Public Citizen Submits Comments on EC Customs Regulation 1383/2003

Peter Maybarduk
Guest Blogger, Public Citizen
June 7, 2010

Public Citizen's comments to the European Commission on the DG TAXUD consultation paper, “Review of EU legislation on customs enforcement of intellectual property rights,” are available here:

Summary: Findings and recommendations

  • The European Commission should propose revisions to Council Regulation1383/2003 limiting ex officio intellectual property customs actions to cases of willful commercial scale trademark counterfeiting and willful commercial scale copyright piracy.
  • Accordingly, patent infringement, similar marks and other civil intellectual property infringements should be excluded from the regulation, and excluded from customs actions absent a judicial order or equivalent legal process.  (Textual references in 1383/2003 to “other intellectual property rights” should be deleted.)
  • These limitations on the scope of the regulation should apply equally to goods entering or exiting the European market and goods in transit.  But if the revised regulation continues to cover a broad range of intellectual property categories for goods destined for the European market, then the provisions applied to goods in transit nevertheless should be limited to willful trademark counterfeiting and copyright piracy on a commercial scale.  Commercial rights held in EU member states should not impede the free movement of legitimate goods that are not destined for the EU market.  Intellectual property rights are national (or, in some cases, European Community) in scope.  Stopping legitimate in transit goods may create a de facto international intellectual property regime, beyond the appropriate scope of EU authority, with global costs for competition.
  • Among IP infringements, only willful commercial scale trademark counterfeiting of certain potentially dangerous classes of products poses a categorical public safety risk.  Willful commercial scale counterfeiting and willful commercial scale piracy are criminal offenses under TRIPS, and appropriate targets for law enforcement actions at state borders.
  • By contrast, other categories of IP infringements - civil infringements, including patent and “similar,” non-counterfeit trademark infringement - do not pose an inherent safety risk. Civil infringements generally do not represent a fraud on the public. Generally, alleged civil infringements are fundamentally commercial disputes between legitimate entities, for which traditional legal remedies are and should be available.  As civil infringements are not fakes, and the parties generally do not operate in a cloak of secrecy in the manner of criminal organizations, they do not require preemptive law enforcement interdiction wherever they appear in the channels of commerce. Rather, assessing infringement requires judicial process, and often, expert legal analysis, that is beyond the competence of customs authorities.
  • Council Regulation 1383/2003 does not adequately distinguish between civil and criminal infringement (with the exception of a few provisions of limited but important effect, such as Article 14). Treating civil and criminal infringements equally imposes costs on competition, including but not limited to restricting the free movement of generic medicines.

To support these recommendations, our subsequent comments (available at: briefly:

  • Note the essential role of competition and the generics trade in promoting global access to safe, effective and affordable medicines,
  • Note the risks to access to medicines that overly broad intellectual property enforcement measures can pose,
  • Analyze the relationship between the major categories of intellectual property infringement and the interests of health and safety, distinguishing between civil, similar mark infringement and criminal trademark counterfeiting.

We draw on the above to answer consultation paper questions one and two in further detail (situations in which customs authorities should be competent to take action;  range of intellectual property rights the
regulation should cover and possible derogations), and suggest some specific revisions to the text of 1383.  We conclude with a few further recommendations to protect consumers from fraudulent, unsafe products.

Permalink :