Customs action to tackle goods infringing Intellectual Property Rights – Frequently Asked Questions

See also IP/14/890

1. General information about Intellectual Property Rights (IPRs)

Why is it important to protect IPRs?

As the EU’s 2020 Strategy underlines, the protection of IPRs is key to the EU economy. By giving people the incentive to be creative and innovative, IPRs foster economic growth, creating and protecting millions of jobs.

What customs measures are in place at EU level to protect IPRs?

Since 2003 EU rules lay down the provisions for customs actions to protect and enforce intellectual property rights and since 2004 specific provisions provide for the submission by Member States of information on the detentions made and applications for action lodged by IPR holders.

The new Regulation of June 2013 concerning customs enforcement of intellectual property rights has become applicable on 1st of January 2014 (see MEMO/13/526 and MEMO/13/527).

EU customs authorities are coordinating their activities via the EU Customs Action Plan to combat IPR infringements for the years 2013 to 2017 (see MEMO/12/967).

What role do Customs play in the protection of IPRs?

Right-holders can ask for customs action to protect their rights at the border. When they have a suspicion of an infringement, customs can detain the goods or suspend their release and inform the right-holder accordingly. The right-holder is given the opportunity to initiate court proceedings to determine the infringement, while the goods remain under customs control.

Is the detention of IPR-infringing goods only a matter for customs authorities?

Customs administrations are the controlling bodies at the external frontiers of the EU.

In most Member States, law enforcement authorities other than customs administrations are responsible for controlling IPR infringing goods within their territories, for example at open markets or production sites.

How important is industry’s role in protecting IPRs?

For customs to take action, right-holders must submit an application for action to the customs authorities.

The identification and grounds for suspicion of an infringement rely on the information provided by industry in the application for action (such as the type of IPR infringing goods, information on production and means of transport, physical characteristics of original goods, etc.). The European Commission, together with Member States has established a manual for right holders for lodging and processing applications for action. Right holders may lodge an application, requesting customs to take action even when they do not have a concrete suspicion that their IPRs are infringed.

Evidence of the close cooperation between customs and the private sector is shown in the evolution of the numbers of applications for action submitted to customs. Since 2007 the number of applications for action made in the Member States has increased from 10 260 to 26 865 in 2013.

Number of applications 2007 – 2013

Source: Report on EU customs enforcement of intellectual property rights at EU border, 2013

What happens to goods once they are detained by customs?

In over 90 % of detentions, the goods were either destroyed or a court case was initiated to determine the infringement. In almost 8 % of cases, the goods were released because they appeared to be non-infringing original goods or no action was undertaken by the right-holder after receiving the notification by the customs authorities.

Breakdown of result by cases

Source: Report on EU customs enforcement of intellectual property rights at EU border, 2013

What is done to ensure customs cooperation on IPRs with non-EU countries?

In addition to EU controls at points of entry into EU territory, it is necessary to act at the source of the problem by stopping the export of IPR infringing goods and, where possible, by shutting down the production. This requires international cooperation.

For example, the EU is cooperating with China in the framework of the newly signed EU-China customs action plan on IPR enforcement (MEMO/14/353). The new plan concentrates on 5 key areas, namely the exchange of statistical information, the creation of a network of customs experts in key ports, promoting cooperation with other enforcement agencies and authorities, development of partnerships with business communities and exchange of knowledge and experience of each other’s IPR enforcement policies and practices.

2. Statistics on customs detentions

How many suspected IPR-infringing goods were detained in 2013 compared to previous years?

In comparison to 2012, the number of items detained has decreased from 40 million in 2012 to 36 million in 2013. The number of cases is also a little less at nearly 87.000 compared to 90.000. Fluctuations in the number of detained articles have always taken place over the past years. For categories like cigarettes, medicines or labels one shipment can contain several millions of articles and therefore cause these fluctuations very easily. The number of cases remained stable because of the high number of small parcels, probably resulting from internet sales.

What is the major trend?

The last four years, customs have seen a shift towards small packages of IPR infringing goods coming into the EU via post and couriers. This is most probably due to the more widespread use of the internet and the possibilities consumers have to buy goods via the internet and have them delivered directly at their home. Nevertheless, selling and shipping goods to the EU that infringe an intellectual property right such as a trademark or a patent is illegal.

What is the difference between cases and articles?

A case represents an interception by customs. Each case covers a number of individual items that can vary from one to several million and can relate to different types of goods. The total number of cases in 2013 reached 86 854, slightly less than in 2012, but showing an increase of 100% over the past five years.

Number of registered cases

Number of detained articles

Source: Report on EU customs enforcement of intellectual property rights at EU border, 2013

Which are the most frequently detained articles?

In terms of numbers of detained articles, the top three categories are clothing (12.33%); other goods such as insecticides, shoe polish, lights bulbs, glue, batteries, air refreshers, washing powder (11.13%); and medicines (10.10%).

Source: Report on EU customs enforcement of intellectual property rights at EU border, 2013

What types of medicines have been detained?

As in previous years, the most popular counterfeited medicines are life-style medicines such as diet pills or Viagra type pills. However, medicines such as aspirin, diuretics or antibiotics were also found as counterfeited medicines. Furthermore this category of products also contained some large quantities of fake condoms.

Where did the suspected IPR-infringing goods come from?

China remained the primary country where suspected IPR-infringing goods were sent from. For certain product sectors other countries were the main source e.g. Egypt for foodstuff, Turkey for perfumes and cosmetics and Hong Kong, China for other body care items, mobile phones, memory cards and sticks, ink cartridges and electrical household appliances.

Source: Report on EU customs enforcement of intellectual property rights at EU border, 2013

Which means of transport were most used to import suspected IPR-infringing goods into the EU?

The largest number of cases were detained through postal and express carrier transport (72%), followed by air transport (17%).

Source: Report on EU customs enforcement of intellectual property rights at EU border, 2013