A previous Regulation (reported in our Information Letter N.S. 169) which provided for measures against trademark counterfeiting, went into force on January 1, 1988, but the new Regulation is designed to strengthen and expand on earlier safeguards; for example, by extending them to cover counterfeit copyright materials and designs, and to conform with the requirements of the TRIPS Agreement of GATT (see our Information Letter N.S. 182).
The main features of the Regulation include the following:
1) A trademark, copyright, or design owner may apply to the Customs authorities in any of the 15 Member States of the European Union for action to prevent the importation of counterfeit or pirated goods. The owner of such a right may be required to furnish a refundable financial security to the Customs authorities to cover any costs that may be incurred in retaining any seized goods and to indemnify the authorities if the seized goods should turn out not to be counterfeit or pirated.
2) Any application must be for a specified period of time and, wherever possible, must identify:
4) Any goods found to be counterfeit or pirated will, generally, be destroyed, but the Customs authorities have the power to take "any other measures which effectively deprive the persons concerned of the economic benefits of the transaction." Specifically excluded from the above would be: re-export of the goods, removal of the trademarks, or placement of the goods under another customs procedure.
5) Counterfeit goods are defined as goods, their packaging, labels, stickers, brochures, instructions for use, or guarantee documents bearing an unauthorized registered trademark.
6) Pirated goods are defined as "goods which are or embody copies made without the consent of the holder of the copyright or neighboring rights, or of the holder of a design right, whether registered under national law or not, or of a person duly authorized by the holder in the country of production, where the making of those copies infringes the right in question under Community law or the law of the member State in which the application for action by the Customs authorities is made."
2) Any application must be for a specified period of time and, wherever possible, must identify:
a) the place where the goods are situated or the intended destination;
b) particulars of the consignment or packages;
c) the means of transport used; and
d) the identity of the importer, exporter, or holder.
3) The Customs authorities will notify the trademark owner when any suspect goods are seized, but the owner has only three working days to act before the goods are released.b) particulars of the consignment or packages;
c) the means of transport used; and
d) the identity of the importer, exporter, or holder.
4) Any goods found to be counterfeit or pirated will, generally, be destroyed, but the Customs authorities have the power to take "any other measures which effectively deprive the persons concerned of the economic benefits of the transaction." Specifically excluded from the above would be: re-export of the goods, removal of the trademarks, or placement of the goods under another customs procedure.
5) Counterfeit goods are defined as goods, their packaging, labels, stickers, brochures, instructions for use, or guarantee documents bearing an unauthorized registered trademark.
6) Pirated goods are defined as "goods which are or embody copies made without the consent of the holder of the copyright or neighboring rights, or of the holder of a design right, whether registered under national law or not, or of a person duly authorized by the holder in the country of production, where the making of those copies infringes the right in question under Community law or the law of the member State in which the application for action by the Customs authorities is made."
April 1995 Index