Counterfeiting is an economic and social curse: according to the OECD, counterfeiting accounts for 5 to 7% of world trade, or an approximate value of 200 billion euros.
Contrary to common beliefs, it is not limited to the trade of cigarettes or luxury goods.
Counterfeiting evolves in parallel to the legal market and affects all sectors: food, clothing, personal care or medication. Some seizures made this year highlight this phenomenon. For example, on May 17, 2013, the Customs of Le Havre’s port seized 1.2 million packets of counterfeit aspirin from China. In another case: on May 15, 2013, an inspection at the port of Marseille resulted in the interception of 10,000 packets of biscuits counterfeiting the famous brand “BN”.
Although significant, these seizures are not enough to bring a smile back to the face of French customs. Despite a growing influx of counterfeit goods, mainly from Asia (70%), seizures collapsed in 2012. Constantly increasing, they had reached 8.9 million items seized in 2011 to then fall to 4.6 million the following year. A drop of… 47 % !
If budget cuts also affect the French Customs, they attribute this decline rather more to the effect of the European Court’s decision Nokia-Philips (EUCJ, December 1, 2011, aff. C-446/09 and C-495/09, Koninklijke Philips Electronics NV c/ Lucheng Meijing Industrial Company Ltd and a. and Nokia Corporation c/ Her Majesty’s Commissioners of Revenue and Customs).
Indeed, the approach taken by the Nokia-Philips decision limits the intervention of Customs on goods suspected of infringement in transit or transshipment, including requiring official evidence justifying its action. Thus, since early 2012, the French Customs has stopped working on suspected counterfeit goods in transit or transshipment. This case clearly exposes Europe to the risk to become a platform for counterfeit redistribution!
However, the Nokia-Philips case law is not yet set in stone. The EU Regulation No. 608/2013, which comes into force on January 1 2014, does not proscribe the detention of goods in transit or transshipment. In addition, the European Commission, via its proposals of March 27 2013, has stated its desire to make EU regulations more effective on this point.
French Customs also report an exponential increase in the sales of counterfeit goods on the Internet. These items seized by postal or express freight involved 1% of the items seized in 2005 (35,000 items) and 15% in 2011 (1,421,773).
In 2012, counterfeit items sold on the Internet represented a total of 1,428,281 or 30% of the seizures! Having realized the extent of trafficking in counterfeit goods on the Internet, French Customs launched in March 2009 a special operations unit called “Cyberdouane” (“Cyber Customs”). These findings are also due to the increased activity of this unit.
Thereby, to face counterfeiters in constant evolution, the French Customs has sought to adapt. To be effective, this adaptation by Customs must rely on the ongoing cooperation with all stakeholders directly or indirectly involved.
Among them, are other Customs Services, both Europeans and foreign. If greater harmonization at European level is in progress, including through the EU Regulation No 608/2013 and the proposal of the “packet mark” of the European Commission dated 27 March 2013, it remains a long-term process. As for cooperation with foreign customs services, the French Customs has realized the extent of its importance, and is constantly trying to reinforce ties, mainly with Chinese and Hong Kong services.
In addition, partnership with rights holders improves the efficiency of services. For instance, rights holders can make intervention requests. Free and valid for one year, the intervention requests allows Customs to detain any suspect goods for 10 days and enable them to better target their controls. It also allows holders to successfully protect their intellectual property rights in court.
Between the protection of intellectual property rights on the one hand, and the freedom of circulation of legitimate goods on the other hand, the French Customs is constantly seeking a balance without always having the means to achieve its ambitions.