The European Council recently published Regulation CE 241/1999, which amends that concerning border controls for counterfeit goods (CE 3295/94).
The Council Regulation on counterfeiting and piracy is a customs’ instrument, which only addresses commercial relations between the European Union and third countries, but offers no means of fighting against intracommunity trade. In this area, only the national laws of the Member States provide protection against counterfeiting and piracy.
Let us remember that the Regulation, which became effective on July 1st 1995, allows customs authorities, upon the request of the right holder of trademark, design right or copyright, to suspend customs operations, in particular to retain the goods, when these are suspected of being counterfeiting or pirating goods covered by an intellectual property right.
On the basis of the analysis of the system initiated more than three years ago, and of the opinions expressed by the interested parties, the European Commission has proposed certain amendments, which will take effect on July 1st 1999. The new regulation introduces three principal changes:
1) the scope of the Regulation will be extended to patents and to supplementary protection certificates (SPCs) for medicinal and plant protection products; currently, only trademarks, design models and copyrights are covered by the Regulation;
2) the customs authorities will be enabled to act against any good discovered in a free zone or warehouse;
3) the administrative side will be simplified for holders of Community trademarks; thus, the customs protection application may tend to obtain not only the intervention of the customs authorities of the Member State in which it was lodged, but also that of the customs of one or several other Member States.
These innovations deserve praise, inasmuch as they better the efficiency of a Council Regulation, of which the usefulness is recognized by industrial circles and competent authorities. The unfinished quality of this reform can however be regretted, at a time when the Commission is initiating an extensive debate on intellectual property rights infringements, through its Green Paper on counterfeiting and piracy in the internal market. Several suggestions by the relevant industries were not deemed useful by Brussels, though they covered both the causes of the phenomenon and the practical means of fighting it. Let us in particular mention the companies’ proposal to eliminate the ruling which excludes, up to a certain value, the seizure of goods contained in travellers personal luggage.
The amendment is globally positive, because these innovations bring both an extension of the scope, and an increased efficiency of the Council Regulation, which is directly applicable in any Member State.
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