Journal Article

Carriers and trade mark infringements: should carriers care?

Lambert Pechan and Marius Schneider

in Journal of Intellectual Property Law & Practice

Volume 5, issue 5, pages 350-357
Published in print May 2010 | ISSN: 1747-1532
Published online May 2010 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpq047
Carriers and trade mark infringements: should carriers care?

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Legal context

The liability of carriers and other service providers in matters involving trade mark infringements is regulated by harmonized Community law, under the Trade Mark Harmonisation Directive, the Enforcement Directive, and the Border Measures Regulation. This article focuses on the liability of intermediaries, since the mere carriage of infringing goods is not a priori a trade mark infringement. Since the liability of carriers is at the frontier between Community law and national law on civil liability and unfair competition, some national courts have sometimes decided that carriers and service providers are liable as infringers.

Key points

Carriers who do not cooperate with right-holders trigger a reaction that can be compared to the domino effect: if carriers do not disclose information they become actionable. The same applies if they do not agree to surrender goods for destruction. In these cases, they increase the risks of bearing the legal costs arising from their refusal and of being held accountable under national rules on civil liability and unfair competition laws.

Practical significance

To protect their legal position towards consignors with whom they are engaged in a carriage contract, carriers should be recommended to use general terms and conditions allowing them to surrender infringing goods in certain circumstances and to claim back costs from the counterfeiter and the consignor.

Journal Article.  6163 words. 

Subjects: Arbitration ; Intellectual Property Law

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