UNION DES FABRICANTS

…1 EU Transparency Register: 527831213232-14 REVISION OF THE UNION CUSTOMS CODE UNIFAB CONTRIBUTION September 19th 2022 https://ec.europa.eu/eusurvey/runner/5a18696e-e2f8-4496-bb36-791803568e2c PRESENTATION OF UNIFAB UNIFAB is the French association for the promotion and the protection of intellectual property rights (IPRs). Today, the association represents more than 200 French, European and International companies as well as professional federations from various sizes and all sectors of activity; and serves as a unique guardian of IPRs of its members, standing as a platform for discussions on this topic. UNIFAB was originally created for fighting against fake medicines coming to France from Eastern Europe.

…on this topic. UNIFAB was originally created for fighting against fake medicines coming to France from Eastern Europe. After 150 years of work, the association is organized around 4 main missions: (i) communication and awareness-raising activities to the general public; (ii) training of public authorities; (iii) lobbying activities towards national governments and European administrations in order to strengthen existing legislations and regulations on intellectual property; (iv) discussions with online intermediaries (e-commerce platforms, social networks, hosting providers, search engines, etc.). The association also works on an international scale as counterfeit does not have any frontiers. UNIFAB is very thankful for the opportunity given by the DG TAXUD towards the private sector and associations.

UNIFAB is very thankful for the opportunity given by the DG TAXUD towards the private sector and associations. It is a manner for UNIFAB to bring up comments from its members regarding the preparation of EU Customs code revision. UNIFAB kindly invites the DG TAXUD to find below its comments on the EU Customs code revision. CONTEXT & INTRODUCTION DG TAXUD informed that the EU Customs code will be revised in 2022. As they are preparing the draft, it asked to provide comments or submit any relevant updates regarding any particular information or potential issues related to this code. UNIFAB would also like to thank the DG TAXUD for having agreed to extend the deadline for participation. As a quick introduction, “the volume of international trade in counterfeit and pirated products could amount to as much as USD 509 billion. This represents 3.3% of world trade.

…in counterfeit and pirated products could amount to as much as USD 509 billion. This represents 3.3% of world trade. […] Drawing on detailed EU data, this study also performs an in-depth assessment of the situation in the Ref. Ares(2022)6470709 - 19/09/2022 2 EU Transparency Register: 527831213232-14 European Union. The results show that in 2016, imports of counterfeit and pirated products into the EU amounted to as much as EUR 121 billion (USD 134 billion), which represents up to 6.8% of EU imports. […] While counterfeit and pirated goods originate from virtually all economies in all continents, China and Hong Kong, China continue to be by far the biggest origin.

…from virtually all economies in all continents, China and Hong Kong, China continue to be by far the biggest origin. The companies suffering from counterfeiting and piracy continue to be primarily registered in OECD countries; mainly in the United States, France, Switzerland, Italy, Germany, Japan, Korea and the United Kingdom.”1 As a French association for the promotion and protection of intellectual property rights, representing a large number of right holders, UNIFAB puts a lot of efforts in making sure the cooperation and collaboration between its members and European law enforcement authorities is as most effective as possible. Indeed, ensuring the best sharing of information between all those stakeholders, and giving all possible means to these latter to combat counterfeiting is key to reducing this scourge within EU’s internal market.

…possible means to these latter to combat counterfeiting is key to reducing this scourge within EU’s internal market. UNIFAB COMMENTS ON THE REVISION OF THE UNION’S CUSTOMS CODE 1. Making sure counterfeiting and the promotion of intellectual property rights is a priority of all EU customs authorities To begin with, we note with regrets that “counterfeiting” did not find a place of priority in the call for evidence document on which this consultation is based. It is an illustration that this scourge is not given due consideration, despite the alarming figures quoted in the introduction of this position paper. UNIFAB thus calls the European Commission, and especially DG Taxud, to keep intellectual property rights protection as a number one priority of their activities, and especially within the framework of the revision of the EU Customs code, so that all EU customs authorities will remain…

…in terms of the number of counterfeit products that are intercepted at the EU's borders or within the internal market. 2. The EU Customs practices should be better harmonized within all EU Member States Despite having a nice harmonized application for action (AFA or e-AFA) put in place at EU level, allowing right holders to file a single AFA which will give all European customs authorities the 1 OECD/European Union Intellectual Property Office (2019), “Executive summary”, in Trends in Trade in Counterfeit and Pirated Goods, OECD Publishing, Paris/European Union Intellectual Property Office, Alicante, https://www.oecd- ilibrary.org/trade/trends-in-trade-in-counterfeit-and-pirated-goods_fc47e382-en 3 EU Transparency Register: 527831213232-14 ability to seize products covered by the said application for action, the fight against counterfeiting by such law enforcement authorities is…

…by such law enforcement authorities is hampered by the lack of harmonized application of customs legislation in the EU. The EU Customs Code regulation, as well as other EU legislations dealing with customs practices (i.e. regulation 608/2013) are positive common grounds defining clear procedures and action plans for an effective protection of intellectual property rights. Nevertheless, those regulations still lack harmonization between all Member States, and sometimes between regions within a single Member State.

