International Trademark Association

Rue Belliard 40, 1040 Brussels, Belgium Tel: +32-2-790-4337 | Fax: +32 2 808 8464 inta.org International Trademark Association Comments on the Reform of the Union Customs Legislation: feedback to Commission adoption November 6, 2023 The International Trademark Association (INTA) would like to thank the European Commission for the opportunity to provide comments on the reform of the Union Customs legislation. INTA is a global association of brand owners and professionals dedicated to supporting trademarks and complementary intellectual property (IP) to foster consumer trust, economic growth, and innovation, and committed to building a better society through brands.

…to foster consumer trust, economic growth, and innovation, and committed to building a better society through brands. Members include nearly 6,500 organizations, representing more than 34,350 individuals (trademark owners, professionals, and academics) from 185 countries, who benefit from the Association’s global trademark resources, policy development, education and training, and international network. INTA commends the initiative of the Commission to revise the Union Customs Code (UCC) to strengthen the legal framework for customs and make it suitable to address the challenges that have emerged in recent years for various stakeholders.

…for customs and make it suitable to address the challenges that have emerged in recent years for various stakeholders. To further develop the proposal, INTA would like to draw the attention to some specific aspects that our members have identified as set out below: • Lead times: Article 265 provides for parts of the proposal to apply from 2028, in particular for so-called "deemed importers" (see Article 265(2)(c)). The ambitious timetable should be supported, so as to give all market participants the opportunity to participate as early as possible in a digitalised and faster customs system. However, it should be borne in mind that a longer lead time may be necessary. To avoid misguided investments, implementation measures will only be made once the final regulations are in place. This is particularly true for deemed importers.

…measures will only be made once the final regulations are in place. This is particularly true for deemed importers. The abolition of the €150 limit will result in a significant increase in the number of products to be inspected and will overburden customs offices without sufficient preparation time. Further, even though the Import One Stop Shop (IOSS) system has already been in operation for two years, there are still significant problems with the system, which suggest that a timely extension to duty collection will not be possible or would lead to a significant slowdown in trade. • Information Sharing: Effective data sharing necessitates full interoperability of the various databases which collect information critical to the operation of customs enforcement, and to the collaboration between customs and other national enforcement authorities.

…operation of customs enforcement, and to the collaboration between customs and other national enforcement authorities. The IP Enforcement Portal has already been developed and deployed to ease information sharing between stakeholders in a secure system and connectivity to the EU Data Hub could further strengthen its role in enabling rights holders to protect their products against counterfeiting. Online intermediaries, in particular online marketplaces, also play an important role in the fight against counterfeits and unsafe products, including preventing their entry into the EU. They can, and do, contribute significantly by collecting and sharing relevant data and information with customs authorities to protect European consumers.

…by collecting and sharing relevant data and information with customs authorities to protect European consumers. To ensure that these contributions can be carried out in a more targeted and efficient way, clear and detailed guidelines for all intermediaries (including online, transport and logistics and payment processors) are needed, in particular to ensure that data collection captures the necessary information and appropriately addresses the challenges that the Ref. Ares(2023)7540492 - 07/11/2023 reform proposals are aimed at. In this context, it is also necessary to ensure that the rules on data sharing are effectively enforceable and extend to intermediaries and other stakeholders outside the EU, so as to establish a level playing field.

…and extend to intermediaries and other stakeholders outside the EU, so as to establish a level playing field. • Data security, minimisation, and harmonisation: INTA continues to support a framework for data harmonisation and the re-use of data provided by economic operators in complying with the various formalities required by customs and non-customs authorities for the movement of goods across borders. INTA has long been in favour of initiatives that reduce the burden on both economic operators/right holders and customs authorities. The objectives of the EU Data Hub to standardise processes, make them more efficient and simplify customs clearance for all parties involved are strongly supported. The EU Data Hub would facilitate the collection of information from different actors, its processing for EU customs risk management and exchange with other competent Authorities.

…from different actors, its processing for EU customs risk management and exchange with other competent Authorities. However, some principles of data efficiency must be respected. Only data that are strictly necessary for the implementation of customs measures should be collected and processed. The reduced amount of data will simplify and speed up data processes and ensure an overall reliable flow of data. The critical data elements are, in particular: The unique consignment reference, the IOSS number and further security data. Data should be accessible through an access point set up and maintained by stakeholders. The EU Data Hub must ensure that the interoperability of the platform and the required accesses are compatible with other existing systems in the Member States so as to minimise time and costs for the authorities, stakeholders and economic operators involved.

…the Member States so as to minimise time and costs for the authorities, stakeholders and economic operators involved. We therefore support the underlying approach of Recital 20. Data security is of particular importance for preventing data leaks and misuse of data of importance to the EU and its economic operators. To ensure the future viability and competitiveness of the European market, we therefore support the repeatedly proposed data security guarantee (see Recital 18). • Trust & Check Trader Status: Achieving the status of "Trust & Check Trader" will have a significant beneficial impact on economic operators. However, the requirements set out in Article 25(3) for obtaining this status are too high. SMEs may not be able to overcome the hurdles or will be able to do so only with considerable effort.

