Statement of the Max Planck Institute for Intellectual Property, Competition and Tax Law on the Review of EU Legislation on Customs Enforcement of Intellectual Property Rights

23 Pages Posted: 15 Jun 2010

See all articles by Thomas Jaeger

Thomas Jaeger

University of Vienna - Faculty of Law

Henning Grosse Ruse-Khan

University of Cambridge - Faculty of Law; Max Planck Institute for Innovation and Competition

Josef Drexl

Max Planck Institute for Innovation and Competition; Ludwig Maximilian University of Munich

Reto Hilty

Max Planck Institute for Innovation and Competition; University of Zurich; Ludwig Maximilian University of Munich

Date Written: May 28, 2010

Abstract

Between March and June 2010, the European Commission has conducted a consultation on the review of Council Regulation 1383/2003, concerning customs action against goods suspected of infringing IP rights (the so-called Border Measures Regulation; BMR). The Max Planck Institute for Intellectual Property, Competition and Tax Law, Munich, participatet in that consultation with a statement.

In that statement, the Institute proposes several amendments to the definitions, scope and procedural provisions of the BMR. The proposals go into much detail, yet their main line can be generalized int wo ways: In terms of the scope of the BMR, firstly, the Intitute sees a need to distinguish between genuine acts of transit and other forms of passage. Genuine acts of transit should be excluded from the scope of the BMR. However, the transit definition or genuinity-requirement is not demed to be fulfilled wehere, in particular, there is a substantiated threat of either trade diversion onto any of the markets of the EU member states or of a misuse of the transit procedure for conduct of an illicit activity. In view of the special nature of such transits, a specific exclusion from the scope is also proposed for specific public health-related transits. In terms of procedural rights under the BMR, secondly, the Institute proposes several amendments with a view to achieving a better balancing of rights and enhanced TRIPS-conformity.

Keywords: Customs, border measures, Regulation 1383/2003, Border Measures Regulation, TRIPS, transit, Montex, seizure, procedure, IP, enforcement, patents, trademarks, public health

Suggested Citation

Jaeger, Thomas and Grosse Ruse-Khan, Henning and Drexl, Josef and Hilty, Reto, Statement of the Max Planck Institute for Intellectual Property, Competition and Tax Law on the Review of EU Legislation on Customs Enforcement of Intellectual Property Rights (May 28, 2010). Max Planck Institute for Intellectual Property, Competition & Tax Law Research Paper No. 10-08. Available at SSRN: https://ssrn.com/abstract=1622619 or http://dx.doi.org/10.2139/ssrn.1622619

Thomas Jaeger (Contact Author)

University of Vienna - Faculty of Law ( email )

Schottenbastei 10-16
Vienna, A-1010
Austria

HOME PAGE: http://deicl.univie.ac.at/en/

Henning Grosse Ruse-Khan

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, Bayern 80539
Germany

Josef Drexl

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, Bayern 80539
Germany

HOME PAGE: http://www.ip.mpg.de

Ludwig Maximilian University of Munich

Munich, 80539
Germany

Reto Hilty

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, Bayern 80539
Germany

HOME PAGE: http://www.ip.mpg.de

University of Zurich

Rämistrasse 74/7
Zürich, CH-8001
Switzerland

Ludwig Maximilian University of Munich

Munich, 80539
Germany

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