Merci Beaucoup Tibor

Thanks to Tibor Gold, who had provided this précis of the AG's reckon inward Montex:

The goods concerned DIESEL clothing made inward Poland past times a 3rd political party without authority, detained past times High German customs in addition to destined for Republic of Ireland where the TM owners had no registered TM protection; these were the questions:

(a) "Does a registered merchandise score grant its proprietor the correct to prohibit the transit of goods alongside the sign?
(b) If the respond is inward the affirmative: may a item assessment hold upward based on the fact that the sign enjoys no protection inward the province of destination?
(c) If the respond to (a) is inward the affirmative in addition to irrespective of the respond to (b), is a distinction to hold upward drawn according to whether the article whose goal is a Member State comes from a Member State, an associated State or a 3rd country? Is it relevant inward this regard whether the article has been produced inward the province of root lawfully or inward infringement of a correct to a sign existing at that topographic point held past times the trade-mark proprietor?"

The A-G conduct away conflated these into a unmarried query ‘requiring a global answer’:

Does a [registered] TM confer on its possessor the correct to prohibit the transit of goods inward a Member State, to which goods a sign identical to the TM has been applied inward a 3rd country, in addition to inward which Member State the TM is protected, where the concluding goal of the goods is a Member State where they may hold upward freely commercialised because the TM does non accept protection there?

The A-G interprets Art. 5(1) & (3) of the Directive in addition to advises the ECJ to answer
‘no. inward the absence of indicia that the possessor is engaging, or has inward exercise engaged, inward acts intended to position inward commerce [market] its goods inward Member United States of America where the TM is protected. It is for the national courtroom to verify the beingness of such indicia.’
[I suppose ‘indicia’ could every 2nd good hold upward translated every 2nd ‘indications’ or fifty-fifty ‘evidence’]

The precedents of Class C-405/03, Commission v France C-23/99 in addition to Rioglass v Transremar C-115/02 are relied on. The run a hazard that the goods may ‘leak out’ earlier reaching Republic of Ireland is insufficient for the possessor to rely on. The fact that the root of Montex’s goods is Poland is irrelevant, whether or non at the relevant fourth dimension P was a Member State. Mere transit cannot terms the owner’s interests inward the transit States. The solely grounds for founding a suspicion that the goods were destined inward reality for Federal Republic of Federal Republic of Germany or that they would accomplish that marketplace are where at that topographic point is prove that Montex is currently engaging or has inward the past times engaged inward marketing DIESEL have on inward Federal Republic of Federal Republic of Germany or inward other countries where the TM is protected.
The A-G reaches the same determination on analyzing Reg. 3295/94.