IP Competition: Counterfeit goods

Council Regulation (EC) No 3295/94 of 22 December 1994, which lays down measures to prohibit the release for free circulation, export or re-export of counterfeit and pirated goods (the Counterfeit Goods Regulation) is applicable as of 1 July 1995 in all EU member states. The Regulation allows trade mark, design right and copyright holders to receive assistance from the customs authorities to stop distribution of counterfeit and pirated goods before their introduction to the relevant market. (There are also proposals to give customs authorities power to stop goods which infringe patents. This has caused considerable concern given the problems for customs authorities in deciding whether or not a patent is infringed and questions of validity.)

A recent case in Finland has shown the value of these regulations in relation to goods in transit.

Finland

The Finnish Customs Act and Trade Marks Act were harmonised with the Counterfeit Regulation as of January 1, 1996. The change has, both in theory and in practice, improved the chances of trade mark, design right and copyright holders to have pirated goods seized at the border prior to their entry to the Finnish market.

The Regulation leaves seizure matters to the Finnish Customs authorities which have been co-operative over the execution of the seizure provisions.

A motion for seizure should be addressed directly to the Customs authorities and the infringement case must be brought before the District Court of Helsinki within 10 working days from the notification of suspension of release or of detention.

The Finnish Supreme Court held in a recent case (KKO 1997:72) that Articles 6 and 7 of the Counterfeit Goods Regulation were applicable to products in transit to Russia via Finland, strengthening the ability of trademark and copyright owners to stop and seize counterfeit or infringing products being transported via Finnish harbours and railroads to neighbouring countries, such as Russia, even when the products are only in transit.