22 Amendments of Andreas SCHWAB related to 2011/0137(COD)
Amendment 61 #
Proposal for a regulation
Recital 2
Recital 2
(2) The marketing of goods infringing intellectual property rights does considerable damage to right-holders, law- abiding manufacturers and traders. It is also deceiving consumers, and could in some cases endanger their health and safety. Such goods should, in so far as is possible, be prevented from entering the customs territory and be kept off the market and measures should be adopted to deal with this unlawful activity without impeding legitimate trade.
Amendment 69 #
Proposal for a regulation
Recital 5
Recital 5
(5) Regulation (EC) No 1383/2003 does not cover certain intellectual property rights and excludes certain infringements. In order to strengthen the enforcement of intellectual property rights, customs control should therefore be extended to other types of infringements, such as infringements resulting from parallel trade, as well as other infringements of rights already enforced by customs authorities but not covered by Regulation (EC) No 1383/2003. For the same purpose it is appropriate to include in the scope of this Regulation, in addition to the rights already covered by Regulation (EC) No 1383/2003, trade names in so far as they are protected as exclusive property rights under national law, topographies of semiconductor products, utility models and devices to circumvent technological measures, as well as any exclusive intellectual property right established by Union legislation.
Amendment 75 #
Proposal for a regulation
Recital 10
Recital 10
(10) In order to ensure the swift enforcement of intellectual property rights, it should be provided that, where the customs authorities suspect, on the basis of adequate evidencehaving sufficient reason to believe this, that goods under their supervision infringe intellectual property rights, those customs authorities may suspend the release or detain the goods whether at their own initiative or upon application, in order to enable the persons entitled to submit an application for action of the customs authorities to initiate proceedings for determining whether an intellectual property right has been infringed.
Amendment 78 #
Proposal for a regulation
Recital 11
Recital 11
(11) Where goods suspected of infringing intellectual property rights are not counterfeit or pirated goods, it may be difficult to determine upon mere visual examination by customs authorities whether an intellectual property right might be infringed. It is therefore appropriate to provide that proceedings should be initiated, unless the parties concerned, namely the declarant or the holder of the goods and the right-holder, agree to abandon the goods for destruction. It should be for the competent authorities dealing with such proceedings to determine whether an intellectual property right has been infringed and to take appropriate decisions concerning the infringements of intellectual property rights concerned.
Amendment 86 #
Proposal for a regulation
Recital 15
Recital 15
(15) For further legal clarity and in order to protect the interests of legitimate traders from possible abuse of the border enforcement provisions, it is appropriate to modify the timelines for detaining goods suspected of infringing an intellectual property right, the conditions in which information about consignments is to be passed on to right-holders by customs authorities, and the conditions for applying the procedure allowing for destruction of the goods under customs control for suspected infringements of intellectual property rights other than for counterfeit and pirated goods and to introduce a provision allowing the holder of the goods to express his/her views before the customs administration takes a decision which would adversely affect him/her.
Amendment 89 #
Proposal for a regulation
Recital 16
Recital 16
(16) Taking into account the provisional and preventive character of the measures adopted by the customs authorities in this field and the conflicting interests of the parties affected by the measures, some aspects of the procedures should be adapted to ensure a smooth application of the Regulation, whilst respecting the rights of the concerned parties. Thus, with respect to the various notifications envisaged by this Regulation, the customs authorities should notify the most appropriate person, on the basis of the documents concerning the customs treatment or of the situation in which the goods are placed. The periods laid down in this Regulation for the required notifications should be counted from the time those are sent by the customs authorities in order to align all periods of notifications sent to the concerned parties. The period allowing for a right to be heard before an adverse decision is taken should be three working days, given that the holders of decisions granting applications for action have voluntarily requested the customs authorities to take action and that the declarants or holders of the goods must be aware of the particular situation of their goods when placed under customs supervision. In the case of the specific procedure for small consignments, where consumers are likely to be directly concerned and cannot be expected to have the same level of diligence as other economic operators usually involved in the accomplishment of customs formalities, that period should be significantly extende right for consumers to be heard before a decision is taken by the customs authority should be established.
Amendment 94 #
Proposal for a regulation
Recital 16 a (new)
Recital 16 a (new)
(16a) The customs authority in receipt of an application for action shall suspend the release of or shall detain those goods from a non-Community country placed under a suspensive procedure as soon as it has sufficient reason to suspect an intellectual property right has been infringed.