…too high. SMEs may not be able to overcome the hurdles or will be able to do so only with considerable effort. The financial and operational burdens, and in particular the requirement for real-time access to data under Article 25(3)(f), is not realistically manageable for SMEs, which will thus be unfairly disadvantaged by having to conduct standard customs processes. • Importer and Compliance controls: With the enhanced EU customs risk management objectives from the EU Data Hub, we would welcome clarification as to which organisation will be responsible for operator due diligence and how, and to what level it will be conducted to determine non-compliant importers and exporters.

…diligence and how, and to what level it will be conducted to determine non-compliant importers and exporters. INTA would appreciate more clarifications on what actions EU customs may take if an importer or exporter is not registered within the EU and goods are claimed to be in transit but are actually unloaded within the EU. In order to create additional deterrents against counterfeits, IPR-infringing and non-compliant goods products, INTA would welcome the inclusion of a failure to comply with the conditions for placing goods on the market in the EU as per Article 88(3)(d) “the goods comply with the relevant other legislation applied by the customs authorities” in the list of Union customs infringements in Article 252.

…other legislation applied by the customs authorities” in the list of Union customs infringements in Article 252. • Determination of risk: In Recital 13 of the UCC Proposal, it is stated that: "The persons responsible for the goods entering and exiting the customs territory of the Union are liable for any risks posed by the goods to the safety, security, health, life, environment, or consumers." INTA would appreciate clarifications on whether this would be a strict liability regime so that counterfeiters are not able to evade penalty or sanction by claiming that they had no knowledge as to the unsafe or hazardous nature of the goods. • Enhanced cooperation: Tackling harmful behaviour and products is a responsibility that is shared also by online and offline intermediaries in the cross-border sale of goods.

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April 29, 2020 Via web response https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12322-Report-on-the- application-of-the-General-Data-Protection-Regulation RE: Roadmap Initiative - Report on the Application of the General Data Protection Regulation To the attention of the EU Commission’s Directorate-General for Justice and Consumers (DG JUST): The International Trademark Association (INTA) is pleased to contribute to the roadmap on this topic. INTA focuses its input on the issue of international transfers of personal data to non-EU countries. In particular, INTA respectfully requests that the European Commission include in the Roadmap an analysis of the impact of General Data Protection Regulation (GDPR) on the flow of information related to registration data for domain names.

…of General Data Protection Regulation (GDPR) on the flow of information related to registration data for domain names. Domain name registration data is collected, processed and accessed under rules established by the Internet Corporation for Assigned Names and Numbers (ICANN) for administration of what is commonly referred to as the WHOIS system. WHOIS is the authoritative database for registration information which includes personal data. ICANN has been working with the multistakeholder community and European data protection authorities to find a common understanding as to what levels of data collection and access are permissible under GDPR, including the development of a centralized system. However, progress is very slow and more interpretative guidance is needed as the unduly prohibitive application of GDPR to WHOIS requests continues.

…and more interpretative guidance is needed as the unduly prohibitive application of GDPR to WHOIS requests continues. As a matter of practice, INTA members have observed that the controllers of domain name registration data have ceased the flow of substantially all personal data to non-EU countries and otherwise. In the past two years, law enforcement, cyber security researchers, intellectual property owners and even data protection authorities themselves have been denied access to personal data from the WHOIS database. This information is needed to respond to fraud and counterfeiting which is on an exponential rise during the CoVID-19 pandemic. The situation described above is not the intention of GDPR but an unintended outcome.

…during the CoVID-19 pandemic. The situation described above is not the intention of GDPR but an unintended outcome. Challenges include: 1) the omission in Article 6 of provisions that explicitly allow processing for the establishment, exercise or defense of legal claims, despite allowing for that basis for processing elsewhere in the regulation (it is apparent that corresponding penalties under GDPR are necessary for data controllers and processors who refuse to grant, or even acknowledge, legitimate requests for access); and 2) clarity around the Accuracy principle in Article 5(1)d, i.e., that controllers are responsible for accuracy of the data they collect, and that third parties who Ref. Ares(2020)2295677 - 29/04/2020 2 rely on authoritative databases should be permitted to notify controllers about inaccuracies which should be corrected.

…on authoritative databases should be permitted to notify controllers about inaccuracies which should be corrected. Thank you for your consideration of INTA’s comments. If you have any further questions or comments regarding this submission, please contact Lori Schulman, Senior Director, Internet Policy at [email protected] or Hélène Nicora, Chief Representative, Europe at [email protected]. Sincerely, Etienne Sanz de Acedo Chief Executive Officer About INTA The International Trademark Association (INTA) is a global association of brand owners and professionals dedicated to supporting trademarks and related intellectual property (IP) to foster consumer trust, economic growth, and innovation. INTA’s members are more than 7,200 organizations from 187 countries, including 1,351 in the European Union and the UK.

