Anti-counterfeiting fight : a strengthened and more focused customs strategy

Paris, February 12, 2019 – On October 1st, the Ministry of Justice and the Director of Criminal Affairs and Pardons sent a document presenting the new strategy of the Directorate General of Customs and Excise (DGCE) in the fight against counterfeiting to judicial authorities.

This new strategy -the main objectives of which are presented below- reflects a desire to fight counterfeiting quicker and more efficiently, but also to ensure greater consumer protection.

For this purpose, the Directorate General of Customs plans to:

1. Differentiate customs controls to focus efforts on high stakes fraud situations. Thus, without completely ceasing all control and/or seizure, customs services will limit their actions in cases of fraud with “low” stakes. This concerns, for example, articles offered for sale in flea markets, fairs, and markets as well as articles brought back by travelers and intended -in the majority of cases- for personal use.
   
   Similarly, customs services intend to focus on the collection of information regarding express or postal freight (names of the sender and consignee, and their addresses), with the objective of developing an information database in an attempt to fight counterfeiting directly at the source.
   
   Through this reorganization, the Customs Administration intends to find a faster way of dealing with low-stakes issues and thus gain time for fighting against trafficking of prohibited goods, specifically those which are dangerous for consumer health and/or safety. In addition, it will enable the exploitation of all collected information in an attempt to dismantle organized fraud networks.
   
   
2. Increase the accountability of rights holders who have filed requests for intervention, to allow customs services to save time and avoid unnecessary expense.
   
   Until now, the DGDDI had the possibility of placing goods on hold following a request for intervention from the rights holder or seizing counterfeit goods autonomously (in other words, without an explicit request from the rights holder). However, the customs administration wishes to generalize the withholding of goods at the rights holder’s request in order to avoid performing seizures on which right holders will not act.
   
   Furthermore, the withholding of goods implies that the rights holder fulfills its part of the contract, providing an expertise of the counterfeit nature of the goods and approving the course of action to be taken (simplified destruction of the goods or lawsuit). Now, when the rights holder does not comply with these requirements -which may have real consequences for the customs services (loss of storage fees, payment of damages and interest to the holder of the goods…)- the release of goods will be automatically pronounced by the DGDDI. This provision will apply, regardless of the counterfeit nature of the goods, with the exception of dangerous goods or those originating from an organized fraud network.
   
   In line with this new approach, customs may eventually “sanction” a rights holder who does not comply with this procedure by suspending its request for intervention.
   
   
3. Give maximum priority to the simplified destruction procedure – with the agreement of the rights holder and the holder of the goods- for counterfeit cases with no particular stakes (no identified network or no danger for consumers). This procedure applies, provided that other customs offenses are not recorded at the same time. Costs of storage and destruction of the goods will be borne by the rights holder.
   
   
4. Routine seizure of goods in case of danger or organized network. This is the new priority of the DGDDI, which will apply this procedure without taking the opinion or the position of the right holder into account and with the aim of obtaining the opening of an administrative and/or judicial inquiry.
   
   
5. Reinforced information exchange between customs and prosecution with regard to detention. This will notably allow for a quicker, more effective connection to ongoing court cases.
   
   
6. Strengthening criminal prosecution with genuine coordination between the Public Prosecutor Office’s action and regional customs directorates. Once again, the DGDDI hopes to focus prosecution, not only on goods related to organized crime, but also on cases of counterfeit goods that are dangerous to consumer health and safety (aggravating circumstances may also be invoked).
   

As the traffic of goods is constantly evolving and constitutes -in the majority of cases- a real danger for consumers, these measures are both interesting and necessary. The desire to focus directly on the source of this trafficking (wholesalers, organized networks, etc.), particularly with the help of the collection of information, could focus efforts and put a definitive end to certain “scattered” organized networks in different geographical locations or on the Internet.

These measures should also be accompanied by a new EU Customs Action Plan, a draft of which was issued on September 24, 2018, by the Council of the European Union and which provides further actions for repressing, as effectively as possible, infringement of intellectual property rights.