Member States' interventions (we asked our colleagues in other EU countries to lobby their own governments to intervene, as well).
Just to add to the excitement, we also still don't know whether the ECJ will accede to the Court of Appeal's request to join the Nokia referral with another transit case (brought under a previous Customs Regulation), Case C-446/09 Koninklijke Philips Electronics N.V. v Lucheng Meijing Industrial Company Ltd and others. The question from the Philips case (which the INTA submission refers to, but doesn't replicate, in its submission) is:Does Article 6(2)(b) of Council Regulation (EC) No 3295/94 of 22 December 1994 (the old Customs Regulation) constitute a uniform rule of Community law which must be taken into account by the court of the Member State which, in accordance with Article 7 of the Regulation, has been approached by the holder of an intellectual-property right, and does that rule imply that, in making its decision, the court may not take into account the temporary storage status/transit status and must apply the fiction that the goods were manufactured in that same Member State, and must then decide, by applying the law of that Member State, whether those goods infringe the intellectual-property right in question?