This is the story of Mr Blomqvist, a private citizen of Denmark who bought, for his own use, a faxe Rolex watch via Internet, on a chinese e-commerce website.

In November 2011, the Danish Maritime and Commercial Court held that the import of such a fake watch was violating the trademarks rights of Rolex and as a consequence, that Danish Customs were able to detain the good and to destroy it, without compensation.

As M. Blomqvist could not accept the fact that he had to buy another - genuine - watch, he appealed against this decision.

On September 18, 2012, the Danish Supreme Court decided to submit a preliminary question to the European Court of Justice (ECJ).

In a nutshell, the Supreme Court wished the ECJ to clarify:

- whether "distribution to the public" (as mentioned in Directive 2001/29/EC) covers the situation in which a private person buys a product via a non-EU online store or implies that the seller - apart from the fact that an agreement on sale has been made and that the seller has effectuated the shipment - has aimed its advertisement towards the public in the member state of the buyer?

- whether, under the Customs Regulation (1383/2003), goods infringing IP rights sold to a person residing in the territory of a Member State through an online sales website in a non-member country, enjoy the protection afforded by the regulation at the moment they enter the territory of that Member State. In other words, The ECJ was requested to say if that sale must be considered, in that member state, as constituting "use in the course of trade".

These two questions have to be seen in the light of recent ECJ judgments in L'Oreal and Philips-Nokia.

On February 6 2014, th ECJ ruled as follows:

"Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights must be interpreted as meaning that the holder of an intellectual property right over goods sold to a person residing in the territory of a Member State through an online sales website in a non-member country enjoys the protection afforded to that holder by that regulation at the time when those goods enter the territory of that Member State merely by virtue of the acquisition of those goods. It is not necessary, in addition, for the goods at issue to have been the subject, prior to the sale, of an offer for sale or advertising targeting consumers of that State."

Trademarks holders should be very satisfied! Mr. Blomqvist not that much...

Please find hereby the link to the ruling in the Rolex case:

http://curia.europa.eu/juris/document/document.jsf?text=&docid=147506&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=494380

You were waiting for it... The Rolex case finally came out!

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