CHANGES IN THE REGULATIONS ON THE BRAND OF THE EUROPEAN UNION (REGULATION (EU) 2015/2424) IN RESPECT OF GOODS IN TRANSIT (ARTICLE 9.4)
Before the effective date of the new Regulation on March 23, the contribution of the judgment Nokia- Philips (CJEU, 1st December 2011, Cases C-446/09 and C-495/09, Koninklijke Philips Electronics NV, Nokia Corporation et al.), goods in transit could be controlled by customs but could not be retained in case of trademark infringement of the European union, that if there was concrete evidence such as to suggest the infringing products may be marketed in the European Union. The burden of proof therefore incumbent upon the trade mark owner of the infringed European Union.
Since March 23, the situation has greatly changed since the burden of proof has been reversed. Indeed now, the retaining counterfeit goods in transit is possible by the trade mark proprietor of the European Union, unless the holder (or declarant) the products in question can prove that the trade mark owner of the EU has no right to prohibit the marketing of goods in the country of final destination.
The burden of proof is reversed to the extent that it is the holder of the goods to prove that the goods are destined for a third country outside the European Union, in which the owner of the trademark in the European Union invoked was not right.