What liability do freight forwarders have for trademark infringement in forwarded goods? : Focussed specifically on Swedish national rules in multimodal transport

Sammanfattning: In September 2008, a consignment of pirated batteries, which were marked with Panasonic’s trademark, were retained by Swedish Customs. Panasonic sent a warning letter to the freight forwarding company, Tavatur, demanding it to destroy the batteries through the simplified procedure in (EC) No 1383/2003. However, since Sweden has not implemented the simplified procedure, Tavatur was unable to destroy the batteries without a court order from Sweden. Panasonic therefore sued Tavatur, the legal dispute being what liability freight forwarders have for pirated goods. Due to technical developments within different modes of transport, freight forwarders’ role has changed over the last few decades, from simple duties where the freight forwarder held an intermediary position, to a more independent role in which they now have to be legally classified as either a carrier or an agent. Unfortunately, legal development within multimodal transport has failed to keep pace with the speed of technical development. Bills of Lading, for example, have historically been working as receipts, but due to modern packing techniques, they have lost the normal evidence function they once had. Although there are some international regulations concerning freight forwarding services, they do not extend beyond the countries in which such conditions are used. When a dispute occurs between transport operators, which follow different regulations, the liability of the freight forwarders is unclear. Therefore, freight forwarders are in the need of harmonised legislation, especially concerning their liability for trademark infringements. Nonetheless, there are ways in which freight forwarder can avoid these disputes with right-holders, namely; by protecting themselves with legal cost insurance and via establish their liability through the use of contracts. However, Sweden and other Member States, which have not implemented the simplified procedure, should reconsider an implementation of it.