On March 6, 2019, the Serbian Supreme Court of Cassation issued a decision stating that the trademark holder is authorized to prohibit the transit of goods infringing their intellectual property rights through Serbia, and not only the import or export of such goods. This is the first ruling of its kind in Serbian practice, and is therefore significant because it is likely to influence future decisions related to goods in transit.
While the previous Serbian trademark law explicitly prohibited the transit of goods infringing IP rights, the transit of goods through Serbia is not mentioned in the current trademark law (in force as of 2013), which only prescribes that a trademark holder can prohibit, among other things, the import or export of infringing goods bearing their trademark. The Serbian Customs Law, on the other hand, prescribes that the import, export and transit of infringing goods are not permitted, and entitles customs officials to detain goods suspected of infringing IP rights in any of these cases.
PETOŠEVIĆ Serbia represented the trademark holder, a well-known sportswear company, in court proceedings against a Bosnian company that transported counterfeit goods through Serbia into neighboring countries. On November 25, 2015, the Commercial Court in Belgrade ruled in favor of the plaintiff, but on August 23, 2017, the Commercial Appellate Court decided that the rights holder cannot prohibit the transit of counterfeit goods through Serbia because the trademark law does not explicitly prohibit it. Even though the case went to the Supreme Court of Cassation, Serbian Customs had to release more than 5,500 infringing goods, because proceedings before the highest court do not postpone the execution of the lower courts’ decision. However, the Supreme Court of Cassation eventually overturned the decision of the Commercial Appellate Court, ruling that the rights holder can prohibit the transit of goods infringing IP rights.
Until this decision, no Serbian court had argued that rights holders can prohibit the transit of counterfeit goods through the country. Customs authorities were therefore required to release goods in transit even if they were proven to infringe IP rights. This is the first time that a case regarding goods in transit reached the Supreme Court, allowing rights holders to invoke the ruling in their struggle against this type of trademark infringement. While lower courts in Serbia are not obligated to follow the practice of higher courts, they rarely rule contrary to higher courts’ decisions.