MARQUES
Te observatory was conceived and established to manage tasks such as collecting and analysing counterfeiting and piracy data, and training and supporting enforcement authorities. Tis aspect of the observatory’s role involves customs, police and judicial authorities. Te observatory works to help enforcement authorities to share knowledge and foster cooperation, and raise public awareness of the economic and social implications of counterfeiting and piracy.
A draſt proposal for a regulation to entrust the European Observatory on Counterfeiting and Piracy to OHIM, which was put forward by the European Commission on May 24, 2011, is being scrutinised by the European Parliament. Te initiative aims to provide the observatory with a clear legal basis and the capacity to deliver its goals in an efficient and sustainable manner.
Marques in the EU
Marques’s status as a permanent observer at OHIM’s Administrative Board and Budget Committee has been confirmed until 2014. Marques has also secured representation in the projects of OHIM’s Cooperation Fund Programme.
to Campinos’s letter on the OHIM Convergence Programme, which aims to harmonise the trademark practices of national offices in Europe. Marques has always strongly supported the Community trademark and design systems and it has promoted the EU’s accession to the Madrid System. However, rights owners having IP protection choices (national, regional and international) is highly beneficial, as each form of protection offers different options to brands that differ and change over time. As users expect IP registration systems to offer the same standards of service, Marques endorses OHIM’s active role in enhancing trademark systems in Europe, promoting harmonisation and increasing competitiveness.
OHIM’s Cooperation Fund and Convergence Programme are examples of how the office can work to create interoperability between different national and regional systems in a transparent and controlled way. Marques acknowledges that both projects can foster practice harmonisation without legislative amendments, especially in areas such as unifying classifications, the use of class headings and the protection that use provides, the creation of a repository for
some of the draſt’s definitions are too narrow and require revision. Te definition of counterfeit goods (Article 2[5] of the draſt regulation) no longer covers packaging, labels and brochures.
However, Marques welcomed the inclusion of parallel trade into the scope of the draſt regulation, which would prevent the inconsistent application of seizure powers across Europe. Similarly, Marques appreciates that the draſt regulation’s simplified procedure for destroying abandoned infringing goods that are under customs control would be mandatory for all EU member states. It is an essential element of cost- effective and efficient IPR enforcement.
On the crucial question of goods in transit, the Court of Justice for the EU (CJEU) ruling that was given on December, 1 2011, in the joined cases of Nokia and Philips raised strong objections and concerns from both IP rights holders and practitioners. Te CJEU ruled that customs authorities may detain goods that come from outside of the EU and are destined for another state outside of the EU only if there is sufficient evidence to consider that these goods were intended to be marketed within the EU. Tis places a further evidentiary burden on customs authorities and brand owners and implies that seizures of alleged counterfeit goods in transit through Europe would not be possible if the alleged goods’ entry into the EU market were not sufficiently substantiated.
MARQUES HAS ALWAYS STRONGLY SUPPORTED THE COMMUNITY TRADEMARK AND DESIGN SYSTEMS AND IT HAS PROMOTED THE EU’S ACCESSION TO THE MADRID SYSTEM.
Te mere existence of counterfeit goods produces direct and indirect damage to brand owners and consumers within the EU, and it affects innovation and the economy globally. Marques has stated this in both its comments on the proposal for a regulation from the European Parliament and the European Council concerning customs enforcement of IP rights and most recently by participating at a public hearing in the European Parliament.
In March 2011, Marques representatives met with OHIM president António Campinos and other OHIM officials in Brussels, Belgium, and in April a Marques delegation visited Alicante, Spain, for the annual OHIM Users Group meeting.
Marques responded positively to Campinos’s Strategic Plan 2011-2015, which was presented in May 2011, and it recently provided a response
seniority claims and a database for assessing the similarity of goods and services.
Marques has also engaged in the European Commission’s IP protection and enforcement initiatives. In November 2011, Marques submitted comments to the European Commission on its draſt customs enforcement regulation. In its submission, Marques noted that
30 World Intellectual Property Review e-Digest 2012
Counterfeiting is one of the most significant challenges facing brand owners today. It has increased exponentially in recent years and while business budgets have soared to combat it, national budgets to help tackle it have decreased. Te goods in transit issue should not be hidden or deflected but carefully reconsidered and this judgement confirms that legislative changes are required. At this juncture, amendments in EU trademark law in relation to goods in transit would be more than appropriate in relation to counterfeiting and piracy.
Marques and WIPO
Marques has been influential in representing the views of brand owners on the development of the international trademark, industrial design and
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