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Goods infringing intellectual property rights

Goods infringing intellectual property rights

Outline of the Community (European Union) legislation about Goods infringing intellectual property rights

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Intellectual property

Goods infringing intellectual property rights

Document or Iniciative

Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights.

Summary

This Regulation enables customs authorities, in cooperation with right-holders, to improve controls at external border.

It simplifies the procedure for the lodging of applications for action with the customs authorities, in particular for small and medium-sized enterprises (SMEs), and for the destruction of fraudulent goods.

The Regulation sets up a more efficient system by laying down, on the one hand, the conditions for customs action where goods are suspected of infringing intellectual property rights, and on the other hand the measures to be taken against goods that have been found to infringe intellectual property rights.

In order to protect consumers by ensuring the protection of food products, the Regulation extends the scope of application of Community action to cover new types of intellectual property rights: new plant varieties, geographical indications and designations of origin.

Scope

The Regulation applies to:

  • counterfeit goods *;
  • pirated goods *;
  • patents;
  • supplementary protection certificates;
  • designs and models;
  • copyright and related rights;
  • trademarks;
  • designations of origin;
  • new plant varieties;
  • geographical indications;
  • any mould or matrix designed or adapted for the manufacture of goods infringing an intellectual property right.

Application for customs action

Where goods are suspected of infringing intellectual property rights, the right-holder may lodge a written application with the relevant customs authorities. Such an application for action must include an accurate and detailed technical description of the goods in question, any information concerning the nature of the fraud and the name and address of the contact person appointed by the right-holder. The right-holder may also request the intervention of the customs authorities of one or more Member States if he is the holder of a Community trademark, design or model, a Community protection, a new plant variety, a designation of origin, or a geographical indication or designation protected by the Community.

The law applicable when deciding whether an intellectual property right has been infringed is the law in force in the Member State where the goods were found. In accordance with national provisions, and with the right-holder’s agreement, the Member States may now set up a simplified procedure to enable the customs authorities to have the goods destroyed. If the infringement of an intellectual property right is not established within a set deadline, the detention order is lifted and the goods are released once the necessary customs formalities have been discharged. The deadline is shorter in the case of perishable goods.

Goods found to infringe an intellectual property right may not be:

  • brought into the customs territory of the Community;
  • withdrawn from the customs territory of the Community;
  • released for free circulation;
  • exported;
  • re-exported;
  • placed under a suspensive arrangement, in a free zone or free warehouse.

If the customs authorities have sufficient reason to suspect that goods are infringing an intellectual property right, they may suspend the release of goods or retain goods for three working days, during which time the right-holder must submit an application for action. In accordance with the rules in force in the Member State concerned, the customs authorities may ask the right-holder for information to help them in their investigation.

The competent customs office sets a period during which the action must take place. Such a period may not exceed one year. The decision to take action is notified to the customs office in the Member State or States concerned. The customs office may request additional information.

The Customs Code Committee has the task of assisting the Commission in applying this Regulation.

This Regulation applies from 1 July 2004 and repeals Regulation (EC) No 3295/94 from that date.

Key terms used in the act
  • Counterfeit goods: goods or trade mark symbols or packaging presented separately, bearing without authorisation a trademark identical to another trademark validly registered, or which cannot be distinguished in its essential aspects and which thereby infringes the trademark-holder’s rights.
  • Pirated goods: goods that are or contain copies made without the consent of the holder of a copyright or related right or design right.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Regulation (EC) No 1383/2003 09.08.2003 OJ L 196, 02.08.2003

Related Acts

Commission Regulation (EC) No 1891/2004 of 21 October 2004 laying down provisions for the implementation of Council Regulation (EC) No 1383/2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights [Official Journal L 328 of 30.10.2004].

This Regulation clarifies the provisions for the implementation of Council Regulation No 1383/2003. It defines the natural and legal persons who may represent the holder of a right or any other person authorised to use the right. It is also necessary to specify the nature of the proof of ownership of intellectual property.
The Regulation lays down a model form and the language requirements for applications for action to ensure harmonisation and standardisation in this area. It also specifies the type of information to be included in applications for action in order to facilitate the work of the customs administrations by recognising the goods that may infringe an intellectual property right. It also lays down the type of right-holder liability declaration that must accompany the application for action.
In the interests of legal certainty, the Regulation specifies when the time periods for the determination of an infringement of an intellectual property right commence.
The Regulation also lays down the procedures for the exchange of information between Member States and the Commission, so that it is possible for the Commission to monitor the effective application of the procedure and recognise patterns of fraud, and for the Member States to introduce appropriate risk analysis.

