THE BESETO CHALLENGE
When customs officials smell a rat, they notify both the rights holder and importer that they are beginning ‘identification procedures’.
In
this process, officials first send the names and addresses of each party—if the information is available—to the other. They then give the parties 10 days to submit evidence about the goods to support their case. This evidence can be swapped by the parties to allow them to submit further material, known as ‘additional opinions’.
Once officials have made their decision, they can destroy or confiscate goods deemed to be counterfeits. They notify both parties of their decision.
Despite customs’ best efforts, many of the counterfeit goods that slip their way through Japan’s border come from China, says Sugimura. “In many of the cases where our clients seek a consultation about counterfeit goods, those goods were purchased from Chinese stores.”
South Korea is another hot spot for counterfeit goods produced in China, says Joo-Young Moon, an attorney at Kim & Chang in Seoul. “From our experience, China is one country that exports a substantial number of counterfeits to South Korea. Also, factories are sometimes established in Korea to manufacture counterfeits.”
To restrict these imports, the Korea Customs Service operates a similar system screening system to
Japan’s. “We think that
“THE IDEA IS FOR CUSTOMS OFFICIALS TO SHARE INFORMATION ON TRENDS AND ON NUMBERS OF GOODS SEIZED, NOTIFY EACH OTHER ABOUT CHANGES IN LEGISLATION AND LIAISE WITH RIGHTS HOLDERS.”
“The Tripartite Customs Heads’ Meeting has provided an important platform for the customs authorities of the three countries to strengthen coordination and cooperation in regional affairs.”
“It is supported by four working groups, ie, working groups for IP rights protection, customs enforcement and intelligence, authorised economic operator and customs procedures. Te customs authorities of the three countries have carried out close and effective cooperation in the above areas as well as in human resources development.”
In April 2012, KIPO reported the result of a crackdown on counterfeiting in the first half of 2012. According to the report, 159 people were charged and 77,726 items worth a combined $7.3 million were
seized. “The infringers
are diversifying into shoes and hats that are popular with teenagers and even drugs such as Viagra, as well as luxury bags,” says Moon.
Tripartite meetings the
authorities are doing a good job overall,” says Moon. “That said, realistically, it is simply not feasible for customs officials to thoroughly examine every single container and shipment which comes through their borders. As such, several other bodies including the police department and Prosecutor’s Office deal with counterfeits through criminal raids and prosecution of infringers.
“The Korean Intellectual Property Office
(KIPO) also established the Special Judicial Police department, whose main purpose is to monitor and address infringing activities in Korea. The police have authority to apprehend infringers for the manufacture, distribution, and sale of counterfeit goods, and can send them directly to the Prosecutor’s Office and punish them with criminal penalties.”
In an effort to coordinate their fight against counterfeiting in north-east Asia, the commissioners and directors of the Japanese, Chinese and Korean authorities have been working together—with the help of brand owners—to try to stop counterfeits circulating.
Since April 2007, when customs officials from the three countries held their first tripartite meeting, protecting and enforcing IP has become a priority. Following the meeting officials set up a Tripartite Working Group, which met for the first time in Tokyo in October 2007. At
its fourth meeting in
November 2011, the group masterminded the ‘Fake Zero Project’, a coordinated attempt to restrict counterfeiting.
The idea is for customs officials to share information on trends and on numbers of goods seized, notify each other about changes in legislation and liaise with rights holders. According to a white paper (China-Japan-ROK Cooperation 1999-2012) released by China’s Ministry of Foreign Affairs in May 2012, the meetings have led to positive developments.
32 World Intellectual Property Review September/October 2012
But Sugimura disagrees, saying not all is well with the project. “My personal impression of the Fake Zero Project is that it does not appear to have
functioned adequately and solved
increasing infringement issues in Japan. But I hope that it establishes effective international systems for IP protection.”
The same white paper explains the coordinated efforts between the national IP offices in each country. Since 2001, the State Intellectual Property Office of China, Japan Patent Office and KIPO have met 11 times. In 2011, they signed a joint statement on enhancing IP cooperation, marking the beginning of a “new stage for trilateral IP rights cooperation”, according to the white paper.
Tis trilateral agreement has triggered “effective and practical cooperation”, comparative patent review studies, and professional training and institutional building, according to the white paper.
“These have greatly boosted their respective IP rights endeavours,” it says. “In the meantime, the three agencies have also explored ways for furthering
cooperation
with ASEAN,
exchanged views on other international IP rights hotspots, and made positive contribution to IP rights cooperation in Asia and beyond.”
The national IP offices and customs officials in the three countries along the Beseto corridor are working together to outsmart the counterfeiters, but they clearly face a difficult task. Their challenge intensifies as counterfeiters increasingly seek to use the Internet to their advantage and find new ways of out-foxing the authorities.
www.worldipreview.com
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