…still lack harmonization between all Member States, and sometimes between regions within a single Member State. Indeed, here after are some areas of improvement that DG Taxud should closely look into, in order to provide with a strong legislative framework when it comes to customs activities: - The disparate application of customs secrecy, which lacks consistency as regards to common lists of information to be communicated or not by EU customs to right holders; - The disparities in the application of costs related to the storage, transport and destruction of counterfeit goods, which are still covered by right holders for the time being. Here, the recent regulatory evolution for France can be taken as an example, where these so-called costs have been abandoned; - The application of the transit regime and the control of goods in transit at borders and within the internal market; - Etc. 3.

…of the transit regime and the control of goods in transit at borders and within the internal market; - Etc. 3. Need for stronger cooperation and better data sharing between various stakeholders An effective fight against the counterfeiting scourge is conditional to an extensive sharing of data and close cooperation between all the stakeholders involved. Indeed, as customs authorities, right holders, or any other third-party intermediary (shippers, postal services, etc.), these latter all have important information that, put together, could ease the identification of big counterfeit networks, new counterfeiting trends, developing practices used by counterfeiters, etc.

…of big counterfeit networks, new counterfeiting trends, developing practices used by counterfeiters, etc. That is why, UNIFAB and its members believe that the revision of the EU customs code should put the emphasis on the development of a unique tool / portal to ease the sharing of such important data between: (i) EU national customs themselves; (ii) EU customs and right holders; (iii) EU customs and third-party intermediaries. Indeed, to date, there is an important lack of information sharing, that could on top of that be easily accessible through a dedicated tool where all the above-mentioned stakeholders could build up databases of information and clues about counterfeiting cases, which, moreover, increasingly have an international and cross-border dimension, involving dangerous professional and organized networks.

…increasingly have an international and cross-border dimension, involving dangerous professional and organized networks. 4 EU Transparency Register: 527831213232-14 Last but not least, it is important to highlight the huge efforts made by the EUIPO Observatory to create a tool that could answer those specific needs: the IP enforcement portal (IPEP). Such portal is a unique opportunity that should be further developed and must be used by all EU customs.

13 → 12

originalus šaltinis (PDF) ↗

UNIFAB CONTRIBUTION TO DATA PROTECTION – REPORT ON THE GENERAL DATA PROTECTION REGULATION UNIFAB is very thankful for the opportunity given to comment on General Data Protection Regulation, hoping they will be taken into account by the stakeholders and working groups. UNIFAB is the French association for promotion and protection of intellectual property (IP), as well as fight against counterfeiting. Today, UNIFAB includes more than 200 French and International companies and professional federations; it serves as unique guardian of IP rights (IPRs) of its members, and a platform for discussions on this topic. We kindly invite you to find below our comments on the report on the GDPR: Keep up the good work: UNIFAB really wants to thank the Commission, European Data Protection Board, Parliament and Council for their good work done since April 2016.

…thank the Commission, European Data Protection Board, Parliament and Council for their good work done since April 2016. Fighting for data protection and its consideration as a fundamental right in the EU is a big work that is today essential if we want to ensure citizens and consumers’ protection. Nevertheless, a number of elements need to be brought to your attention in this process, especially regarding the impact of data protection and its consequences on the protection of intellectual property rights. We need to find common answers that will, in the future, allow for the strict application of GDPR while protecting these other fundamental rights.

…that will, in the future, allow for the strict application of GDPR while protecting these other fundamental rights. GDPR application should not provide cover for illicit and counterfeiting activities: Even though data protection is seen as a fundamental right with the application of the GDPR, we want the working groups to take into account the fact that an excessive and subverted application of this protection has resulted in repercussions which run counter to its initial objectives and goals. Indeed, we would like to highlight the problematic loss of access to publicly accessible WHOIS data since the application of the Regulation.

…to highlight the problematic loss of access to publicly accessible WHOIS data since the application of the Regulation. As you may be aware, since the GDPR came into force, private companies providing the infrastructure for domain names have been allowed to make elective decisions about access to domain name registrant data, a phenomenon which has in effect blocked the transparency of WHOIS has allowed bad actors to proliferate online. Ref. Ares(2020)2261195 - 28/04/2020 This situation is compounded by the fact that most of these actors prefer not to make a distinction between data pertaining to natural or legal persons, making the data pertaining to commercial domain name registrants just as inaccessible as that of private individuals: both of the types of data should be considered as pertaining to public interest.

