From: "Tim" 
Newsgroups: uk.finance uk.legal
Subject: Re: delivery in USA only?
Date: Fri, 26 Oct 2007 11:43:09 +0100
Bytes: 5822

>> "Norman Wells" wrote
>>> Exporting and importing the goods are specifically stated to
>>> be use of the trade mark by virtue of Section 10.4 (c).  ...
>>
> "Tim" wrote
>> Agreed.  But in this case, that use is *not*  "in the
>> course of trade", so the trademark is not infringed.
>>
>> "Norman Wells" wrote
>>> ...  It can hardly be denied, at least to my way of thinking,
>>> that importing goods as a result of a commercial
>>> transaction so that the purchaser actually receives them is
>>> such use 'in the course of trade', and therefore infringement.
>>
> "Tim" wrote
>> Ah, but the new owner is *not* trading,
>> and never has been trading, in the item.
>> It was the (Brazilian) seller that was trading, but they no
>> longer own the item, and are therefore not importing it.
>>
>> Which of them did you think was trading
>> in the item when the importing takes place?
>
"Norman Wells" wrote
> I think there's a good argument, since both
> are working in concert, that both are.

A buyer and seller are *always*  "working in concert" !!
However, often one or both of them is *not* trading.

[Take the case of someone selling their home, and
someone else buying it to live in -- neither are trading.]

Hence, your argument must be invalid.  Try again!

"Norman Wells" wrote
> Why do you think CD Wow, based in Hong Kong and doing much the
> same, decided to settle out of court _and_ to source all future CDs from
> within the EU? From a fundamental belief in the strength of their case?

I don't know.  Do *you* know why they did?
Perhaps it was just to save the inevitable hassle...

>>> "Tim" wrote
>>>> Indeed, sub-section 89(2) states: "... the importation
>>>> of the goods ..., otherwise than by a person for
>>>> his private and domestic use, is  prohibited; ..."
>>>> So, it appears that private & domestic use *is* allowed explicitly.
>>>
>> "Norman Wells" wrote
>>> If it were, it would be stated in Section 10, the
>>> major section defining infringement, but it's not.  ...
>>
> "Tim" wrote
>> It doesn't need to be explicit, because it says that
>> infringements only occur when "in the course of trade".
>> "Private and domestic use" is *not* "in the course of trade".
>
"Norman Wells" wrote
> Trade is merely buying, selling and supplying.  Whether it's for private
> and domestic use, or larger scale commercial exploitation is irrelevant.

If the buyer only uses the items for private or domestic use, then
they (the buyer) are very much *not* trading in the item in question.

Only the seller could be trading in that case (although
they might not be, depending on other circumstances).

>> "Norman Wells" wrote
>>> ...  Section 89 relates only to the specific position where
>>> Customs and Excise have been notified of a potential infringement
>>> occurring at a specific time and place and are on notice
>>> to treat the goods as prohibited goods, thus liable to seizure.
>>>  This is a heavy-handed procedure designed to prevent large
>>> scale infringement.  I imagine that the exclusion in subsection
>>> (2) is there in order to limit it to such actions, and exclude
>>> C&E's involvement in trivial personal infringements.
>>
> "Tim" wrote
>> Hmmm.  You think that it would be legal to
>> import privately if there happened to be such a
>> notice, but illegal if there happened not to be?
>> What would be the point of making it
>> legal, only in the case of a notice existing?
>
"Norman Wells" wrote
> No.  As I've already explained, ...

You mean "suggested"...

"Norman Wells" wrote
> ... both are trade mark infringements.  ...

I'm still waiting for you to convince me.

"Norman Wells" wrote
> ... The difference is that Customs and Excise can only seize
> the goods that are imported if the importation is on a larger
> commercial scale than just for personal and private use...

And what would be the point of that, if your view was true?