The EU Court of Justice has ruled that the sale of counterfeit goods from non-EU websites can amount to infringement for the purposes of the Customs Regulation (Council Regulation (EC) No 1383/2003, recently replaced by Council Regulation (EC) No 608/2013) even though the goods are not offered to, or targeted at, EU consumers prior to sale.

The case concerned a counterfeit Rolex watch that had been purchased online from a Chinese seller by a Danish resident. On its arrival in Denmark, the parcel was inspected by the customs authorities: they suspended customs clearance, suspecting that it was counterfeit and that it infringed copyright, and informed both Rolex and the purchaser. Rolex sought the continued suspension of customs clearance, established that the watch was in fact counterfeit and then requested the purchaser to consent to its destruction.  When the purchaser refused to consent, Rolex obtained a court order for the destruction of the watch without compensation.

The matter was appealed to the Danish Supreme Court which referred a series of questions on the interpretation of the Customs Regulation to the EU Court of Justice.
The EU Court confirmed that there is no requirement for counterfeit goods to be the subject of an offer for sale or an advertisement targeted at consumers in the EU in order for infringement to occur, and such goods may be seized at the border by customs officials.

Contributed by: Brian McElligott

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