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Customs action to tackle IPR infringing goods – Frequently Asked Questions

Commission Européenne - MEMO/13/738   05/08/2013

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European Commission

MEMO

Brussels, 5 August 2013

Customs action to tackle IPR infringing goods – Frequently Asked Questions

See also IP/13/761

1. General information about Intellectual Property Rights (IPR)

Why is it important to protect IPR?

As the EU’s 2020 Strategy underlines, the protection of IPR is key to the EU economy. By giving people the incentive to be creative and innovative, IPR foster economic growth, creating and protecting millions of jobs.

What customs measures are in place at EU level to protect IPR?

Since 2003 EU rules lay down the provisions for customs actions to protect and enforce intellectual property rights and since 2004 specific provisions provide for the submission by Member States of information on the detentions made and the standardized application for action forms.

The new Regulation of June 2013 concerning customs enforcement of intellectual property rights will become applicable on 1st of January 2014 (see MEMO/13/526 and MEMO/13/527).

EU customs authorities are coordinating their activities via the EU Customs Action Plan to combat IPR infringements for the years 2013 to 2017 (see MEMO/12/967).

What role do Customs play in the protection of IPR?

Right-holders can ask for customs action to protect their rights at the border. When they have a suspicion of an infringement, customs can detain the goods or suspend their release and inform the right-holder accordingly. The right-holder is given the opportunity to initiate court proceedings to determine the infringement, while the goods remain under customs control. The current EU rules also allow Member States to provide for a simplified procedure where the goods can be destroyed without the obligation to establish the infringement by a court where the declarant or holder of the goods agrees.

Is the detention of IPR infringing goods only a matter for customs authorities?

Customs administrations are the controlling bodies at the external frontiers of the EU.

In most Member States, law enforcement authorities other than Customs are responsible for controlling IPR infringing goods within their territories, for example at open markets or production sites.

How important is industry's role in protecting IPR?

For customs to take action, right-holders must submit an application for action to the customs authorities.

The identification and grounds for suspicion of an infringement rely on the information provided by industry in the application for action (such as the type of IPR infringing goods, information on production and means of transport, physical characteristics of original goods, etc.). The European Commission, together with Member States has established a manual for right holders for lodging and processing applications for action. When right holders suspect that their rights might be infringed, they may lodge an application, requesting customs to take action.

Evidence of the close cooperation between customs and the private sector is shown in the evolution of the numbers of applications for action submitted to customs. Since 2002 the number of applications for action made in the Member States has increased from 1.671 to 23.134 in 2012.

Year

Applications

2002

1.671

2003

1.886

2004

2.888

2005

5.525

2006

7.160

2007

10.260

2008

12.866

2009

14.797

2010

18.330

2011

20.566

2012

23.134

Source: Report on EU customs enforcement of intellectual property rights at EU border, 2012

What happens to goods once they are detained by customs?

In over 90 % of the detentions, the goods were either destroyed or a court case was initiated to determine the infringement. In 8,2 % of the cases, the goods were released because they appeared to be non-infringing original goods or no action was undertaken by the right-holder after receiving the notification by the customs authorities.

Source: Report on EU customs enforcement of intellectual property rights at EU border, 2012

What is done to ensure customs cooperation on IPR with third countries?

In addition to EU controls at import, it is necessary to act at the source of the problem by stopping the export of IPR infringing goods and, where possible, by shutting down the production. This requires international cooperation.

For example, the EU is cooperating with China in the framework of a customs action plan on IPR enforcement (IP/10/1079). The plan concentrates on 4 key areas, namely the exchange of statistical information, the creation of a network of customs experts in key-ports, the enhancement of cooperation with other enforcement administrations and development of partnerships with business communities.

2. Statistics on customs detentions

How many suspected IPR infringing goods were detained in 2012 compared to previous years?

In comparison to 2011, the number of goods detained has decreased from 115 million in 2011 to 40 million in 2012. However, the number of cases has remained stable above 90.000 and the domestic retail value of the goods remained at nearly 1 billion euros. High fluctuations in the number of detained articles have always taken place over the past years. For categories like cigarettes, medicines or labels one shipment can contain several millions of articles and therefore cause these fluctuations very easily. The number of cases remained stable because of the high number of small parcels, probably resulting from internet sales.

What is the major trend?

The last 3 years, customs have seen a shift towards small packages of IPR infringing goods coming into the EU via post and couriers. This is most probably due to the more intense use of the internet and the possibilities consumers have to buy goods via the internet and have them delivered directly at their home. Nevertheless, selling and shipping goods to the EU that infringe an intellectual property right such as a trademark or a patent is illegal.

What is the difference between cases and articles?

A case represents an interception by customs. Each case covers a certain amount of individual articles that can vary from 1 to several million and can relate to different categories.

The total number of cases in 2012 reached 90.473, stable compared to 2011, but showing an increase of more than 1000% over the past decade.

Year  Number of cases

2002

7.553

2003

10.709

2004

22.311

2005

26.704

2006

37.334

2007

43.671

2008

49.381

2009

43.572

2010

79.112

2011

91.254

2012

90.473

Year Number of articles

2002

84.951.039

2003

92.218.700

2004

103.546.179

2005

75.733.068

2006

128.631.295

2007

79.076.458

2008

178.908.278

2009

117.959.298

2010

103.306.928

2011

114.772.812

2012

39.917.445

Source: Report on EU customs enforcement of intellectual property rights at EU border, 2012

Which are the most frequently detained articles?

In terms of numbers of detained articles, the top 3 categories are cigarettes (30.86%); other goods such as bottles, lamps, glue, batteries and washing powder (11.76%); and packaging materials (9.84%).

Source: Report on EU customs enforcement of intellectual property rights at EU border, 2012

What types of medicines have been detained?

As in previous years, the most popular counterfeited medicines are life-style medicines such as diet pills or Viagra type pills. However, medicines such as pain killers, antidepressants or even medicines for cancer treatment were also found as counterfeited medicines.

Where did the suspected IPR infringing goods come from?

China remained the primary country where the suspected IPR infringing goods were sent from at the moment of the detention. For certain product sectors other countries were the main provenance source where the goods were sent from like Morocco for foodstuff or Hong Kong, China for other tobacco products such as electronic cigarettes and liquid fillings.

Source: Report on EU customs enforcement of intellectual property rights at EU border, 2012

Which means of transport were most used to import suspected IPR infringing goods into the EU?

The largest number of cases were detained through postal and express carrier transport (70%), followed by air transport (18%).

Source: Report on EU customs enforcement of intellectual property rights at EU border, 2012


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