Greater Protection Against Fake Goods In EU As Of 1 January 2014

by DLA Piper

Right holders are faced with an ever increasing battle against fake goods. The European Union Anti-Piracy Regulation offers an effective first-line defense against fake goods. In 2012, EU Customs detained 40 million fake goods worth approximately EUR 1 billion.

As of 1 January 2014 the new Anti-Piracy Regulation (608/2013) will apply repealing the current regulation. The new regulation offers even greater protection against fake goods in all 28 EU member states. The new regulation gives EU Customs extended powers to detain infringing products at EU borders. Furthermore, the EU-wide customs information exchange system called Copis will be operational as of 1 January 2014.

Prevention better than cure

Right holders can request EU Customs to pro-actively stop fake goods at the EU borders via a elect form called 'Community Application for Action'. Electronic filing will become available. EU Customs can detain goods on the basis of reasonable indications of infringement on a broad scope of registered and non-registered IP-rights including trademarks, patents, designs, and copyrights.

A Community Application for Action is an effective and cost-effective way for right holders to prevent goods from getting into circulation on the EU market. It is of importance to not only fill out the Community Application for Action but also maintain an open dialogue with Customs to increase the number of Customs notifications. Under the new regulation all current applications remain valid. However, Belgium, Sweden and Malta have requested all applicants to re-file their customs application.

What's new?

  1. The new Anti-Piracy Regulation offers an extension of IP-rights. Customs cannot only act against counterfeit or pirated goods but also against confusingly similar trademarks and trade names which were not covered before. The scope of the regulation is furthermore extended to chips, utility models and devices enabling or facilitation the circumvention of technical measures. 
  2. A new action for small consignments (parcels up to 2 kg) of counterfeit or pirated goods will be introduced. Upon an application by the right owner, Customs can destroy small consignments without having to consult the right owner. Customs will proceed with destruction if no timely objections are being made by the declarant or holder of the goods. This action is mainly targeting orders from webshops outside of the EU.
  3. Destruction of goods will be simplified. A procedure to destroy the suspected goods without having to start court proceedings will be available in all Member States. The principle of implied consent will be observed. If no timely objections are being made by the declarant or holder of the goods, the goods can be destructed by Customs in agreement with the right owner.

Goods in transit and parallel trade

Although the new regulation solely contains procedural rules for Customs, the wording of the new regulation suggests that that possibilities for right owners to act against goods in transit will be extended. This is in line with the proposed changes to the substantive EU trade mark law which will come into effect (long) after 1 January 2014. Customs can also share more information with the right owners that can be used in court.

Grey market goods do not fall within the scope of the new regulation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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