By Cédric Puisney
On 25 February 2014 the European Parliament gave its approval to the Proposal for a Directive of the Parliament and of the Council to approximate the laws of the Member States relating to trade marks (recast).
The interesting new provisions contained in the proposal include certain measures which numerous organizations and enterprises across a broad range of sectors have long been calling for, in that they are intended to put an end to the freedom of transit of counterfeit goods through the customs territory of the EU even when those goods are destined for a country outside the Union. The measures approved in this regard are, specifically, the following:
1. The holder of the trademark right may prevent goods coming from third countries and bearing a counterfeit trademark from entering EU territory.
2. The holder of the right may take appropriate legal steps and actions against counterfeit goods. These include the right to request national customs authorities to implement measures to detain and destroy such goods under the new customs Regulation (EU) No. 608/2013.
3. The holder of the right may also prevent the entry into the EU of small consignments of counterfeit goods, particularly in the context of sales over the Internet.
A small consignment is defined in Regulation (EU) No. 608/2013 as a postal or express courier consignment containing three units at most or having a gross weight of less than 2 kg.
Parliament proposes that in these cases the individuals or entities who ordered the goods should be notified of the reason why the measures have been taken and similarly be informed of their legal rights vis-à-vis the consignor.
The provisions thus approved in connection with small consignments follow on from the recent judgment of the Court of Justice in case C-98/13, published on 6 February 2014, in which it was held that, even where the sale of goods for own use had taken place through a website in a non-member country, the holder of the intellectual property right could not be deprived of the protection afforded by the customs regulation and the consequent power to prevent those goods from entering the European market, without there being any need first to ascertain whether the goods had previously been the subject of an offer for sale or advertising targeting European consumers.
In conclusion, the European Parliament has taken a great step forward in the fight against counterfeiting on all fronts and not just inside its territory.
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