BMM Bulletin 3-4/2013, p. 118-134, Olivier Vrins: "One of the most important issues affecting the fight against fakes remains the legal status of goods in transit, which the Commission is trying to tackle – albeit only to a limited extent – when reviewing the EU’s substantive trade mark legislation. Collaboration between the customs administrations of the various Member States and third countries should also be fostered in order to cope with the international trade in goods infringing IPR. Finally, further work should be carried out on the statistical network and electronic data-interchange systems put in place by the Commission and other valuable tools of interest to risk analysis, risk management, selection techniques, etc. This is especially needed in the ever-evolving sector of counterfeiting and piracy, where the patterns of fraud, such as the means of transport, dissimulation techniques, and the like, indicate the increasing expertise of the traffickers and cross-border criminal associations.
One may also expect that other problems, which are, at least in part, beyond the control of the EU legislature, will presumably continue to seriously undermine the job of the Member States’ customs administrations in enforcing IPR. These include the issue of storage of infringing goods, the reluctance of the national authorities in some Member States to prosecute IPR infringements and to apply dissuasive, proportionate, and deterrent penalties in this regard. In an internal market dominated by the principle of free movement of goods, no Member State can afford to be the ‘weakest link’ through which infringing goods will spread across a Customs Union which embraces no fewer than 28 countries. Rights-holders must also accept that their approach has not always been in line with the spirit of the previous Border Measure Regulations. Many of them are reticent to take action against small consignments of infringing goods, whilst others have decided not to file applications for action in all, or at least many, of the Member States. However, it is, to a certain extent, understandable that the rights-holders’ policy, in this sector as in all others, is partly guided by economic considerations, which constitute precisely the reason for having their IPR portfolio in the first place. It is submitted that rights-holders should pay more attention to the quality of applications for action and the need to provide comprehensive training sessions for customs...
One may also expect that other problems, which are, at least in part, beyond the control of the EU legislature, will presumably continue to seriously undermine the job of the Member States’ customs administrations in enforcing IPR. These include the issue of storage of infringing goods, the reluctance of the national authorities in some Member States to prosecute IPR infringements and to apply dissuasive, proportionate, and deterrent penalties in this regard. In an internal market dominated by the principle of free movement of goods, no Member State can afford to be the ‘weakest link’ through which infringing goods will spread across a Customs Union which embraces no fewer than 28 countries. Rights-holders must also accept that their approach has not always been in line with the spirit of the previous Border Measure Regulations. Many of them are reticent to take action against small consignments of infringing goods, whilst others have decided not to file applications for action in all, or at least many, of the Member States. However, it is, to a certain extent, understandable that the rights-holders’ policy, in this sector as in all others, is partly guided by economic considerations, which constitute precisely the reason for having their IPR portfolio in the first place. It is submitted that rights-holders should pay more attention to the quality of applications for action and the need to provide comprehensive training sessions for customs...