Destruction of Goods as a Corrective Measure Ordered by National Courts
Published on 10th Jul 2023
Article 10(1) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, must be interpreted as: precluding the interpretation of a provision of national law according to which a protective measure in the form of the destruction of goods may not be applied to goods which have been manufactured and to which an EU trade mark has been affixed, with the consent of the proprietor of that mark, but which were placed on the market in the European Economic Area without his or her consent.
Dr. Agnieszka Sztoldman comments on a dispute between a Polish online shop operator and a multinational FMCG company over the protection of the renowned Hugo Boss trademark in the pages of the international journal Journal of European and International IP Law, published by Oxford University and Ch. Beck. Even if the goods are not counterfeit and the trade mark rights have not been exhausted, a trade mark owner can demand the destruction of infringing goods.
As a result, in the absence of clear guidelines under EU and Polish law, the dispute involved a fairly common situation in which branded goods that the trade mark owner does not intend to sell directly or through its resellers or distributors in the European Economic Area (EEA) are still sold in certain EEA countries.
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