The marketing of counterfeit and pirated goods, and indeed all goods infringing intellectual property rights, does considerable damage to law-abiding manufacturers and traders and to rightholders as well as deceiving and in some cases endangering the health and safety of consumers.
Fraudulent imitation of products may not only entail deviations of trade flows and unfair competition but also cause severe damage to research development as well as to invention and innovation, thus undermining the confidence in the expansion capacity of a polluted Internal Market. The failure to develop research involves a drop in investment, a shift of productions to better-protected markets and eventually results in job cuts by firms.
Counterfeiting and piracy have already penetrated almost all sectors of production and consumption.
The following is not a full list of the commercial sectors involved and gives just a rough idea of the extent of this phenomenon:
Clothes, leather goods, watches, footware, perfumes, glasses, consumer electronics, software, cigarettes, sports equipments, furniture, toys, car spare parts, plane spare parts, medicines, food, spirits.
Some of the above sectors have an immediate and direct impact on consumer health. Therefore, both preventive and administrative actions by control authorities and enforcement actions- such as seizure and destruction of counterfeit and dangerous goods – must be ensured in order to protect consumer health.
Such goods should be kept off the market as much as possible, by taking measures against illegal activities but without impeding the flow of legitimate trade.
Through the adoption of new regulatory instruments, the European Union aims at enhancing Member States’ response and action capacity in respect of such a criminal phenomenon which has taken on alarming proportions in the last few years.
Customs authorities are entitled to take action within the meaning of Articles 4 and 9 of Regulation no.1383/2003. These Articles confer on the Customs Authority the power to suspend the detention or detain suspect goods, and notify the rightholder accordingly.
In this regard, the competent customs authority in Italy is the Customs Agency.
The Central Enforcement Office within the Customs Agency receives rightholders’ applications under Articles 5 and 6 of Regulation no.1383/2003 (see also Circolare 32/D of 23.06.04 – Action by customs authorities –Section II, par. 2)a). Such an Office can decide either to process or not to process an application for action and has to provide the applicant with the reasons for its decision within 30 working days of receipt of the application. The applicant has the right to lodge an appeal against the decision with the Administrative Judge.