European Union. The ECJ gives a judgment on the applicability of Community IP Law in counterfeit goods transiting through a Member State
The Rolex case arose when several companies requested the Landesgericht Eisenstadt to open a judicial investigation after counterfeit goods violating their trademark rights have been confiscated by the Austrian customs authorities while in transit through the country.
According to an interpretation of the Austrian Trademark Law, the mere transit of counterfeit products through the country (i.e. not the export or import) does not constitute criminal offence. The Austrian Court referred thus to the ECJ in order to find out if such an interpretation of the Austrian Law is compatible with the provisions of Council Regulation (EC) No 3295/94 as amended by Council Regulation (EC) No 241/1999.
The Court stated that these provisions "are applicable to situations in which goods in transit between two countries not belonging to the European Community are temporarily detained in a Member State by the customs authorities of that State".
Furthermore, the Court stated that "the duty to interpret national law so as to be compatible with Community law [..] cannot, of itself and independently of a law adopted by a Member State, have the effect of determining or aggravating the liability in criminal law", even if there is an eventual failure to comply with the Regulation provisions that could imply an action against the Member State based on the articles 226 EC and 227 EC.
