1 EUROPEAN PROTECTION OF INTELLECTUAL PROPERTY RIGHTS AT A TURNING POINT by Mr Jean-Marie Parasie, liaison officer of CONFIAD Pan- European Network - a promising stage during recent years in global and EU - strategy against counterfeiting and piracy - logical line of thought of EU Commission in a new Council Regulation - stumbling blocks in EU customs environment gaps and missing links

2 COMBATING COUNTERFEITING A GLOBAL ENDEAVOUR AND A GLOBAL NEED OF AWARENESS AT THE EVE OF THE SECOND GLOBAL CONGRESS OF GLOBAL TRADE IN COUNTERFEITED GOODS ESTIMATED AT OVER 500 BILLION EURO ANNUALLY & ESCALATING -INCREASED AWARENESS REQUIRED ON FULL ECONOMIC AND SOCIAL CONSEQUENCES AMONG ALL STAKEHOLDERS -NEED FOR SUBSTANTIAL COOPERATION,COMMUNICATION AND COMMITTMENT IMPROVEMENT AMONG GLOBAL,REGIONAL AND NATIONAL AGENCIES IN PARTNERSHIP WITH PRIVATE SECTOR -EFFECTIVE IMPLEMENTATION OF LEGISLATION WITH ENFORCEMENT PROVISIONS AND PENALTIES -IMPROVEMENT OF ENFORCEMENT RESOURCES AND TRAINING

3 RECENT GLOBAL CONCLUSIONS - COUNTERFEITING HARMS BOTH NATIONAL AND BUSINESS INTERESTS THROUGH LOSS OF TAX REVENUE -ANY PRODUCT CAN BE VIRTUALLY COUNTERFEITED -UNTESTED AND SUBSTANDARD INGREDIENTS OR COMPONENTS ENDANGER HEALTH AND SAFETY (CFR PHARMACEUTICALS AND AUTO PARTS) -CRIMINAL ORGANIZATIONS INVOLVED IN MANUFACTURING DISTRIBUTION AND RETAILING -FINANCING TERRORIST ORGANIZATIONS & ACTIVITIES -COUNTERFEITED PRODUCTS IDENTIFIED AS HIGH RISK GOODS IN SUPPLY CHAIN SECURITY INITIATIVE OF WCO -LIMITED CAPABILITIES OF DEVELOPING COUNTRIES WITH REGARD TO KNOWLEDGE AND MANAGEMENT -EFFECTIVE COOPERATION BETWEEN AUTHORITIES AND PRIVATE SECTOR AS THE SOLE GATEWAY FOR COMBATINGCOUNTERFEITING

4 A PROMISING STAGE IN EU AWARENESS SINCE 2002 The context -EU OPENNESS TO EXPORTS FROM DEVELOPING COUNTRIES -97% OF THE EXPORTS FROM THE WORLD' LEAST DEVELOPED COUNTRIES IS ENTERING THE EU FREE OF DUTIES -THE EU IS THE WORLD'S LEADER IN PREFERENTIAL AGREEMENTS -INCREASING EU ENTRY OF GOODS THROUGH MEGACARRIERS AND MEGAPORTS (CFR COUNTERFEITED GOODS MAINLY CONTAINERIZED)

5 A PROMISING STAGE IN EU AWARENESS New EU Preparedness in three stages -COOPERATION AUTHORITIES -PRIVATE SECTOR =IN 2002 THE EU COMMISSION ORGANISED EARLY REFLECTION MEETING WITH RIGHT- HOLDERS -MARCH 2003 = MEMBER STATES UNANIMOUSLY AGREEDON COUNCIL REGULATION -1 JULY 2004= COUNCIL REGULATION N° 1383/2003 CONCERNING CUSTOMS ACTION AGAINST GOODS SUSPECTED OF INFRINGING CERTAIN INTELLECTUAL PROPERTY RIGHTS AND MEASURES TO BE TAKEN AGAINST GOODS FOUND TO HAVE INFRINGED SUCH RIGHTS -IMPLEMENTING PROVISIONS TO BE WORKED OUT

6 SCOPE -GOODS INCLUDING PACKAGING BEARING WITHOUT AUTHORIZATION A TRADEMARK IDENTICAL TO VALIDLY REGISTERED TRADEMARKS -ANY TRADEMARK SYMBOL(INCLUDING LOGO,LABEL,STICKER BROCHURE, INSTRUCTIONS FOR USE OR GUARANTEE DOCUMENT BEARING SUCH A SYMBOL) -PACKAGING MATERIALS BEARING TRADEMARKS OF COUNTERFEITED GOODS -PIRATED GOODS=GOODS CONTAINING COPIES MADE WITHOUT THE CONSENT OF THE HOLDER OF A COPYRIGHT OR RELATED RIGHT OR DESIGN RIGHT -PATENT -PROTECTION CERTIFICATE -NATIONAL PLANT VARIETY -DESIGNATION OF ORIGIN -GEOGRAPHICAL DESIGNATIONS

7 LOGICAL LINE OF THOUGHT OF EU COMMISSION WHAT IS THE IMPACT OF THE NEW REFLECTIONS AND REGULATION ? -EUROPE DECIDED TO IMPROVE THE WORKING OF A SYSTEM CONCERNING THE ENTRY,EXPORT AND RE_EXPORT OF GOODS INFRINGING INTELLECTUAL PROPERTY RIGHTS -A SYSTEM TO MANAGE AND MONITOR ENTRY OF SUSPECTED GOODS ORIGINATING OR COMING FROM THIRD COUNTRIES -MONITORING THE INTRODUCTION IN THE COMMUNITY INCLUDING TRANSHIPMENT,RELEASE FOR FREE CIRCULATION PLACING UNDER SUSPENSIVE PROCEDURE AND PLACING IN FREE ZONES OR WAREHOUSE -ACTION AGAINST SUSPECTED GOODS IN THE PROCESS OF BEING EXPORTED,RE-EXPORTED OR LEAVING THE COMMUNITY

