The Directive on Enforcement and The Customs Regulation Warsaw May 2006 Martin Ekvad Community Plant Variety Office Head of Legal Affairs

Contents 1. Introduction 2. The Customs Regulation 3. The Directive on Enforcement 4. The proposal for a Directive on Criminal Sanctions

1.Introduction Infringements of IP in general is a growing international phenomenon Jeopardise legitimate business and threaten innovation Problems to right holders, consumers, danger to public health and safety

2. Customs Regulation Council Regulation (EC) No 1383/2003 on customs action against (suspected) counterfeited and pirated goods Implementing Commission Regulation No 1891/2004

Basic contents Customs authorities may  Stop (sometimes even destroy) goods suspected of infringing IP rights The right holder must be involved The importer/exporter’s rights must be respected

Scope In principle; suspected goods under almost all customs situations such as;  Import  Export  Placed in a free zone or free warehouse Limited number of exceptions PVR specifically mentioned as an IPR comprised by the Regulation

Initiating a procedure The right holder or his representative The customs authorities ex-officio  “have sufficient grounds” for suspecting that goods infringe an IP-right  Inform the right holder  Right holder must react within 3 working days

Application To Customs Authority appointed by the Member State in question Customs Chamber in Warsaw Form available, obligatory information As much information as possible about the goods Declaration that the right holder will pay damages in the event that there is no infringement

Application Customs may keep the goods for  10 days (can be prolonged 10 days)  3 days for perishable goods (can not be prolonged) The applicant must within the time limit  Initiate an action in national court  If not, the goods will be released

Simplified Procedure (optional) Within the same time limits (10/3 days)  Holder declares that the goods infringe the IP-right  Agreement form declarant to abandon goods for destruction  Agreement presumed if the declarant has not opposed within the time limit

Goods found to have infringed an IP right Not allowed to be  Imported  Exported Member States should adopt the necessary measures to allow the destruction of the goods

3. Enforcement Directive Directive 2004/48/EC on the enforcement of intellectual property rights harmonisation of  civil law measures,  procedures and  remedies

Enforcement Directive Adopted 29 April 2004 Transposition deadline 29 April 2006 No change in substantive IP rights “TRIPS plus” and “best practices”

Scope IPR rights as provided for by  Community law and/or  laws of the Member States Commission has published a list of IP rights Plant variety rights on the list

Contents Contains provisions inter alia on:  General obligations  Evidence and preserving evidence  Right of information  Provisional and precautionary measures  Corrective measures  Damages and Legal costs

4.Criminal Measures Proposal for Directive and a Council Framework on 12 July 2005 The Commission proposed a Directive on 26 April 2006 Relevant EU legislative procedure will be followed Should be transposed into national law  [18 months after the date of adoption, Art 9]

Scope All intentional IP infringements on a commercial scale including Attempting Aiding or abetting and Inciting such offences

Penalties  Prison  Fines  Seizure of goods  Closure of establishment

Level Prison  maximum sentence of four years if organised crime or health/safety risk Fines  maximum of EUR or  EUR if organised crime or health/safety risk

Level Member States may impose heavier penalties or fines

Final remarks The EU legislator is active and takes enforcement of IPRs serious Legal tools are available to right holders Rights of the defendants must be taken into account Right holders need to be active in order to exercise their rights Member States must implement and apply the provisions

Thanks for your attention !