In the July/August edition of this bulletin we reported on a decision of Mr Justice Kitchin in the case of Nokia Corporation v Her Majesty's Commissioners of Revenue & Customs (HMRC). For a copy of the report, click here.
The case concerned fake Nokia telephone handsets, bearing the NOKIA trade mark, arriving at Heathrow Airport in transit between Hong Kong and Columbia. Nokia applied for judicial review of HMRC’s decision not to seize the goods. HMRC had argued that the handsets were not ‘counterfeits’ within the meaning of the Counterfeit Goods Regulation because they had never been put on the market in the UK. The judge upheld HMRC’s actions.
Nokia appealed. In light of a conflicting decision by a Belgian court, the Court of Appeal has made a reference to the ECJ for a preliminary ruling on these issues. The exact questions referred have yet to be published but they will essentially address whether non-EU goods in transit from one non-EU Member State to another are capable of constituting ‘counterfeit goods’ within the meaning of the Counterfeit Goods Regulation if there is no evidence that they will be released into free circulation in the EU or be illicitly diverted into the EU market.