counterforce - Counterfeiting

Counterfeiting Perspectives
member states may refuse admission to a free zone of goods brought from abroad on
grounds of the protection of patents, trademarks and copyrights (violations) but leaves
national customs authorities free to enact local rules matters not specifically covered
by the convention. The WCO-IPR Strategic Group also analyzed the relevant provision
of the Kyoto Convention and came up with the Guidelines on Controlling Free Zones,
Goods in Transit/Transshipment and Obligations on Service Providers in Relation to
Intellectual Property Rights Infringements (WCO Guidelines).
Also, the World Customs Organization (WCO) in Article 1 of its Model Provisions For
National Legislation to Implement Fair and Effective Border Measures Consistent With
the Agreement on Trade-Related Aspects of Intellectual Property Rights (WCO Model
Provisions), maintains that “A right holder may submit applications to customs, in
accordance with the procedures and under the conditions set out in this law, for the
suspension of the customs clearance and the detention of imported goods, goods
destined for exportation and goods in transit.”
Even if these international agreements and guidelines expressly directed local customs
authorities to inspect all transshipped goods for infringing materials, these measures
would still be ineffective on a global basis because the scope of enforcement would be
limited to signatory countries that had passed some form of enacting legislation.
Recommendations
Unrestricted regimes for the transshipment and transit of goods through free trade
zones and free ports constitute a very important factor that contributes to the development
and extension of the scale of trafficking of counterfeit and pirate goods around
the world. Uncontrolled transshipment of goods should not be allowed, as it does not
remain in conformity with the necessity to protect intellectual property rights.
There is a need for a legal framework for establishing the responsibility of public
authorities, especially customs authorities, to apply border measures for the purpose
of undertaking effective actions in relation to goods that undergo transshipment or
transit and are suspected of being counterfeit or pirate.
There is also a need to alter the approach of customs authorities, which often tend
to treat goods in transit with lesser scrutiny than goods imported or exported. They
strongly emphasize that the legal position of goods in transit, as well as the degree
of scrutiny when applying border measures in relation to goods in transit, should be
the same as in relation to goods that are “not in transit” i.e. goods which are imported
or exported. Initiatives towards this objective resulted in the WCO Guidelines as
mentioned above.
National policy makers around the world should be urged to consider the following
broad options to increase intellectual property rights enforcement in FTZs and FPs:
♦ Governments should prohibit or restrict admission to “free trade zones” of goods
that violate trademark rights, irrespective of country of origin of such goods, the country
from which such goods arrived or the country of destination of such goods
♦ Governments should ensure that their national customs authorities exercise
jurisdiction before the entry and after the exit of goods into a free trade zone
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