Legislation Publicado em: 16/04/2012
Simplify, clarify and enforce
As part of a new IPR overall strategy for the Single Market, the Commission on 24 May 2011 proposed a new regulation to reinforce customs actions in fighting trade of IPR infringing goods. For further information see the press release (IP/11/630 ), the frequently asked questions (MEMO/11/327 ), the proposal (COM/2011/285 ), the impact assessment (SEC/2011/597 ), its annex , and its summary (SEC/2011/598 ). See also the public consultation.
The current Council Regulation has been in force since 1 July 2004 (see text of Council Regulation (EC) No 1383/2003). It aims to give greater legal clarity, to extend the field of application of the law to take in further intellectual property rights, to simplify access by owners of intellectual property rights to the legal remedies and to develop an effective legal instrument in order to tackle this kind of fraud more effectively.
The current Regulation, like its predecessor Regulation No 3295/94, sets out the conditions under which the customs authorities may intervene in cases where goods are suspected of infringing intellectual property rights. It also sets out the steps to be taken by the authorities when goods are found to be illegal.
- extends the scope of the former Regulation to cover more intellectual property rights such as plant variety rights, geographical indications, designations of origin:
- improves the quality of the information provided by the owner of the rights to the customs services when a request is made for action. In addition the period of validity and the form of requests have been standardised and the use of computer links to make requests is encouraged:
- abolishes fees and guarantees so as to help small and medium sized companies (SMEs) to use the system without incurring costs. The idea of guarantees is replaced by having the owner of the rights enter into an agreement to pay instead:
- extends the scope of the " ex officio" procedure; which allows the customs authorities to react without a prior application for action. The use of this possibility has been considerably extended; which should be of particular benefit to SMEs:
- increases the quality and amount of information given by customs to intellectual property right holders.
- allows samples to be given to the owners of the intellectual property rights; but only for analysis in order to be able to pursue the procedure:
- ends the need for the owner of the intellectual property right to take an action on the merits of the case before being able to have the goods destroyed with the agreement of the holder of the goods or the person who declared the goods to customs; this should reduce the costs involved in some cases:
- allows for checks of travellers to make sure that the use of couriers or 'mules' does not conceal a large flow of goods; in current legislation this kind of import, providing it falls within the limits set out for granting customs duty free allowances, falls outside the scope of the law. This is an important change for the owners of the rights concerned.
Guidelines on goods in transit
The European Commission has developed guidelines to provide clarifications on the application of Council Regulation No1383/2003 and its implementing Regulation No1891/2004 with regard to goods in transit through the territory of the EU.
The guidelines address the specific concerns raised by India and Brazil on medicines in genuine transit through the EU which are covered by a patent right in the EU. They also take account of the findings of the Court of Justice of the EU in its judgment of 1 December 2011 related to joined cases C-446/09 and C-495/09 (Philips/Nokia).
The guidelines are available in 22 languages.