The effective protection of Europe’s single market and European consumers from counterfeit goods continues to be a great success. According to recent EU statistics, the quantity of fake products intercepted and detained by EU Customs is on the increase with almost 115 million fake products detained at EU borders representing a total economic value of €1.3 billion.
Industry itself plays an important role in combating counterfeit goods
- Mariosa Vella Cardona

Medicines such as diet pills and Viagra-type medicines, packaging material and cigarettes top the list in so far as imported counterfeit goods are concerned. Statistics confirm that products for daily use and products that could be potentially dangerous to the health and safety of consumers are next on the list accounting for a total of 28.6 per cent of the total amount of detained articles over the past year.

In the face of such illicit trade, the EU has long realised that it needs to take the necessary measures to protect Europe’s economy and citizens. Indeed, the protection of intellectual property rights is a cornerstone of the EU economy and a key driver for its further growth in areas such as research, innovation and employment. Effective intellectual property right enforcement is also essential for health and safety, as certain counterfeited products such as foodstuffs, body care products and children’s toys which are produced in an unregulated environment can pose a serious threat to consumers.

There are a number of measures which have been adopted at EU level with the objective of ensuring the maximum protection of intellectual property rights in Europe. There is no doubt that EU Customs play a crucial role in preventing products which violate intellectual property rights from penetrating the EU’s single market. This is why in 2011 the European Commission proposed a regulation which seeks to enhance previous legislation in this field by increasing Customs’ powers to combat illicit trade.

The proposed rules widen the list of possible intellectual property right infringements which can be controlled by Customs at European borders extending them to illegal parallel trade. The Commission has also sought to extend the list of protected rights to trade names, topographies of semiconductor products, utility models and others. The existing procedure for the destruction of goods infringing intellectual property rights will also be made mandatory for counterfeit and pirated goods in all member states. The proposed regulation has been recently adopted by the European Parliament but still awaits a vote in Council.

The protection of patents and trademarks in Europe through legislation which harmonises national legislative measures in this field is another tool through which the EU has sought to protect its market.

Certain initiatives such as the adoption of laws setting up and regulating the registration of a Community trademark and unitary patent protection, offer intellectual property right holders effective ways through which they can protect their rights on an EU-wide basis with minimum effort and at a reasonable cost.

Things are however far from perfect and, owing to the increasing demand for more streamlined, effective and consistent registration systems, the Commission intends to present proposals in 2012 to modernise the trade mark system both at EU and national levels and adapt it to the internet era.

Other initiatives taken at EU level have included the offer of support directly to EU SMEs so that they are made aware of intellectual property rights challenges before expanding their business into particular markets. Such support is offered through help desks like the China IPR SME Helpdesk or the EU IPR Helpdesk. Cooperation with trading partners is also indispensable in order to secure assistance in preventing the export of counterfeit goods to the EU. In 2009, the EU signed an action plan with China which specifically focuses on enhancing cooperation in IPR Customs enforcement. The plan has now been extended to the end of 2012.

Industry itself plays an important role in combating counterfeit goods particularly when it comes to identifying fake products. As the quality of IPR infringing goods has substantially improved and highly technical goods are on the increase, Customs have found it increasingly difficult to distinguish genuine products from the infringing products.

This is where the business community comes in. Traders can also request Customs to take action where they suspect that their intellectual property rights are being violated. The European Commission, in collaboration with member states, has published a manual for right holders for lodging and processing applications for action.

Protecting our markets from rogue traders wanting to take a free ride over the investment in time and money made by others is indispensable both for Europe’s economy and for the wellbeing of European citizens. Reliance cannot however be made solely on Customs, effective as they might be in halting this phenomena.

Traders assisted by the legal framework in place at both national and EU level need to take it upon themselves not only to protect their rights by registering their trademarks or other intellectual property rights but even by enforcing such rights against those who act in breach of their rights.

mariosa@vellacardona.com

Dr Vella Cardona is a practising lawyer and a freelance consultant in EU, intellectual property, consumer protection and competition law. She is the deputy chairman of the Malta Competition and Consumer Affairs Authority as well as a member of the National Commission for the Promotion of Equality.