The purpose of this regulation is to prevent, as far as possible, the presence of counterfeit merchandise on the European Union market and to take the measures necessary to stop illegal marketing of goods infringing intellectual property rights without hindering legitimate trade.
Implementation and application
The new (EU) Regulation 608/2013 will replace the current 1383/2003 of the Council of 22 July as from 1 January 2014, with two exceptions:
- Articles 6; 12 point 7 and 22 point 3 (on protection application forms) which came into force on 19 July last, and
- Articles 31 points 1 and 3 to 7; and 33 (on data exchange and protection) that will apply as from the time when the central data base to which article 32 refers is set up. The Commission will publish this date.
MAIN NEW ITEMS IN THE REGULATION:
1) Object and scope of application
- Apart from the rights already covered by the earlier Regulation 1383/2003, new rights are included in the scope of protection, such as: trade names, topographies of semi-conductor products, utility models and devices designed, produced or adapted primarily to allow or facilitate the circumvention of technological measures.
- This regulation does not apply to goods transported by travellers in their personal luggage provide they are earmarked exclusively to personal use.
- Likewise, the exclusion of the sphere of application of this regulation to parallel imports, which extends to overruns, is kept.
2) Applicant’s obligations and liability
- The notifications an applicant for intervention is obliged to make are more precisely detailed; the use he may make of information Customs provides him as to the holders of the goods and consequences of failing to comply therewith: revocation or suspension of intervention and refusal to extend same.
3) SIMPLIFIED goods destruction procedure
- The main new item is that the current regulation deems it opportune for the simplified procedure (optional up to now) to become mandatory, due to the good results achieved in applying the former Regulation avoiding drawn out legal procedures.
Consequently, in accordance with the said procedure, goods will be destroyed when:
- The right holder confirms the infringement and gives his consent to destruction in a term of 10 days as from Customs notifying the goods have been detained (three days for perishable goods).
- The holder of the goods does not oppose their destruction in a term of 10 days as from the Customs notification (three days for perishable goods).
- If the holder of the goods opposes their destruction, the applicant for intervention will be informed and, in a term of 10 days (three for perishable goods), shall commence a legal procedure with the purpose of ascertaining whether infringement has occurred. Otherwise, once Customs formalities have been fulfilled, the goods will be released.
4 ) New procedure applicable in the event of “minor consignments”
A highly simplified procedure is created for small consignments of counterfeited goods, mail consignments or urgent consignments (three or less units or a gross weight less than two kgs). The right holder must have expressly applied for this procedure in his application.
When this procedure is applied, Customs will notify the detainment to the goods holder without contacting the right holder, giving the former a term of 10 days to consent to their destruction. If he consents to destruction or raises no opposition thereto, they can be destroyed. Otherwise, the applicant for the intervention is informed and the general procedure applies (10 days to lodge an action).
5 ) Destination of the goods seized
- Very clear rules are established for destroying illegal and dangerous goods entering into or in transit through the EU and Customs are provided with tools enabling them to work quicker and more efficiently.
- The Customs authorities may decide to clear the said goods for their subsequent recycling or disposal outside commercial channels and with the aims of raising awareness, training or education.
6) Measures to be adopted by the Member States:
- Member States must suitably train their Customs officials to ensure that this regulation is properly applied.
- Member States must promote risk management technology and strategies to maximize the resources available to Customs authorities.
- The Commission is charged with creating a central data base before 1 January 2015, which will encourage the Exchange of information between Member States and the Commission.