The Seizure of Goods in Transit – Can EU Trade Mark Legislation Serve as a Model

The Seizure of Goods in Transit – Can EU Trade Mark Legislation Serve as a Model?
Martin Senftleben, Free University of Amsterdam

978-94-035-0330-1
Kluwer Law International BV, The Netherlands

The issue of IP enforcement over goods in transit has been particularly controversial and also gave rise to complaints before the WTO due to conflicts with the principle of free transit enshrined in the GATT Agreement.
In the field of enforcement, the potential clash between free trade rules and the aim to ensure effective protection of intellectual property (IP) clearly comes to the fore: while Art. V of the General Agreement on Tariffs and Trade (GATT 1994)1 explicitly recognizes the freedom of transit, Art. 51 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)2 eschews an explicit prohibition of customs measures against counterfeit and pirated goods in transit.3 As Art. 9(4) of the EU Trade Mark Regulation (EUTMR)4 and Art. 10(4) of the Trade Mark Directive (TMD)5 show, this back door to transit seizures remains a lasting temptation for lawmakers