8 LOGICAL LINE OF THOUGHT HOW TO MONITOR ? -COOPERATION WITH RIGHT-HOLDERS IS THE NAME OFTHE GAME -AS WELL AS MUTUAL ASSISTANCE BETWEEN MEMBER STATES AND BETWEEN MEMBER STATES AND THE EU COMMISSION -FIRST OF ALL A MEMBER STATE SHOULD BE AUTHORIZED TO DETAIN SUSPECTED GOODS ASK INFORMATION TO RIGHT-HOLDERS AND ALLOW THEM TO LODGE AN APPLICATION -AS A MATTER OF FACT CUSTOMS AUTHORITIES IN CASE OF SUFFICIENT GROUNDS (BEFORE ANY APPLICATION) MAY SUSPEND THE RELEASE OF GOODS OR DETAIN THEM FOR A PERIOD OF THREE WORKING DAYS. -AUTHORITIES SHOULD ASK INFORMATION TO CONFIRM SUSPICIONS

9 LOGICAL LINE OF THOUGHT WHAT IS NEW ? -A RIGHT-HOLDER (OR REPRESENTATIVE?) MAY APPLY FOR ACTION (PREFERABLY ELECTRONICALLY)=APPLICATION FOR ACTION -APPLICATION FOR ACTION (FREE OF CHARGE): +ACCURATE & DETAILED TECHNICAL DESCRIPTION OF THE GOODS +SPECIFIC INFORMATION CONCERNING TYPE OR PATTERN OF FRAUD +NAME & ADDRESS OF CONTACT PERSON APPOINTED BY RIGHT-HOLDERS RIGHT-HOLDERS SHOULD INFORM ABOUT: +PRE-TAX VALUE OF ORIGINAL LEGITIMATE MARKET GOODS +LOCATION OF GOODS AND INTENDED DESTINATION +PARTICULARS IDENTIFYING THE CONSIGNMENT OR PACKAGE +SCHEDULED ARRIVAL OR DEPARTURE DATE OF GOODS +MEANS OF TRANSPORT +IDENTITY OF IMPORTER,EXPORTER OR HOLDER OF GOODS +COUNTRY OR COUNTRIES OF PRODUCTION AND TRAFFICKERS ROUTES +TECHNICAL DIFFERENCES BETWEEN AUTHENTIC AND SUSPECT GOODS

10 LOGICAL COOPERATION - CUSTOMS OFFICES GRANTING AN APPLICATION CAN SUSPEND RELEASE OF GOODS OR DETAIN THEM -WITH REGARD TO PROTECTION OF PERSONAL DATA,COMMERCIAL AND INDUSTRIAL SECRECY AND PROFESSIONAL AND ADMINISTRATIVE CONFIDENTIALITY CUSTOMS SHAL INFORM RIGHT-HOLDER ABOUT NAMES AND ADDRESSES OF THE CONSIGNEE;CONSIGNOR,DECLARANT,HOLDER OF THE GOODS AND ORIGIN OF SUSPECTED GOODS -NOTIFICATION BY CUSTOMS -APPLICANTS MAY BE INVITED TO INSPECT GOODS -CUSTOMS CAN HAND OVER SAMPLES -IN 1O WORKING DAYS (OR 3 FOR PERISHABLE GOODS) THE RIGHT-HOLDER INFORM CUSTOMS WITH WRITTEN AGREEMENT OR DECLARANT,HOLDER OR OWNER OF GOODS TO ABANDON THE GOODS FOR DESTRUCTION

11 STUMBLING BLOCKS IN EU CUSTOMS ENVIRONMENT -DIFFERENCES IN NATIONAL APPLICATION -NO HARMONIZED EUROPEAN RISK ANALYSIS MANAGEMENT -NO FINALIZED COMMUNITY-WIDE SECURED SUPPLY CHAIN -AUTHORISED ECONOMIC OPERATOR ONLY AN INITIAL EU CONCEPT WITH UNKNOWN NATIONAL IMPLEMENTATIONS -ABOLITION OF INLAND BORDERS IN EU OF 25 COUNTRIES -SHORTCOMINGS IN THE PROTECTION OF NEW EXTERNAL INLAND BORDERS WITH HIGH RISK COUNTRIES

12 GAPS AND MISSING LINKS -ABSENCE OF DATABASE AND WEBSITE -MUTUAL ASSISTANCE NOT REGULATED -PENALTIES NOT HARMONISED COMMUNITY-WIDE -APPROPRIATE AND UP DATED EXCHANGE OF INFORMATION BETWEEN PORTS AND AIRPORTS MISSING -UNCLEARED ROLE OF REPRESENTATIVES -NEED OF MEMORANDA OF UNDERSTANDING WITH ALL THE PLAYERS IN SUPPLY CHAIN -EXAMINATION OF THE LINK BETWEEN COUNTRIES OF ORIGIN OF SUSPECTED GOODS AND COUNTRIES HAVING THE BENEFIT OF PREFERENTIAL ARRANGEMENTS

13 Thank you for your kind attention!