Journal Article

Intellectual property enforcement at the EU border: the challenge of private imports

Clement Salung Petersen, Thomas Riis and Jens Schovsbo

in Journal of Intellectual Property Law & Practice

Volume 7, issue 10, pages 747-762
Published in print October 2012 | ISSN: 1747-1532
Published online October 2012 | e-ISSN: 1747-1540 | DOI:
Intellectual property enforcement at the EU border: the challenge of private imports

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  • Arbitration
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Clement Salung Petersen is an Associate Professor and Thomas Riis and Jens Schovsbo are Professors all in the Centre for Information and Innovation Law, University of Copenhagen.

Today, consumers in the EU are able to purchase counterfeit and pirated goods directly from sellers in non-EU member states (e.g. in Asia) that send the goods in small consignments, typically by post, directly to the EU consumers. This provides a challenge to right holders because, unlike commercial importers of counterfeit and pirated goods, a consumer who imports such goods for his or her private use does not infringe any intellectual property rights (IPR).

This article discusses how and to what extent right holders may nonetheless use the Customs Regulation to enforce their IPR against private imports. After having dismissed the so-called “manufacturing fiction” following the decision of the ECJ in Philips/Nokia the article elaborates on an alternative method which is called the “infringing sale of goods-“approach and which may find support in the ECJ decision in L'Oréal and possibly also in the recent Opinion from the Advocate General in Donner.

The authors conclude that the ECJ will presumably bring around some clarification when it hands down its judgment in Donner. If the Court adopts the infringing sale of goods approach, it is argued that this would produce political controversial results and distort traditional intellectual property law thinking.

Journal Article.  13706 words. 

Subjects: Arbitration ; Intellectual Property Law

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