Goods in transit and Trade Mark Law (and Intellectual Property Law?)

The new trade mark law texts of the European Union aim, inter alia, at overruling the doctrine proposed by the EU Court of Justice in a long series of decisions – most notably Montex and Philips and Nokia – in relation to trade mark law and goods in transit. The wording of the new texts seems to impose on the trade mark holder requesting the blocking of goods in transit, only the burden of proof of the existence of his trade mark right and of its infringement in the country of transit. The author suggests the possibility of an alternative interpretation, according to which the trade mark holder, in order to obtain the blocking of goods, must also give at least a prima facie evidence of the infringement of his right in the country of final destination. The reasons for this interpretation are identified in the principle of freedom of transit imposed by the GATT, in the general rules on the burden of proof, and in the principle of the proximity of the evidence. In conclusion, the author signals that the new rules are not technically justified by specific lines of trade mark law, hence they could be extended easily – by the legislator or by case law – to all other intellectual property rights.