To allow seizure, the Regulation requires that these goods ought to be distributed to the public and in the course of trade. In this case, a Danish court has referred a preliminary ruling to CJEU. The application of the aforementioned Regulation to products bought online by an individual was at stake. And the Danish court underlined that this scenario resembled importation for personal purposes rather than trade.
In a terse decision, the Court of Justice deliberated 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 website in a non-member country enjoys the protection afforded to that holder by that regulation at the time where goods entered the territory of that Member State”. The Court therefore considered the criteria set up by the Regulation to be redundant.
The Court further concluded that “it is not necessary […] for the goods at issue to have been subject, prior to the sale, of an offer for sale or advertising targeting consumers of that State”. In accordance with its established jurisprudence, Philips case (Case C-446/09 Philips and Nokia, December 1st, 2011), the CJEU casted aside the criteria of focalization on the activities of the website.
Overall, this ruling leads to a necessarily larger application of the Regulation, which should apply to all goods entering the European territory.
By voiding the criteria of the Customs Regulation, the Court of Justice would be ultra vires. Regarding preliminary rulings, its role is limited to the interpretation of the European legislations. However, the position of the Court is understandable since the protection granted to holders of intellectual property rights is essential. In a globalized economy, the protection of innovations by European companies must be a priority.