Tuesday, 23 November 2010

IPKAT's Transhipment Update - Nokia

Following a tweet from Jeremy on Friday Afro-IP made reference to a transhipment case that has split opinion in Europe. If Europe makes transhipment of counterfeit goods unlawful, Africa may become (even) more appealing to counterfeiters moving counterfeit goods around the globe. If transhipment is not unlawful in Europe then African states may take its lead. The IPKAT blog provides this useful update.


Anonymous said...

The author has stated "if Europe makes transhipments of counterfeits unlawful" which is a confusing statement. The history behind Nokia is not as to whether the actual transhipment is unlawful but whether customs have the right to make a detention based on whether goods in transit constitute an infringement. The point is that currently the vast majority of EU Member States ALREADY do not permit their customs officials to detain goods that are in transit to destinations outside the EU (Malta being the one significant exception to this) This follows the judgment in Montex v Diesel despite Regulation 1383 containing provisions for detention of in transit counterfeits. Therefore Nokia will merely clarify Montex with regard to whether customs can detain an in transit consignment or not. In my opinion as a practitioner focusing on preventing counterfeits reaching Sub Saharan Africa, it is important that customs are allowed to detain counterfeits in transit as most cases I see in the EU are consignments destined for Africa.

Darren said...

Thanks for the comment. Of course a counterfeit in Europe may not be a counterfeit at its destination so a detention in Europe (even if ultimately there is a release) may restrict access to the product in Africa which, in the case of life-saving drugs, may be particularly serious. See also: http://tinyurl.com/3xqtz34. EU laws on re-packaging and re-labeling of legitimate goods may also give rise to a seizure.

The position is different for the transhipment of the obvious eg a fake spare part for an engine made of plastic which is not welcome - even if a law has not been enacted in the relevant African state to make it qualify as counterfeit.