Legal bases
To counter the problem described above and, accordingly, to create a broader and improved basis for enforcing intellectual property rights, customs authorities have been obligated to combat product piracy by the “Agreement on trade-related aspects of intellectual property rights” (TRIPS Agreement) which was negotiated by the WTO. With regard to this Agreement, the European Union has adopted Council Regulation (EC) No. 1383/2003 and Commission Regulation No. 1891/2004.
These EU Regulations stipulate the measures to be taken by the customs administration and create instruments that enable the customs authorities to withdraw from circulation as early as possible goods that infringe intellectual property rights. The aim of these measures is to prevent so-called “goods infringing an intellectual property right” from being able to be introduced from third countries and brought into circulation in the European Union. The following are deemed to be goods infringing an intellectual property right:
- “Counterfeit goods”: these are goods, including the packaging thereof, which bear, without the consent of the trademark holder, trademarks or signs which are identical to or cannot be distinguished from legally registered trademarks and which therefore infringe the rights of the holder of the trademark in question.
- “Pirated goods”: these are goods which are or contain duplications or copies and have been made without the consent of the right-holder and which infringe the relevant copyrights and related intellectual property rights or design rights.
- Goods which infringe a patent or a supplementary protection certificate for medicinal products or for plant protection products.
- Goods which infringe a plant variety right, a protected designation of origin or a protected geographical indication.
Regulations
“Council Regulation (EC) No. 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights” is the core of the border detention procedure. This Regulation stipulates the measures to be taken by the customs administration and creates instruments which enable the customs authorities to withdraw from circulation as early as possible goods which infringe intellectual property rights.
“Commission Regulation (EC) No. 1891/2004 of 21 October 2004 laying down provisions for the implementation of Council Regulation (EC) No. 1383/2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights ” contains various provisions concerning the implementation of Regulation (EC) No. 1383/2003, including the type of proof that must be provided for the possession of an intellectual property right or the specification of standard printed forms which can be used to file an application for customs action.
Product Piracy Act 2004
With regard to these EU Regulations, the Federal Act enacting supplementary provisions concerning customs action against goods infringing an intellectual property right (Product Piracy Act 2004 – PPG 2004), BGBl. [Federal law Gazette] I No. 56/2004, has enacted supplementary domestic measures, namely:
- Appointment of the Villach customs office (as of 1 March 2007 “Klagenfurt Villach customs office”) as the customs office responsible for receiving applications for customs action;
- Stipulation of national procedural rules;
- Creation of the objection procedure pursuant to Council Regulation (EC) No. 1383/2003.
The Ministry
