In the landmark Philips Nokia judgement of 1 December 2011 (joined cases C 446/09 and C 495/09) the CJEU responded to a referral by the Antwerp Court of First Instance that in the context of an infringement action it is up to the holder of the intellectual property right to demonstrate that the allegedly infringing goods are intended to be put on sale in the European Union.
In the ensuing Belgian proceedings between Koninklijke Philips NV (“Philips”) and Far East Sourcing Ltd, the Antwerp Court of Appeal agreed with Philips in its decision of 2 October 2017 that the intended destination of the shavers at issue was indeed the European Union and asked the parties to exchange additional submissions on the validity of the design right and the infringement question. The court also held that these matters were to be addressed under the lex fori, or Benelux design law.
On 22 October 2018, the Antwerp Court of Appeal has now upheld the validity of the Philips design, ruling that considerations other than the need for that product to fulfil its technical function have inspired the designer, which is in line with the recent CJEU decision in the Doceram case (C-395/16). In addition, the court agreed with Philips that the seized shavers were slavish copies of the Philips design.
Readers are reminded that the regime of goods in transit under trade mark law is now dealt with in the EU Trademark Regulation (2015/2424/EU) and the EU Trademark Directive Directive (2015/2436/EU), but the Philips Nokia doctrine remains in place for other intellectual property rights and the Antwerp Court of Appeal ruling is therefore a significant and interesting precedent.
Koninklijke Philips NV have been represented during the whole proceedings by the Brussels’ office of HOYNG ROKH MONEGIER with Carl De Meyer, Carina Gommers and Tim Robrechts being the case handlers.