INTA’s members are more than 7,200 organizations from 187 countries, including 1,351 in the European Union and the UK. The Association's member organizations represent some 31,000 trademark professionals and include brand owners from major corporations as well as small- and medium-sized enterprises, law firms, and nonprofits. There are also government agency members, as well as individual professor and student members. Headquartered in New York City, INTA also has offices in Brussels, Santiago, Shanghai, Singapore, and Washington, D.C., and a representative in New Delhi. For more information, please visit https://www.inta.org

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Rue Belliard 40, 1040 Brussels, Belgium Tel: +32-2-790-4337 | Fax: +32 2 808 8464 inta.org International Trademark Association Comments on the Reform of the Union Customs Legislation September 14, 2022 The International Trademark Association (INTA) would like to thank the European Commission for the opportunity to provide comments on the reform of the Union Customs legislation. INTA is a global association of brand owners and professionals dedicated to supporting trademarks and complementary intellectual property (IP) to foster consumer trust, economic growth, and innovation, and committed to building a better society through brands.

…to foster consumer trust, economic growth, and innovation, and committed to building a better society through brands. Members include nearly 6,500 organizations, representing more than 34,350 individuals (trademark owners, professionals, and academics) from 185 countries, who benefit from the Association’s global trademark resources, policy development, education and training, and international network. INTA applauds the European Commission’s initiative to reform, modernize, and harmonize the Union Customs Code (UCC) to deliver a uniform Customs Union that acts as one. Given the critically important role that customs play in the fight against counterfeits, this is an important exercise to ensure that there is not an inconsistent approach by national customs authorities in the European Union (EU).

…to ensure that there is not an inconsistent approach by national customs authorities in the European Union (EU). The global nature of INTA’s membership makes it even more important to work towards establishing a coordinated and coherent response at the EU level. As the 2020 DG TAXUD report highlighted, customs seizures at EU borders of articles suspected of infringing intellectual property rights (IPR) skyrocketed in 2019.1 Studies such as this one reinforces that strong IPR enforcement remains an important tool for preventing the proliferation of counterfeit goods in the EU. For this reason, it is even more important that there is further action by the European Commission for a structural modernization of the Customs Union.

…important that there is further action by the European Commission for a structural modernization of the Customs Union. INTA suggests that the following measures be taken into consideration to tackle several of the challenges identified in the Call for Evidence: • Data Harmonization: INTA supports a framework for data harmonization and enabling the re-use of data provided by economic operators when fulfilling the different formalities required by customs and non-customs authorities for the cross-border movement of goods. Indeed, INTA has long been in favor of supporting any initiative that ease the burden on the shoulders of both the economic operators/right- holders and the customs authorities. • Information Sharing: INTA is supportive of processes to share information more effectively.

…the customs authorities. • Information Sharing: INTA is supportive of processes to share information more effectively. As part of this process, it is necessary to reconcile the goal of information sharing with the limitations set forth by data privacy rules. Some key areas of difficulty that may be identified include the use of information obtained with respect to goods seized by Customs for broader investigations on the individuals or companies involved in the shipping of counterfeit goods (and possibly the networks behind them). More importantly, it is critical that as part of a uniform Customs Union the various databases that 1 https://taxation-customs.ec.europa.eu/system/files/2020-12/ipr_report_2020.5464_en_04.pdf Ref. Ares(2022)6311478 - 13/09/2022 would be used by Customs authorities would be interoperable to facilitate effective information sharing.

- 13/09/2022 would be used by Customs authorities would be interoperable to facilitate effective information sharing. • EU Customs Single Window Trader Portal: INTA supports measures for the development of an EU Customs Single Window Trader Portal to fulfill customs and non-customs regulatory formalities required for import, export, and transit of goods. This should include formalities and requirement regarding counterfeit goods entering or transiting into the EU territory. • Capacity building: INTA and its members remain available to provide Customs trainings at the EU level and to support a coordinated system for more regular trainings. It is a key part of INTA’s Anticounterfeiting strategy.

…and to support a coordinated system for more regular trainings. It is a key part of INTA’s Anticounterfeiting strategy. • Small Consignments: The Internet has made it easier for counterfeiters to conduct their illicit activities anonymously, and as we have seen over the last year, more consumers are relying on the Internet to purchase essential goods. This makes enforcement and proactive monitoring of small consignments even more important. This trend has been even more emphasized by the challenges posed by the COVID-19 pandemics when consumers could mainly rely on the Internet for suppliance of goods. • Customs Governance: By creating a IPR Coordination Center at national level in the EU, Member States could facilitate coordination and information sharing among Member states as well as with the private sector.

…could facilitate coordination and information sharing among Member states as well as with the private sector. INTA published A Guide to Building an Intellectual Property Rights Coordination Center. This document promotes the establishment of Intellectual Property Rights (IPR) Centers at the federal/union level worldwide. INTA thanks the European Commission for its consideration on this submission and remains available to discuss these recommendations in further detail. INTA also looks forward to supporting the European Commission and DG TAXUD in this process to reform the Union Customs legislation. We welcome the opportunity to provide further comments to support this important topic as it develops.

…legislation. We welcome the opportunity to provide further comments to support this important topic as it develops. Please contact the following INTA representatives: Christina Mitropoulos Tat-Tienne Louembe Director, External Relations - Anticounterfeiting Chief Representative Officer, Europe and IGOs [email protected] [email protected]

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