Cross border measures and actions taken vis-à-vis goods infringing intellectual property rights in the light of recent EC legislation : a comparative study

Abstract

Notwithstanding the protection of the intellectual property laws, intellectual property rights are rendered worthless if there were no system in force which effectively enforces such rights. Regrettably, the infringement of intellectual property rights has become an increasingly widespread phenomenon giving rise to several negative implications and therefore the essence for the setting up a system for the enforcement of the intellectual property rights becomes even more evident. This thesis sets out to explore the recent European Community legislation on the cross border measures that are adopted with respect to goods suspected of infringing intellectual property rights, being Council Regulation (EC) No. 1383/2003 together with Commission Regulation (EC) No. 1891/2004 laying down provisions for the implementation of the former Regulation. This is further substantiated with the interpretation and application of such Regulations within a few Member States of the European Community, principally within Malta and to a lesser extent within Belgium. However, one cannot tackle the subject without briefly referring to the multilateral international Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods, 1 st January 1995, which was the first to provide for cross border measures and since the European Court of Justice itself has encouraged the Member States of the European Community to respect it. Reference is also be made to the earlier Council Regulations dealing with cross border measures, which have now been repealed and replaced, in order to analyse the present EC legislation not in a vacuum but within the context of a historical legislative evolution. This is essential for the reader to be able to determine the improvements and the lacunas that are present at an EC level with respect to this subject-matter. Throughout the thesis, it will become evident that it is fundamental that the countering of the problem of goods infringing intelle.ctual property rights does not solely depend on the introduction of effective laws on cross-border measures but also on the effective collaboration between the customs authorities of the different Member States and between the customs authorities and the right holders and on the interest shown by the latter to enforce their rights. However, this thesis shall also discuss the shortcomings of the Regulations and a few national laws of the EU dealing with this specific area, and present some suggestions for different types of reform to better safeguard the right holders' rights.