Article by Caroline Casalonga and Karina Dimidjian
The latest figures published by the European Commission show
that counterfeiting is a growing phenomenon in the EU market. In
2007 EU Customs seized more than 79 million counterfeit and pirated
goods and handled more anti-counterfeiting cases than ever before.
A total of more than 43,000 cases were dealt with in 2007, up
nearly 17% from 2006. Compared to 2006, counterfeiting increased in
almost all product sectors. In addition to medicines, where
counterfeiting increased by 51% compared to 2006, the 264% increase
in intercepted counterfeit articles for personal care is a worrying
The statistics for 2006 showed an increase of 70% over 2005 (to
128 million counterfeit and pirated articles seized) across most
industry sectors. This was particularly worrying for pharmaceutical
products (an increase of 384% over 2005) and perfumes and cosmetics
(an increase of 141% over 2005), as these products can pose a
serious threat to the health of the general population. Clothing
and accessories have also shown a significant increase.
In terms of overall quantities seized, China remains the
principal source of counterfeit products, with 79% of all articles
seized originating in China. In the pharmaceutical sector, India
and the United Arab Emirates were the principal sources of
counterfeit products (31% each), followed by China. Together, these
three countries are the source of 80% of all counterfeit medicines
This article explains the simple steps that all owners of IP
rights in the European Union should take in order to defend their
rights effectively against counterfeiting and piracy, in particular
the filing of an application for action by customs authorities in
the 27 EU member states.
The legal framework for anti-counterfeiting consists of both IP
and customs statutes.
The European Union has harmonized most national IP laws and
created some unitary rights at EU level. Trademarks, designs,
patents for biotechnological inventions and certain aspects of
copyright and related rights have been harmonized. It has also
created the Community trademark (CTM), the Community design, the
Community-protected plant variety right and Community-protected
designations of origin and geographical indications. Discussions
are also underway with regard to creating a Community patent.
The EU IP Rights Enforcement Directive (2004/48/EC) harmonized
the means of enforcing IP rights in all EU member states. The
objective of the directive is to ensure a high equivalent level of
protection for IP rights in all EU member states. Counterfeiting
and piracy should be punished effectively. The directive
approximates national laws with regard to:
the calculation of damages; and
the reimbursement of legal fees.
The EU Customs Regulation (1383/2003) addresses customs action
against goods suspected of infringing certain IP rights and the
measures to be taken against goods found to have infringed such
rights. This regulation introduced common rules to prohibit the
free circulation, import, export, re-export or entry of counterfeit
and pirated goods in the European Union.
The Customs Regulation is implemented by Regulation 1891/2004,
application forms for EU-wide and national customs action;
instructions on how to use the forms.
Both the national and EU-wide customs applications and the
procedure for the detention of counterfeit goods by customs have
been harmonized in all the EU member states. There is no unified EU
customs entity, however. Rather, the national customs
administrations of the 27 member states:
are subject to common regulations; and
exchange information through a centralized information
However, EU customs practices still have certain particularities
in each member state. In addition, even if the means of enforcing
IP rights have been harmonized, civil and criminal procedures are
different in each member state.
EU application for action by Customs
The EU national customs administrations have broad investigative
and policing anti-counterfeiting powers, including the right to
suspend release and to detain goods suspected of infringing IP
rights. They act not only at the EU borders, but also across the
entire territory of each member state. Any person transporting
products into or through the European Union must have documents
evidencing the genuine origin of such products (eg, on agreement or
Before Customs can take any...