Fighting the bad guys with customs surveillance

In Insights, Uncategorized

3 April, 2014

Most classic feel-good Hollywood movies reach a point when things look most bleak, and you almost doubt whether the hero will defy all odds and beat the villain.

The eternal fight against counterfeiting is starting to reach a similar point. As IP specialists and larger companies are aware, one of the most effective remedies in this battle is the cooperation with and help from EU national customs authorities, which offer the free service of monitoring the borders and detaining suspicious consignments being imported from countries outside of EU.

In 2012 EU Customs detained more than 40 million items of fake goods worth approximately EUR 1 billion. However, it is estimated that this only equals around 1% of the total number of counterfeit goods being imported into the EU. Surely, things do not look good for our hero.

When facing the impossible in the world of movies, the average hero typically regroups, changes strategy and returns even stronger.

A similar strategy is being employed by the legislators fighting on behalf of all right holders in this aspect. Accordingly, a new Customs Regulation has come into force on 1st of January 2014 with the aim of streamlining the process and extending customs’ authorities to also include possible infringement of trade names and utility models. The new regulation also introduces a new procedure for small consignments containing 3 or less units, whereby these can be handled by customs themselves and destroyed without contacting the rights holder. Especially the latter part will help right holders in their endeavor as it will limit the costs for the smaller insignificant matters and thereby help both parties focus on the larger consignments.

Furthermore, a major key to successful customs surveillance is for the right holders to provide customs with as much information as possible regarding their authentic products, including the place of production, shipping routes, packaging, distributors, countries of distribution and details of the products. Therefore, the new regulation also introduces a centralized database where all information is shared between the right holders and customs authorities.

Whether this new regulation will make for a happy ending remains to be seen. However, as long as there are customers, the producers of counterfeit products will continue to emerge. Therefore, it is evidently that the many arguments against the strict customs rules due to the protection of the unaware consumers are slowly silenced as the most effective way to fight “the bad guys” seems to be to deter customers from buying such products. This is probably also the reason why the European Court of Justice has recently allowed for the destruction of consignments being purchased for private use.

At Awapatent we stride to help right holders make their customs surveillance more effective and realize that cooperation and sharing of information with customs authorities are key elements in this fight. Counterfeiters also change strategy and are constantly developing their illegal methods and pirated products. Accordingly, the fight continues.

To stay in the movie analogy, the obvious movie comparison is “The Never Ending Story”.

Anders Michael Poulsen, Attorney at Law

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