Request for a preliminary ruling about exclusive distribution right with regard to goods stored in a warehouse

Case C-572/17. Syed. Request for a preliminary ruling. Högsta Domstolen (Sweden)

Copyright Law. “Defendant owned a shop in Stockholm, where he sold clothing and accessorises with rock music designs. The sale of different (acquired by piracy) goods resulted in trademark and copyright infringement of several plaintiffs rights. The goods were discovered both in the shop as in a warehouse affiliated  with the shop and in another warehouse in Stockholm. [...] The Court at first instance has found the defendant guilty of trade mark infringement , however, there was no case of attempted infringement or preparatory actions based on copyright law. At further appeal filed by the Public Prosecutor the judge at second instance ruled that the defendant was guilty of violating the Copyright Act with regard to only the garment located in the shop itself. According to the  General Prosecutor also corresponding goods located in a warehouse should be considered  infringing the exclusive distribution rights.

It follows from the Court’s ruling (C-516/13) that an infringement of an exclusive right of an author based on article 4(1) of Directive 2001/29 is conceivable  in cases where another person takes preparatory action in the conclusion of a sales agreement, for example offering protected goods for sale. In this case it is also the question if protected goods that are stored, can be considered to be offered for sale when the same person offers similar goods for sale in a store.

Preliminary questions (unofficial translation from Dutch):

1) Is it possible, when goods with a protected pattern unlawfully are offered in a shop for sale, there is also infringement of the exclusive distribution right of the author based on article 4 (1) of Directive 2001/29 with regard to goods with identical designs that are stored by the same person that offers the goods for sale?

2) Is it relevant whether the goods are stored in a warehouse that is affiliated with the shop or are stored at another location?”