Detention of ‘Non-Union Goods in Transit’ at the EU borders and the right to freedom of transit: a new battle between IP and international trade?

Abstract

Hesham Abdelgawad is a Judge at the Egyptian State Council. He also gives practical legal seminars in several universities in Egypt. In addition, he holds three Master of Laws degrees (LL.Ms) from universities in the UK, USA and Egypt. This article addresses one of the problematic dilemmas of the nexus between intellectual property and international trade, namely determining the consistency of the recent developments in the EU trade mark Directive and Regulation in relation to goods in transit in one of the EU Member States with the right to freedom of transit foreseen in Article V of the GATT. One of the most intricate challenges for intellectual property lawmakers is the question of how to adopt laws that are consistent with principles governing international trade between countries. The new EU trade mark Reforms generate serious concerns as to their compatibility with GATT Article V, especially the provisions related to the seizure of goods placed under transit in the EU that are not destined for the EU internal market, known as ‘Non-Union goods’. This article brings valuable clarification to IP policy and law makers, to lawyers involved in international trade and IP litigation, as well as issues of border measures for the enforcement of IPRs, since it provides explanation and overview of the relevant CJEU case law and the academic debate related to the topic in question. The article also provides a useful source for academics interested in the interaction between IP and international trade.