The judicial application and treatment of IP rights over goods in transhipment within a Maltese and European dimension

Abstract

Throughout the years the infringement of IPRs has grown, and as a result so have the protective measures against them grown. With the vast advance in technology and resources all over the world it has become easier for infringers to produce fake goods whilst also circumventing the protective measures to cross borders without being stopped. Although the documents attached to goods do generally contain a country of origin and also a country of destination, there is no saying that the goods might not be diverted onto the market of another country whilst in transit. Therefore this element of risk is always present and taken into consideration by both the Maltese Courts and the CJEU when handing down judgments relating to counterfeit goods in transit. The judgments of the CJEU have been particularly inconsistent, leaving the IPR holder in the dark about how to proceed to protect their rights over goods in transit. Although there have been advances in the law aimed at clarifying the situation, and while some Member States’ national law or national courts cater for infringing goods while in the state of transit, as yet there is still no specific European Law dealing with this issue, and it therefore remains unclear. The new proposed amendments to the TMD and CTMR are promising for the rightholder. While the judicial application and treatment of goods in transit through Malta has been consistent, the situation from a European perspective remains vague and there is much to be desired from both European legislation and judgments. Ultimately, what is essential in combating infringing goods from crossing borders is a strong relationship of coordination and cooperation between the Customs Authorities and the right‐holders themselves.