Amendment 97 #
Proposal for a regulation
Recital 17
Recital 17
(17) Under the "Declaration on the TRIPS Agreement and Public Health" adopted by the Doha WTO Ministerial Conference on 14 November 2001, the TRIPS Agreement can and should be interpreted and implemented in a manner supportive of WTO Members' right to protect public health and, in particular, to promote access to medicines for all. In particular with regard toWithout prejudice to Directive 2011/62/EU of the European Parliament and of the Council of 8 June 2011 amending Directive 2001/83/EC on the Community code relating to medicinal products for human use, as regards the prevention of the entry into the legal supply chain of falsified medicinal products1, for medicines the passage of which across this territory of the European Union, with or without transshipment, warehousing, breaking bulk, or changes in the mode or means of transport, is only a portion of a complete journey beginning and terminating beyond the territory of the Union, customs authorities should, when assessing a risk of infringement of intellectual property rights, take account of any substantial likelihood of diversion of these goods onto the market of the Union. Within two years of the adoption of this Regulation, the Commission shall assess the effectiveness of actions by Customs against falsified medicinal products. _______________ 1 OJ L 174, 1.7.2011, p. 74.
Amendment 101 #
Proposal for a regulation
Recital 17 a (new)
Recital 17 a (new)
(17a) In order to step up action against infringements of intellectual property rights, the European Observatory on Counterfeiting and Piracy should play an important role in providing customs authorities with useful information enabling them to act quickly and effectively.
Amendment 104 #
Proposal for a regulation
Recital 20
Recital 20
(20) Given that customs authorities take action upon prior application, it is appropriate to provide that the holder of the decision granting an application for action by the customs authorities should reimburse all the costs incurred by the customs authorities in taking action to enforce his/her intellectual property rights. Nevertheless, this should not preclude the holder of the decision fromshould have the right to seeking compensation from the infringer or other persons that might be considered liable according to the legislation of the Member State concerned, for example certain intermediaries such as carriers. Costs and damages incurred by persons other than customs administrations as a result of a customs action, where the goods are detained on the basis of a claim of a third party based on intellectual property, should be governed by the specific legislation in each particular case.
Amendment 128 #
Proposal for a regulation
Article 2 – point 5 – point 5.1 – introductory part
Article 2 – point 5 – point 5.1 – introductory part
Amendment 133 #
Proposal for a regulation
Article 2 – point 5 – point 5.1 a (new)
Article 2 – point 5 – point 5.1 a (new)
5.1a. any packaging, label, sticker, brochure, operating instructions, warranty document or other similar item, even if presented separately, which is the subject of an action infringing a trade mark and which includes a sign identical to a validly registered trade mark, or which cannot be distinguished in its essential aspects from such a trade mark, for a use for the same type of goods as that for which the trade mark has been registered;
Amendment 140 #
Proposal for a regulation
Article 2 – point 7 – introductory part
Article 2 – point 7 – introductory part
7. ‘"goods suspected of infringing an intellectual property right’" means goods with regard to which there is adequate evidenceare sufficient reasons to satisfy customs authorities that, in the Member State where these goods are found, are prima facie:
Amendment 184 #
Proposal for a regulation
Article 16 – paragraph 3
Article 16 – paragraph 3
Amendment 195 #
Proposal for a regulation
Article 17 – paragraph 3
Article 17 – paragraph 3
Amendment 205 #
Proposal for a regulation
Article 18 – paragraph 2 – subparagraph 1
Article 18 – paragraph 2 – subparagraph 1
The customs authorities may take samples representative of the goods as a whole and may provide such samples to the holder of the decision granting the application, at his/her request, strictly for the purposes of analysis and to facilitate the subsequent procedure in relation to counterfeit and pirated goods. Any analysis of those samples shall be carried out under the sole responsibility of the holder of the decision granting the application.
Amendment 218 #
Proposal for a regulation
Article 20 – paragraph 2 – point b
Article 20 – paragraph 2 – point b
(b) a written agreement between the holder of the decision granting the application and the declarant or holder of the goods to abandon the goods for destruction.
Amendment 227 #
Proposal for a regulation
Article 23 – paragraph 2 – subparagraph 1
Article 23 – paragraph 2 – subparagraph 1
Where the declarant or holder of the goods has not confirmed his/her agreement to destruction within the periods set out in paragraph 1(b) nor notified his/her opposition to destruction to the customs authorities that adopted the decision to suspend the release of the goods or to detain them, the customs authorities mayshall deem that the declarant or holder of the goods has agreed to their destruction.
Amendment 228 #
Proposal for a regulation
Article 23 – paragraph 3
Article 23 – paragraph 3
3. The destruction shall be carried out under customs control, at the expense and under the responsibility of the holder of the decision granting the application, unless otherwise specified in the legislation of the Member State where the goods are destroyed. Samples representative of the goods as a whole may be taken prior to destruction.
Amendment 234 #
Proposal for a regulation
Article 24 – paragraph 1 – point b a (new)
Article 24 – paragraph 1 – point b a (new)
(ba) it has been confirmed by the holder, after having been informed, that the goods are counterfeit or pirated goods;
Amendment 240 #
Proposal for a regulation
Article 24 – paragraph 7
Article 24 – paragraph 7
7. The destruction shall be carried out under customs control and at the expense of the customs authoritiesholder of the decision granting the application.
Amendment 250 #
Proposal for a regulation
Article 28 – paragraph 1
Article 28 – paragraph 1