Enforcement of Intellectual Property Rights

In view of the increasing counterfeiting and piracy which has become an international phenomenon, on the 30 November 2000 the European Commission adopted a Communication presenting its action plan at Community level to combat counterfeiting and piracy in the single market.

The main element of this action plan was to adopt a Directive on the enforcement of intellectual property rights (=> Download PDF file). This Directive was adopted at its first reading on 29 April 2004. Member States have two years to implement it.

The new Directive harmonizes national legislations of the Member States on remedies and civil sanctions against counterfeiting and piracy. Rightholders across the European Union will enjoy a similar set of measures, procedures and remedies to defend their intellectual property rights if they are infringed.

The Directive shall apply to "any infringement of intellectual property rights as provided for by Community law and/or by the national law of the Member State concerned". In its proposal, the Commission had limited the scope of the Directive to infringements committed for commercial purposes.

The Directive includes procedures relating to evidence and the protection of evidence as well as provisional measures such as injunctions and seizure. Remedies available to rightholders are the destruction, recall or permanent removal of the illegal goods from the market, as well as financial compensation, injunctions and damages.

The provision on criminal sanctions (Article 20 of the Commission's proposal) has however been withdrawn.

During the legislative work, AEPO presented a position paper to the members of the European Parliament (=> Download PDF file). AEPO was principally concerned about the amendments made by the European Parliament to Articles 5 (persons entitled to apply) and 6 (presumption of authorship or ownership) of the Commission proposal.

But action against counterfeit or pirated products must also be taken at the European Community's border and in third countries.

In this connection, in July, 2003, the European Council of Ministers adopted a regulation n° 1383/2003 concerning action by customs administrations against goods suspected of infringing certain intellectual property rights (=> Download PDF file). This regulation which came into force on the 1st July 2004, replaced the previous regulation (3295/94/EC), and sets out the conditions under which customs authorities may intervene when goods are suspected of infringing intellectual property rights.

As regards third countries, the renewed priority of the European Union is the effective implementation of enforcement legislation on intellectual property rights put in place by WTO members within the frame of the TRIPS Agreement.

During the International Conference commemorating the 10th Anniversary of the TRIPS Agreement (=> Speech by Pascal Lamy - Press release) the European Commission presented its Strategy for the Enforcement of Intellectual Property Rights in Third Countries (=> Download PDF file).

The European Commission proposes a series of action lines to tackle the lack of enforcement of intellectual property rights in third countries. The emphasis is put on cooperation and not on threatening those countries where enforcement of intellectual property rights remains poor. This document is still open and subject to comment.