Imitations of goods protected in the EU by intellectual property rights, that are in customs warehousing or in transit in the EU, can be classified as ‘counterfeit’ or ‘pirated’ goods if it is proven that they are intended to be put on sale in the EU.

Such protected goods cannot, by the fact of being placed under a suspension procedure, infringe EU intellectual property rights. However the intellectual property rights may be infringed, even before the goods arrive in the customs territory of the EU, if the goods are the subject of a commercial act towards the EU consumers (eg: sale, offer for sale, advertising,…).

Even if there are indications that one or more of the involved operators (manufacture, consignment distribution) are about to direct such goods towards EU consumers or when they have such intention, then an EU Customs Authority can temporary detent such goods.

On the other hand, if it is not proven that these goods are intended to be put on sale in the European Union then they can’t be classified as ‘counterfeit goods’ and ‘pirated goods’.

For more information we refer to the Judgment of the Court of Justice of the European Union in the joined cases C 446/09 and C 495/09 (1 Dec. 2011)

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