The ruling of the CJEU (Syed Case, C-572 / 17) of last December 19 is issued in the context of a request for a preliminary ruling filed by the Supreme Court of Sweden in a criminal procedure processed by the Prosecutor's Office of said Court against Mr. Imran Syed for violation of trademarks and intellectual property rights over literary and artistic works.
Mr. Syed ran a retail business in Stockholm, Sweden, selling clothing and accessories featuring rock music motifs. In addition to the products offered for sale in the store, Mr. Seyd kept merchandise of this type in an adjacent warehouse and in another located in Bandhagen (Sweden), which is located on the outskirts of Stockholm, and it is stated that Mr. Seyd's store Syed regularly supplied himself with goods from these warehouses.
The question arises whether goods that a person has in a warehouse and that bear a protected motif can be considered offered for sale when that person offers identical goods for sale in a retail business that he runs..
The CJEU recalls in this ruling that an operation of this type may constitute a violation of the exclusive right of distribution (article 4, paragraph 1, of the Directive 2001/29) although said operation is not followed by a transfer to the acquirer of the ownership of the protected work or its copy (expressly citing its ruling of May 13, 2015, Dimensione Direct Sales, C ‑ 516/13. To comment on this sentence on this blog, here). Therefore, An act prior to making a sale may constitute a violation of said right of distribution. of a work or a copy of a work protected by copyright carried out without the authorization of the owner of that right and with the aim of making said sale. Although the completion of the sale is not a necessary element to characterize a violation of the right of distribution, It must be proven, in any case, that the goods in question are actually intended to be distributed to the public without the authorization of the right holder., in particular by putting it up for sale, in a Member State where the work is protected.
The fact that a person who sells goods bearing copyright-protected motifs in a shop without the authorization of the copyright holder stores identical goods may constitute an indication tending to demonstrate that the stored goods are also intended to be sold in that store and, therefore, that this storage may constitute an act prior to making a sale that may violate the distribution right of that owner.
Although the distance between the place of storage and the place of sale may constitute an indication to demonstrate that the goods in question are intended to be sold at that place of sale, that indication cannot be decisive in itself. However, this indication can be taken into account in a specific examination of all the elements that may be relevant, such as, for example, the regular supply of the store with goods from the warehouses in question, accounting data, the volume of sales and orders in relation to the volume of stored goods and sales contracts in progress.
The ruling finally ends by declaring that the storage by a trader of goods bearing a motif protected by copyright in the territory of the Member State of storage may constitute an infringement of the exclusive right of distribution when said trader offers them for sale in a shop. without authorization of the owner of said copyright goods identical to those stored, provided that the stored goods are actually intended for sale in the territory of the Member State in which said reason is protected. The distance between the place of storage and the place of sale cannot, in itself, constitute a decisive element in determining whether the stored goods are intended for sale in the territory of that Member State.
With this ruling, the CJEU comes to put order, once again, to the problem of acts or means prior to the sale of products that infringe copyright which, unfortunately and painfully, affect creators too frequently.
Author Juan José Caselles
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