CUSTOM-BUILT TRADE MARK OPINION

The IPKat draws his readers' attention to some bank-holiday reading. In Class International v Unilever, Advocate General Jacobs has discussed the trade mark position of goods which are in transit from one non-EU state to another but which travel via the EU.

1. Trade mark owners can't oppose the entry into the EU of non-EU goods bearing their trade marks on the grounds that such entry would constitute use of their trade marks under Art.5(1) of the TM Directive.
2. For as long as such goods remain non-Community goods, offering them for sale or selling them will not constitute ‘using [the mark] in the course of trade’ within the meaning of Article 5(1) of the TM Directive.
3. The trade mark owner can, under Article 5(1) of Directive 89/104, prevent their release into free circulation in the European Economic Area.
4. In trade mark infringement proceedings, the burden of proof is a matter for national law except with regard to the question whether the goods were put on the market in the European Economic Area under that trade mark with the proprietor’s consent.