Supreme Court approves destruction of fakes

In Adidas-Salomon Ag v Scanrapid Oy and Raycom Shipping Ab (Case 2002:119), the Supreme Court has allowed an action against two shipping agents to have counterfeit goods destroyed, even though the agents were not found guilty of trademark infringement.

In July 1998 Finnish Customs detected counterfeit garments affixed with a well-known trademark. The counterfeit goods had been shipped from South Korea and were in transit through Finland, destined for Russia. The manufacturer, shipper and purchaser of the cargo were unknown. Therefore, Adidas brought an action against the two forwarding agents to have the counterfeit goods destroyed.

Both the district court and the court of appeal found that as the agents had not used the mark as a symbol in commerce, they had not infringed Adidas's trademark rights under Finnish law. Both courts therefore dismissed Adidas's action.

The Supreme Court also found that the agents had not infringed Adidas's trademark rights, but allowed the action and issued the order to have the counterfeits destroyed pursuant to the Community Regulation on Counterfeiting. This provides that effective measures shall be taken to prevent counterfeit goods from entering the EU market. The court reasoned that since the infringer remained unknown, denying action against the agents would clearly contravene the EU regulation.

Rainer Hilli and Jenni Kyntölä, Roschier Holmberg Attorneys Ltd, Helsinki