Danish court backs CJEU Rolex decision

A Danish court has upheld a decision by Europe’s highest court which ruled that goods imported into the European Union (EU) from online channels based outside EU borders can be destroyed.

The ruling means that trademark infringing items sent to private purchasers can be detained, confiscated and then destroyed by customs, without the owner’s consent or the need for compensation.

The case, which centres on a Danish individual and luxury watchmaker Rolex, had already been heard twice in Danish courts prior to the latest ruling.

It had to be considered by the Court of Justice of the European Union (CJEU) after the Danish Supreme Court (Højesteret) referred questions to it when considering the case.

The dispute first started in 2010 when the individual, known as Mr Blomqvist, bought a counterfeit Rolex watch from a Chinese website.

The watch was detained by Danish customs and, after Rolex proved it was not authentic, Blomqvist was asked by the Swiss company to destroy the model.

Arguing that the watch had been bought legally, Blomqvist refused, prompting Rolex to initiate litigation at the Sø- og Handelsretten (Maritime and Commercial Court) demanding he agree to the watch’s destruction.

The court ruled in favour of Rolex so Blomqvist took the case to the Supreme Court, which then asked for CJEU clarification.

The CJEU was asked whether there is any “distribution to the public” within the meaning of the copyright directive, and any “use in the course of trade” within trademark regulation.

In its ruling, issued on February 6, the CJEU said there was sufficient evidence to meet both the “distribution to the public” and “use in the course of trade” standards.

Its judgment was upheld by the Supreme Court on May 15.

A CJEU preliminary ruling allows courts of member states to refer questions to it about the interpretation of EU law.