Rights-holders have welcomed proposals to significantly strengthen the powers of EU border control officials to detain and destroy goods which infringe the rights of IP holders in Europe. The draft regulations for customs enforcement of intellectual property rights are intended to update and broaden the scope of the existing Regulation (EC) No. 1383/2003.

One of the most significant changes proposed in the draft regulations, is to extend the scope of what can be detained at the EU border to include parallel imports from outside the EU. The draft regulations also extend the class of goods which may be detained by customs to include goods which infringe a trade name, the topography of a semiconductor product or a utility model. It is also proposed that customs will have the power to detain devices which circumvent technological measures to allow infringements in the EU.

The proposal represents a considerable widening of the rights of rights-holders because currently EU customs only have the power to detain but not destroy:

  • counterfeit and pirated goods;
  • patent infringing goods;
  • goods infringing national or community plant variety rights; and
  • goods infringing geographical designations and geographical indications.

The draft regulations implement EU wide the practice whereby Member States may destroy counterfeit goods as long as the importer has not expressly opposed destruction within a specified period of time. Her Majesty’s Customs & Excise already operates this practice (see HMRC Reference: Notice 34 (June 2010)) and it is hoped that the extension of this practice to all the Member States will reduce costs for rights-holders.

It is also proposed that small consignments of suspected counterfeit goods covered by a customs notice may be destroyed by EU border customs without involvement of the rights-holder. This power will be complemented by provisions which protect the legitimate interests of traders from possible abuse by rights-holders.

The draft regulations are the result of a lengthy consultation process commenced in 2009. According to the Commission, the proposal is intended to harmonise the enforcement procedures of customs across the single market, while respecting the legal framework within the EU Member States.

The draft regulations have now been sent to the European Parliament and the Council for consideration and it is hoped that new regulations will enter into force in 2012.

For further information, please refer to 'Customs enforcement of intellectual property rights - Frequently Asked Questions' article.