Copyright infringement is present due to stored goods in that Member State of storage if these stored goods without the author’s consent constitute copyright infringement and they are intended for sale in the territory of that Member State.
The focus is on a Swedish warehouse
Mr Syed ran a retail shop in Stockholm (Sweden) for clothes and accessories with rock music motifs. In addition, he stored the goods in a warehouse adjacent to the shop and in an additional warehouse in another part of Stockholm, from where goods were regularly delivered to the shop.
It was found that the sale of several of those goods infringed trade mark and copyright law, since Mr Syed had unlawfully made available to the public clothes and fabrics bearing the copyright motifs of rock musicians. In his appeal, Mr Syed argued that he had infringed the law only in respect of the goods in his shop and not in respect of the goods in the storerooms. The purchase and storage of goods cannot be regarded as such active action. The Court of First Instance (Tingsrätt) rejected that argument, as did the Advocate General of the Supreme Court.
The referring Swedish court (Högsta domstol, Supreme Court of Sweden) pointed out that it follows from the judgment in Dimensione Direct Sales and Labianca (C-516/13, EU:C:2015:315) of 2015 that the distribution right laid down in Article 4(1) of Directive 2001/29 may already have been infringed by transactions or acts preceding the conclusion of the contract of sale. However, the question arises as to whether someone who keeps goods bearing a protected design in a warehouse offers them for sale if he offers identical goods for sale in his retail shop. In the preliminary ruling, the Swedish Supreme Court asked for an interpretation of Article 4(1) of Directive 2001/29 concerning the exclusive right of the author. Is there also an infringement of copyright by goods in a warehouse of the person offering those goods who is guilty of infringing copyright with the goods in the shop?
Copyright infringement also by stored goods
Today’s ruling strengthens copyright law and also the action against unauthorised product piracy. Today, the European Court of Justice ruled that stored goods bearing a copyright protected motif in this Member State of storage without the consent of the author constitute copyright infringement if the stored goods are actually intended for sale in the territory of this Member State.
Parts of the goods not intended for sale?
It cannot be ruled out that some or all of the goods stored in circumstances such as those in the main proceedings are not intended for sale in the territory of the Member State, the Court conceded today. In such a case, the actual destination of the goods concerned would not be taken into account and all stored goods would be treated equally, although they may in principle have different destinations. It is therefore for the national court to determine, on the basis of the evidence before it, whether all or some of the goods identical to those sold in the shop in question should be marketed in that shop.
The distance between the place of storage and the place of sale is not in itself decisive in determining whether the stored goods are intended for sale in the territory of that Member State. It is for the national court to examine, in the light of the evidence before it, whether all or some of the goods identical to those sold in the shop in question should be marketed in that shop. However, the distance between the place of storage and the place where the goods are sold, as well as the distance between the place of storage and the place where the goods are regularly delivered, may be taken as an indication of the determination of the national court.
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