A DUAL ACCOUNT OF THE INTERFACE OF TRADEMARKS AND GOODS IN TRANSIT IN THE EU LAW
A DUAL ACCOUNT OF THE INTERFACE OF TRADEMARKS AND GOODS IN TRANSIT IN THE EU LAW

Summary/Abstract: Intellectual property (IP) protection and cross-border trade are liable to clash on many fronts; without a doubt international freedom of transit is a contentious one of them. Whilst the combat against trading in counterfeit and pirated goods has increasingly been a centerpiece of global IP agenda, substantive IP laws and administrative measures employed in that battle are often liable to erect barriers to legitimate trade. With the express acknowledgement of delicate position of the European Union -which undertakes to contribute into the world trade- in this intricate interplay, this article analyses the doctrinal assets of the Court of Justice of the European Union on the exercise of IP rights and border measures against the goods in transit. It shall firstly illustrate the reception of the same issue in the particulars of the intra-Union trade (internal transit) whereby the law tailored to the Internal Market, i.e. free movement provisions, applies. Secondly, it shall focus on the treatment of goods originating from outside the Union and are leaving or entering the Union under external transit procedures whereby we tend to observe a sequential pattern of subjugation - liberation – post-liberation. Having scrutinized the gradual development and the (quite cyclical) paradigm shifts in the latter respect, the article reflects on the Union`s compliance with its international obligations on the freedom of transit which seems to have become an increasing concern in the sequel of the amendments introduced by the EU trade mark Directive [2015/2436 (EUTMD)] and the EU trade mark Regulation [2015/2424 (EUTMR)]. Finally, it proposes a cautious interpretative approach in consideration of the said international obligations and for the maintenance of transit-friendly status-quo that has been progressively attained by the jurisprudence of the Court of Justice of the European Union.

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