Like the Regulation which is currently in force, the new draft sets out the conditions and procedures for action by the customs in respect of goods suspected to infringe IPRs while under the customs' supervision. So, what would change if the new draft is approved?
First, the application for customs action will be open not only to right-holders, but also to bodies for the collective management of IPRs, groups of producers entitled to the use of geographical indications and exclusive licensees covering the whole territory of the EU.
Secondly, the proposed new Regulation broadens the scope of the Custom's intervention to include trade names, topographies of semiconductor products, utility models, devices to circumvent technological measures aimed at protecting copyright and parallel-traded infringing goods.
Thirdly, the proposal provides for a general procedure which would allow, under certain circumstances, the destructions of goods suspected of being counterfeit or pirated without the need to initiate legal proceedings to establish an infringement.
In addition to the above, the draft introduces a specific procedure for the swift destructions of small consignments of suspected goods under customs control and at the expense of the customs authorities with could apply without the need to involve the right-holders, unless the party to whom the suspected goods are destined expressly objects to their destruction. If upheld, this innovation could be of particular use to tackle the problem of counterfeit goods sold online.
An issue which remains unresolved under the proposed new Regulation is that of the scope of the customs' power of intervention in respect of goods in transit.
This draft Regulation comes out in the framework of the Commission's revised strategy for the protection of IPRs and as a result of a public consultation closed on 31 March 2011. This is just one of the several proposals launched by the EU Commission with a view to foster the EU single strategy for the protection of IPRs. Other announced initiatives to be presented in the forthcoming months will include a proposal for the multi-territorial collective management of copyright, a review of the Enforcement Directive and a series of policy actions covering patents, trademarks, geographical indications and copyright.
Keep an eye on this blog for further updates on the above and feel free to contact me, Chiara Garofoli (firstname.lastname@example.org) if you want to know more about the current EU customs surveillance system.