Why do counterfeit goods pose a risk to your business?
From luxury products and consumer electronics to pharmaceuticals and industrial components, intellectual property (IP) infringement can damage brand value, reduce consumer trust, and create serious health and safety risks.
Regulation (EU) 608/2013 concerning customs enforcement of intellectual property rights lays down measures to take into detention goods by which intellectual property rights are infringed. Intellectual property rights (“IP rights”) means trade marks, designs, copyrights, patents, geographical indications, plant variety rights, topographies of semiconductor products.
How does customs seizure of counterfeit goods work in the EU?
As one of the primary EU member states in the import and export of goods, the Netherlands has implemented customs controls for IP rights. Under the regulation, customs can seize goods that are suspected of infringing these IP rights. The EU system provides for a notification of the IP rights holders filed at customs beforehand.
Customs enforcement is particularly effective because it enables authorities to intervene before products enter commercial circulation. Instead of requiring multiple legal actions after goods have reached retailers and consumers, enforcement can occur directly at the border.
Moreover, next to customs seizures at the border and liaising with customs, criminal complaints may also be filed at the police for illegal trade.
How do you file an application for action with customs?
IP rights holders may submit an application to protect IP rights, requesting Member States' customs authorities to take action (so-called “application for action”). Next to IP rights holders, persons and entities entitled to initiate proceedings may also submit an application (once mandated). In principle, customs authorities charge no administrative costs for filing such notices.
For reasons of effectiveness, applicants are encouraged to provide detailed information such as:
- Images of authentic products;
- Product identification data;
- Information on authorized distributors;
- Risk indicators and supply-chain information;
- Etc.
Where appropriate, IP rights holders and their representatives should use the electronic applications for action to customs.
When can customs destroy counterfeit goods without a court order?
One of the regulation’s most powerful tools is the destruction procedure. When customs detain goods suspected of infringing IP rights, the goods may be destroyed. Specifically, destruction may proceed without a court order where:
- the rights holder confirms infringement and agrees to destruction;
- the declarant or holder of the goods agrees or fails to object within the prescribed period
This system allows effective pre-litigation enforcement of IP-rights, usually also by way of parallel cease-and-desist letters to the parties involved in the infringement of IP rights in reaching settlements quickly. In doing so these anti-counterfeiting measures help in fighting copies, dupes and pirated goods.
Can counterfeit goods be recycled instead of destroyed?
Recent initiatives show that effective protection of IP rights and sustainability may go hand-in-hand, where recycling counterfeit goods is becoming an increasingly important alternative to destroying goods that infringe IP rights. As examples from customs authorities and IP rights holders show, recycling initiatives have been successfully implemented, taking into account legal, logistical, and possible safety concerns associated with handling counterfeit materials.
What are the first steps towards a customs enforcement strategy?
The Anti-counterfeiting regulation represents a cornerstone of the EU’s strategy against counterfeiting and piracy. By empowering customs authorities to intervene at the border, putting in place the notification procedure and simplifying destruction procedures, the regulation provides rights holders with a practical and effective enforcement mechanism.
For companies whose value depends on brands, technology, designs, or copyrighted works, maintaining an active customs enforcement strategy under Regulation 608/2013 remains one of the most effective ways to protect intellectual property within the European Union.
