The Court of Appeals has asked Europe's highest court to rule on whether UK authorities can seize counterfeit goods passing through the UK and allow brand owners to take legal action against the companies behind the fakes. A haul of 400 fake Nokia phones was seized by Her Majesty's Revenue and Customs (HMRC) as they passed …
Knowingly handling stolen goods
Well in this case, counterfeit.
If I (or you) passed on goods we knew to be stolen/counterfeit even theough we neither made them or sold them, we'd be in trouble. Why should it be any different for a country knowingly passing on stolen/counterfeit goods?
IMhsHO HMRC, acting as agents of the UK, should have impounded the goods. The only excuse for passing them on would be to track where they went.
But I am not a civil servant getting fat off back-handers and your taxes, so what do I know?
Not quite so simple...
IANAL, however, the offence in question is the sale and distribution of counterfeit (not stolen) goods. If the knock-off-nokias were going to be sold in this country, HMRC would have, correctly, seized them.
However, since they were only in transit through this country, from and to other countries that do not have the same treaties regarding copyright and trademarks as us, they were not subject to our trademark laws. HMRC could have got themselves in quite a lot of trouble if they had impounded the phones, from their rightful owners.
As an aside, as I understand it, if I were to make my own mobile phone and stamp 'Nokia' on it, I would not be comitting a trademark offence until I tried to pass this off as a genuine Nokia, by either advertising or selling it as such. There was no 'passing on' as you put it, presumably the items in question were in a shipping container or similiar and happened to be on ther way from their point of origin to their destination via the UK.
I can understand the point being made by the HMRC that the law should be changed to allow the goods to be impounded in such cases. However, I disagree. If that container never passes through customs, except as part of its onward journey, it is none of our business whether or not the contents infringe someone else's IP. If the container were full of something more dangerous or highly illegal, such as human slaves or highly enriched uranium, the situation would be different. I suspect there are already laws that cover such cases.
why were they checked in the first place?
if the goods where just in transit and not making a stop in the UK, why did the HMRC check the package? And in if it was for security reasons (and in this case, they clearly didn't find any security threats)..... why did they go as far as check if the phones where genuine or counterfeit?
any way, the only things this could result in is, counterfeiters will find other routes to send their stuff and the HMRC (or the airport) will lose any money it make from transit parking time.
P.S. counterfeiters won't be the only ones rerouting their stuff, anyone who doesn't the UK to check and track their goods will start to consider rerouting their stuff
Where's the problem?
IIRC, Columbia aren't quite so hot on due process. So if full details are passed to the Columbians prior to sending the container on its way, they'll likely be ready and waiting at the other end, and someone's in for a *really* unpleasant prison experience.
Unless Columbian Customs have been bribed, of course. But that ain't the UK's problem.
Trivial, but important
There's two things here.
1: As others have pointed out, this is a clear gap in the law, but should we be messing with international trade? I'm not enthusiastic about giving HMRC more powers, but this at least seems to need the courts to get involved.
2: Who made the phones? I'm going to make a guess here, and suggest that this about fake Nokia boxes, rather than any fake branding on the phones. Which means some manufacturing plant made entirely legitimate hardware, sold wholesale, and reboxed by somebody else. And it might be easy to detect. Somebody checks a box, just to be sure it isn't something other than a phone, and the alarm bells ring when the PSU or the phone don't have the name.
Trademarks, unfortunately, need the company to actively defend them.Which can mean some pretty scarey letters from Lawyers, when the company hears about something. But if trademarks had been used 50 years ago as they are today, would there be an Airfix Spitfire?