Customs response to latest trends in counterfeiting and piracy

Customs response to latest trends in counterfeiting and piracy

Outline of the Community (European Union) legislation about Customs response to latest trends in counterfeiting and piracy

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Intellectual property

Customs response to latest trends in counterfeiting and piracy

Document or Iniciative

Communication of 11 October 2005 from the Commission to the Council, the European Parliament and the European Economic and Social Committee on a customs response to latest trends in counterfeiting and piracy [COM(2005) 479 final – not published in the Official Journal].

Summary

This Communication sets out a range of initiatives aimed at cracking down on counterfeiting and piracy. The measures in question will be implemented by customs.

Problems and threats

The industrial production of counterfeit goods poses a threat to:

  • the health, safety and jobs of EU citizens (e.g. fake medicines or foodstuffs);
  • the competitiveness and trade of the European Community (EC);
  • investment in research and innovation in the EC.

There was a 1000 % increase in counterfeiting and piracy between 1998 and 2004. In 2004 alone, 103 million fake or pirated articles were seized by customs officials in the EC; 4.4 million of these were fake foodstuffs and alcoholic drinks. Much of this traffic is sold on the black market, which means losses of tax revenue for Member States.

Most of the products seized are household items, with growing numbers of sophisticated hi-tech products being faked. The quality of these counterfeits is now so good that it is becoming difficult to distinguish the real article from the fake. What is more, high profits and relatively low risks make counterfeiting and piracy lucrative for those involved in organised crime.

Recommendations and Action Plan

The Commission proposes a range of recommendations aimed at tightening customs controls to help combat counterfeiting and piracy in the Community.

In its action plan, the Commission considers measures to be necessary in the following areas:

  • increasing protection at the level of Community legislation and operational performance;
  • strengthening the partnership between customs and businesses;
  • improving international cooperation.

Legislation

Customs controls on inbound traffic need to be improved and the suitability of the existing legal and operational measures has to be examined. Two concerns in particular must be addressed. The first involves the simplified destruction procedures that will reduce costs to businesses and public administrations alike. The second relates to the fact that travellers are currently permitted to import small quantities of personal-use items that may be counterfeit.

Operational performance

New techniques and instruments are needed to ensure that operational capacity is consistently high. Actions have to be developed and brought together in a new operational control plan based on risk management. The EU’s Customs Information System (CIS) enables the national customs services of Member States to exchange and search for customs information.

Partnership

Effective customs enforcement can be guaranteed only if businesses are also fully involved. Improving the early exchange of information between businesses and customs is also important. A possible solution could take the form of an EU electronic information system for intellectual property rights.

International cooperation

The main region producing counterfeit goods is Asia, and China in particular. International cooperation is crucial in halting the production and export of counterfeit goods. The Commission intends to:

  • introduce export and transhipment controls;
  • exploit and extend Customs Cooperation Agreements to cover regions where there is a significant level of counterfeit production;
  • enhance the World Trade Organization (WTO) agreement on trade-related aspects of intellectual property rights (TRIPS);
  • strengthen cooperation with the World Customs Organization (WCO), Europol and Interpol;
  • enter into bilateral arrangements, especially with China.

Related Acts

Council Resolution of 13 March 2006 on a customs response to latest trends in counterfeiting and piracy [Official Journal C 67 of 18.3.2006]

Commission Regulation (EC) No 1891/2004 of 21 October 2004 laying down provisions for the implementation of Council Regulation (EC) No 1383/2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights [Official Journal L 328 of 30.10.2004].

Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights [Official Journal L 157 of 30.4.2004].

Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights [Official Journal L 196 of 2.8.2003].

This Regulation sets out measures and conditions for the customs authorities to take action against goods found to have infringed IPR.

Council Regulation (EC) No 515/97 of 13 March 1997 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters [Official Journal L 82 of 22.3.1997].

This Regulation establishes a centralised customs information system.