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Counterfeit goods

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1) OBJECTIVE

This Regulation aims to halt the relentless growth in international trade in counterfeit goods by improving upon and replacing the system established by Regulation (EEC) No 3842/86 laying down measures to prohibit the release for free circulation of counterfeit goods.

2) ACT

Council Regulation (EEC) No 3295/94 of 22 December 1994 laying down measures to prohibit the release for free circulation, export, re-export or entry for a suspensive procedure of counterfeit and pirated goods [Official Journal L 341 of 30.12.1994].

Amended by:

Council Regulation (EC) No 241/1999 of 25 January 1999 [Official Journal L 27 of 02.02.1999].

3) SUMMARY

Field of application

The Regulation lays down:

  • the conditions under which the customs authorities take action where goods suspected of being counterfeit or pirated are entered for free circulation, export or re-export and are found when checks are made on goods placed under a suspensive procedure or are re-exported subject to notification;
  • the measures to be taken where it has been established that the goods are indeed counterfeit or pirated.

The Regulation applies to:

  • counterfeit goods. i.e. goods bearing without authorization a trade mark which is identical to a validly registered trade mark, or which cannot be distinguished in its essential aspects from such trade mark, and which thereby infringes the rights of the holder of the trade mark in question; trade mark symbols (logo, label, etc.) whether presented separately or not, in the same circumstances as the goods referred to above; and to packaging materials bearing the trade marks of counterfeit goods, presented separately, in the same circumstances as the goods referred to above;
  • pirated goods, i.e. goods which are or embody copies made without the consent of the holder of the copyright or of a design right.

It does not apply to:

  • goods which bear a trade mark with the consent of the holder or which are protected by a copyright or related right or a design right and which have been manufactured with the consent of the holder of the right but are entered for free circulation without the latter's consent;
  • goods contained in travellers' personal luggage within the limits laid down in respect of relief from customs duty.

Regulation (EC) No 241/1999 extends the scope of Regulation (EC) No 3295/94 to goods in free zones and in free or temporary warehouses, and to goods which undermine the rights conferred by a patent.

The Regulation prohibits the release for free circulation, export, re-export or placing under a suspensive procedure of goods found to be counterfeit or pirated.

New aspects of the system to combat counterfeiting

The Regulation contains three major innovations compared to the system introduced by Regulation (EEC) No 3842/86:

  • acceleration of procedures by allowing the customs authorities themselves to take decisions immediately to prevent trade in such goods (suspension of the consignment, expert's report, etc.) without having to wait for decisions by the judicial authorities or interim measures;
  • extension of its field of application to symbols or trade marks (logos) presented separately, packaging materials bearing the marks of the products they refer to and to tools, moulds or other materials intended for the manufacture of counterfeit goods;
  • extension of the prohibition to a wider range of customs operations, including transit and export operations.

Procedure for action by the customs authorities

The Regulation allows the holder of the right to apply direct to the competent customs authority to suspend release of the goods (the authorization to put into free circulation or export) or to detain goods placed under a suspensive procedure where the goods are suspected of being counterfeit. The holder of the trade mark must provide all pertinent information and a detailed description of the goods.

The customs authority takes a decision on the admissibility of the application and, if it is ruled admissible, the customs offices concerned suspend release of the goods or detain them.

The applicant then has ten days to refer his complaint to the appropriate authority for a substantive decision. If the complaint is not referred to the appropriate authority for a substantive decision within the time limit or no interim measures have been adopted, the goods are released by the customs office concerned.

The penalties applying to goods found to be illegal may include their destruction.

Other provisions

The Customs Code Committee created by Council Regulation (EEC) No 2913/92 establishing the Community Customs Code is to assist the Commission in implementing this Regulation.

As from the date of implementation of this Regulation, i.e. 1 July 1995, Council Regulation (EEC) No 3842/86 is repealed.

ActDate
of entry into force
Final date for implementation in the Member States
Regulation (EC) No 3295/9402.01.199501.07.1995
Regulation (EC) No 241/199903.02.199901.07.1999

4) IMPLEMENTING MEASURES

Commission Regulation (EC) No 1367/95 of 16 June 1995 laying down provisions for the implementation of Council Regulation (EC) No 3295/94 laying down measures to prohibit the release for free circulation, export, re-export or entry for a suspensive procedure of counterfeit and pirated goods [Official Journal L 133 of 17.06.1995].

Regulation (EC) No 3295/94 introduced common rules with a view to prohibiting the release for free circulation, export, re-export or entry for a suspensive procedure of counterfeit and pirated goods and dealing effectively with the illegal marketing of such goods without impeding the freedom of legitimate trade. This Commission Regulation establishes the nature of the proof of ownership of intellectual property required by the Regulation, lays down the procedure for exchanging information between Member States, and repeals Commission Regulation (EEC) No 3077/87.

Commission Regulation (EC) No 2549/1999 of 2 December 1999 amending Regulation (EC) No 1367/95 laying down provisions for the implementation of Council Regulation (EC) No 3295/94 laying down measures to prohibit the release for free circulation, export, re-export or entry for a suspensive procedure of counterfeit and pirated goods [Official Journal L 308 of 03.12.1999].

This Regulation establishes the model form for applications for action related to a Community trade mark as defined in Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, as amended by Regulation (EC) No 3288/94. It also determines the conditions of establishment, issue and use required in order for the form to be easily recognised and used throughout the Community.

Commission notice pursuant to Article 5(5) of Commission Regulation (EC) No 1367/95 of 16 June 1995 laying down provisions for the implementation of Council Regulation (EC) No 3295/94 laying down measures concerning the entry into the Community and the export and re-export from the Community of goods infringing certain intellectual property rights (2000/C 231/06) [Official Journal C 231 of 11.08.2000].

This notice contains the names and addresses of the services in the Member States competent to receive applications under Article 3(8) of Council Regulation (EC) No 3295/94.

5) FOLLOW-UP WORK

Proposal for a Council Regulation concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights [COM(2003) 20 final - Not published in the Official Journal].

The Commission's proposal sets out to simplify the administrative measures necessary for holders whose intellectual property rights have been infringed. It also grants customs administrations a legal arsenal enabling them, in collaboration with holders, to better prevent and control infringements of this kind. The new regulation will replace existing Regulation (EC) No 3295/94.

Procedure ACC/2003/0003

On 21 July 2003 the Council adopted the regulation. It will enter into force on 1 July 2004.

 
Last updated: 24.07.2003

See also

For further information, see:

Site of the Internal Market Directorate-General on the enforcement of intellectual property rights

Site of the Taxation and Customs Union Directorate-General on the fight against counterfeiting

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