This morning the CJEU (second chamber) handed down judgement in case C-98/13, Martin Blomqvist v Rolex SA,
Manufacture des Montres Rolex SA
The point at issue before the CJEU (set out in a series of questions which the court condensed to a single answer) was that, in the scenario where somebody purchased from a non-EU website counterfeit goods (in this case, a fake Rolex), could these be seized by customs, it being apparently common ground that the Customs Regulation required there to be an infringement of IP in the EU/in the Member State concerned.
At heart, the referring court was concerned as to whether, in the factual scenario described above, which one might describe as a private importation by an individual, there was any distribution to the public, within the meaning of the copyright directive, and any use in the course of trade, within the meaning of the trade mark directive and the trade mark regulation.
The CJEU seemed largely untroubled by such concerns, reaching the conclusion that:
Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights must be interpreted as meaning that the holder of an intellectual property right over goods sold to a person residing in the territory of a Member State through an online sales website in a non-member country enjoys the protection afforded to that holder by that regulation at the time when those goods enter the territory of that Member State merely by virtue of the acquisition of those goods. It is not necessary, in addition, for the goods at issue to have been the subject, prior to the sale, of an offer for sale or advertising targeting consumers of that State.
The Court relied on the earlier Phillips case which the IPKat looked at - not with an entirely happy face - here.
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