NEW COUNCIL REGULATION 11033/03 CONCERNING CUSTOMS ACTION AGAINST GOODS SUSPECTED OF INFRINGING CERTAIN INTELLECTUAL PROPERTY RIGHTS

On July 18, 2003, the Council of the European Union enacted a new regulation on the above referenced subject. The new regulation will apply beginning July 1, 2004. On the same date, the previous Regulation (EEC) No. 3295/94 will be replaced by the new regulation.

What is new?

The new regulation will bring about a significant amelioration for the owner of intellectual property rights in the regime of border seizures. This does not concern the entire concept of the border seizure, which is that goods which are placed within the territory of a Member State and which infringing an intellectual property right can be subject to a border seizure. This concept was already contained in the previous regulation. Rather, the new regulation will help the intellectual property owner under several practical aspects: The new regulation covers the situation where the counterfeit or pirated goods are exported, re-exported or leaving the Community customs territory. Therefore, counterfeit or pirated goods cannot escape from a border seizure based on the allegation that the goods are to be re-exported. Another practical aspect is that even if no application for border seizure has been lodged, such goods can be detained for a certain period to allow the right-holder to lodge an application for action with the customs authorities. Furthermehr, there is a mehr flexible regime to destroy goods infringing certain intellectual property rights.

In one respect, the new regulation brings clarity in a way which is not in favour of the owner of the intellectual property rights: At least in Germany, parallel imported goods – which were manufactured outside the Community with the consent of the right-holder but brought into the Community without his consent – could be subject to a border seizure. In contrast hereto, the new regulation clearly states to be not applicable to such parallel imports.

However, in summary, the new regulation ameliorates the position of intellectual property right owners in Europe.