ANTI-COUNTERFEITING


Aſter all the efforts that have been made in that last few years in Mexico, most notably the ones undertaken by customs authorities (General Customs Administration or AGA, a branch of the Federal government that is part of the Servicio de Administración Tributaria—SAT— the Mexican equivalent of the Internal Revenue Service in the US), it seems that there is a part of the Mexican government establishment that deliberately wants to slow down the progress that is under way.


Mexican customs was awarded the 2010 Yolanda Benitez Trophy presented by the World Customs Organization (WCO) “for demonstrating keen commitment to combating counterfeiting and piracy”. Such recognition was a direct result of the actions and seizures of fake merchandise that started at the end of 2008 and increased dramatically during 2009, resulting in the largest amount of counterfeit items that have been seized by any government or law enforcement agency in a given period so far.


Such a historic accomplishment was celebrated with the above-mentioned award, but what has happened in the last year-and-a-half, and in what ways have smugglers and counterfeiters evolved to cut back their losses and continue to profit from their illegal trade? And in what ways can right owners improve their anti-counterfeiting efforts while keeping up with the challenges of enforcing and protecting their valued IP portfolios?


In order to explain the present conditions and what we can foresee in the next few years, it is important to explain the circumstances that led to the current involvement of Mexican customs in anti-counterfeiting efforts. In the months that preceded the award of above- mentioned trophy to the Mexican government, law enforcement and customs officials began to notice a reduction in the number of large-scale counterfeit shipments that arrived at the most important Mexican seaports on the Pacific coast (Manzanillo, State of Colima; Lazaro Cardenas, State of Michoacan; and, sometimes, Ensenada, State of Baja California).


Such decline was directly related to a significant growth in small shipments arriving to the country via air courier or mail; as the 20 and 40-foot ship containers coming into the country from South East Asia (mainly China) proved an


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easy target for increasingly proficient Mexican officials, counterfeiters began to ‘atomise’ their shipments by dividing the risks attached to one single shipment into dozens and even hundreds of small packages that could get passed customs disguised as giſts, samples or personal items.


Furthermore, and due to the lack of a direct route from Chinese mainland ports to smaller Central American ports in Guatemala, Honduras, El Salvador and Nicaragua, shippers of fake merchandise used the ‘international transit’ regime (ie, it was supposed to remain in port only for a short period while awaiting being loaded and re-shipped to its ‘final’ destination) to transport very large quantities of counterfeit items to Central America. Before leaving Mexican ports, some of the containers were subjected to a customs regime change (from ‘international transit’ to ‘regular import’) and imported legally into Mexico under different schemes, while a significant portion of the items that were shipped to Central America were later transported back by truck to the southern Mexican border with Guatemala or Belize, where the fakes could be easily smuggled into the country.


Tese somewhat elaborate mechanisms were and, unfortunately, are still possible due to the poor control that Mexican authorities have over the country’s southern border. Mexico shares more than 1,100 kilometres of border with Guatemala and Belize, and only two customs offices, with fewer than 150 officers between them, are responsible for overseeing and guarding this vast amount of terrain.


As this situation progressed, IP rights holders and part of the Mexican legal community successfully pressured customs and justice authorities to increase their efforts to better identify ‘international transit’ shipments and to exert legal actions (including seizures at Mexican ports) against such shipments. Tese pressures resulted in the record-establishing seizures and actions during 2009 and 2010, but the situation has changed in the last months.


Following the record seizures of previous years, and as a direct result of the diplomatic pressure from Central American governments and shipping companies (who face liabilities and extra costs due to the losses suffered by counterfeiters/ shippers-turned-unsatisfied customers, while also having to endure the temporary detention


World Intellectual Property Review Annual 2012 19


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