MARQUES
Some significant initiatives have been put forward by Marques over the last 12 months. Diana Versteeg, the newly elected Chair of the Marques Council, reports.
Marques, the European association representing brand owners’ interests, has always been committed to maintaining a balanced and coherent system of national, regional and international treaties, laws and regulations relevant to intellectual property rights, particularly
trademarks, designs geographical indications.
In this context, Marques has consistently supported the European Commission’s initiatives aimed at creating an efficient IP rights strategy for Europe, which is necessary to strengthen measures to protect trademarks and all IP rights, including against infringements.
Marques has voiced IP rights holders’ views to the European Commission and the European Parliament during the review of
the EU IP
Enforcement Directive and the proposal for a new and much stronger regulation on customs enforcement of IP rights.
Te review of the European trademark law
and practice regime is another key element towards the establishment of an efficient legal framework for trademark protection. It
is
expected that the revision of the EU Community Trademark Regulation (CTMR) and the EU Trademarks Directive (TMD) could bring those improvements that would be required to amend the still divergent legal and procedural structures in the different member states, and to increase the level of legal security as well as provide more efficient responses to the global problem of considerable violations of IP rights, notably trademarks, in trade as well as in the digital environment.
Marques believes that a fundamental legislative change is needed to tackle the ever increasing problems with counterfeiting and piracy. Te trade in counterfeit products is a global concern and has an adverse effect on the economy notably on the ability of businesses, including small and medium-sized enterprises (SMEs), to allocate sufficient budget to defend themselves from counterfeiting while at the same time investing in innovation and job creation.
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One of the desirable improvements that the TMD/CTMR legislative review could introduce into substantive law is a more robust approach towards the serious problem of goods in transit. Marques has called for this during consultations relevant
to both the CTMR/TMD legislative
package and the customs enforcement regulation reviews as well as in other interventions, including meetings held with officers of Directorates- General and Commissioners’ cabinets at the European Commission in October 2012.
In its submission on the proposal for a regulation on customs enforcement of IP rights, Marques supported, inter alia, the inclusion of parallel trade in the scope of
the regulation and
remarked that closure of significant gaps in enforcement on the transit issue was also needed. Marques also stated that it does not support the suggestion that goods in transit should infringe in both the country of transit and the country of destination in order to be seized. If this were the case, infringers would designate as the country of
destination a country without trademark
protection or a place where the trademark for the goods in transit is not registered.
Aſter the ruling of the Court of Justice of the European Union (CJEU) on the joined cases of Nokia and Philips on December 1, 2011, the IP rights community at large had expressed serious concerns
that there would be an unjustified
burden on IP rights holders. Tey would have to prove that goods in transit cannot automatically be considered counterfeit and there would have to be sufficient evidence that they were intended to be diverted on to the EU market to have them seized by customs authorities.
Te compromise amendments concerning goods in transit as proposed in the review of
the customs enforcement regulation by
the rapporteur Committees to the European Parliament were supported by Marques as these were seen to have potential to bring a much fairer solution for rights holders (and consumer protection) by reversing the burden of proving the final destination of the goods to the declarant or holder of the goods, and in applying the IP
laws of the member state in which the goods are found or where an application is made.
However, because of the approach taken in the Council of the EU’s draſt compromise text dated April 25, 2012, especially in relation to the issue of goods in transit, Marques and other IP organisations urged the Council—ahead of the Council vote on May 29, 2012—to retain
those amendments
as adopted by the European Parliament’s Internal Market and Consumer Protection Committee (IMCO) regarding goods in transit, as these would enable customs authorities to deal more effectively with the issue of suspected counterfeit goods in transit under the proposed customs regulation.
Te outcome of the European Parliament’s vote of July 3, 2012 was that brand owners had reassurance that the new regulation would provide a much stronger and more consistent legislation. In respect of goods in transit, according to the text as adopted at first reading during the vote in plenary by the European Parliament, the new regulation would apply to goods which are suspected of infringing an IP right in transit through the customs territory of
the EU. Te burden of proving the final
destination of the goods should be borne by the declarant or holder or the owner of the goods. Te Commission had to adopt guidelines that should provide criteria for customs authorities to effectively assess their risk of being diverted on to the EU market, taking into account the relevant case law of the CJEU.
Te outcome of this plenary vote served as the
European Parliament’s position in negotiations with the Council for a possible second reading. Discussions between the European Parliament, the Council of the EU and the European Commission were held aſter European Parliament’s vote, in December 2012. Te text of the proposal as agreed by the Permanent Representatives Committee at its meeting on December 21, 2012 and which has been endorsed by the IMCO at its meeting on January 24, 2013 now confirms a definitive exclusion of parallel imports from the scope of the regulation as well as a less effective means of dealing with goods in transit.
World Intellectual Property Review e-Digest 2013 29
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