…as that of private individuals: both of the types of data should be considered as pertaining to public interest. As defenders of IPR, certain WHOIS information we previously had access to was a key element allowing us to identify, contact or take legal action against registrants of domains names dedicated to the sale and promotion of counterfeit goods. Indeed, WHOIS was a critical tool used by a number of organizations to fight against countless illegal online activities, including fraud and the proliferation of illegal content worldwide. In our increasingly connected society, we should definitely consider the offline world components as equivalent to the online world ones. It is a matter of Transparency and Trust. Moreover, protection of the consumer is essential in the online world where the source of the products can easily be concealed.

…protection of the consumer is essential in the online world where the source of the products can easily be concealed. Therefore, reinstating real time access to WHOIS data would also be beneficial to consumers, enabling them to check the trustworthiness of a website in a more reliable way than looking at the website content. Of course, it would be even more useful if the data including in the WHOIS were verified, as per Article 5(1)(d) of the GDPR. That is why we call for more guidance on the application of the principles of the GDPR to situations like these where other fundamental rights are at stake.

…on the application of the principles of the GDPR to situations like these where other fundamental rights are at stake. Indeed, we would urge European authorities to be very careful about certain types of persons that take advantage of certain principles of data protection in order to develop illicit or threatening activities, especially online, as well as the critical consequences of private companies over- implementing the Regulation to avoid any fines. Most of the Regulation’s Articles are following this idea, but to go even further, we would appreciate clarity regarding the fact that the establishment, exercise or defense of a legal claim is expressly permitted within Article 6 as well.

…the fact that the establishment, exercise or defense of a legal claim is expressly permitted within Article 6 as well. Cooperation is key: More than ever, great collaboration, cooperation and respect of the GDPR is needed between member states as well as European individuals, businesses, law enforcement authorities but also with non-EU countries. We ask the GDPR working groups to take chapters 5 – Transfers of personal data to third countries or international organizations; and 7 – Cooperation and consistency, into strong account.

…data to third countries or international organizations; and 7 – Cooperation and consistency, into strong account. Nevertheless, these articles should be developed and rethought in light of our previous comments regarding legal persons in order to allow full respect of certain principles, such as: article 44, Chapter 5 GDPR stating that: “All provisions […] shall be applied in order to ensure that the level of protection of natural persons guaranteed by this Regulation is not undermined.”

originalus šaltinis (PDF) ↗

…1 Unifab Transparency register number. 527831213232-14 UNIFAB CONTRIBUTION REVISION OF THE UNION CUSTOMS CODE November 6th, 2023 UNIFAB PRESENTATION Unifab (Union des Fabricants) is the French association for the promotion and defense of intellectual property (IP) rights. Founded in 1872 by a group of pharmacists, it is now composed of approximatively 200 member companies and professional federations1 – from all sizes and all sectors of activity – thus representing an annual turnover of 1450 billion euros. After more than 150 years of fighting against counterfeiting in the most effective way, Unifab has organized itself around 4 principle missions:

…of fighting against counterfeiting in the most effective way, Unifab has organized itself around 4 principle missions: 1. Communication and awareness raising amongst the general public: this is made possible thanks to the creation of anti-counterfeiting2 awareness campaigns, organizing the annual European Forum for IP, or even animating the Museum of Counterfeiting in Paris, etc.; 2. Training of public authorities: each year, Unifab organizes around 50 sessions aiming at training about 1000 French law enforcement agents (from Customs, French Police, French Gendarmerie, Fraud repression services, etc.) on counterfeiting, by giving them the tools and tips to recognize genuine products from counterfeiting ones;

…etc.) on counterfeiting, by giving them the tools and tips to recognize genuine products from counterfeiting ones; 3. Discussions and sharing of expertise with institutional representatives in France, Europe and internationally: Unifab intervenes in different political and legislative spheres in order to make sure the discussed draft laws and regulations are in favor of a better protection of IP rights; 4. Dialogues with digital players: as Internet has become one of the main distribution channels for counterfeit goods, it is important for Unifab to maintain good collaboration and dialogues with major internet players (online marketplaces, social media platforms, etc.) in order to make sure efficient measures are put in place to avoid IP infringements.

…social media platforms, etc.) in order to make sure efficient measures are put in place to avoid IP infringements. INTRODUCTORY FIGURES Unifab is really concerned about counterfeiting, especially when noting that France is one of the most- affected country in the World3. According to an OECD-EUIPO study, « Trade in counterfeit and pirated goods amounted to up to 2.5 % of world trade in 2019; when considering only imports into the EU, fake 1 UNIFAB, The members, https://www.unifab.com/en/the-members/ 2 UNIFAB, 2023 consumer awareness campaign, https://www.unifab.com/operation-de-sensibilisation-des-consommateurs- 2/ 3 OECD-EUIPO, Trends in trade in counterfeit and pirated goods, 2019 https://www.oecd-ilibrary.org/docserver/g2g9f533- en.pdf?expires=1698158085&id=id&accname=guest&checksum=A4827812E29CD294E22690114392998E Ref.

…ary.org/docserver/g2g9f533- en.pdf?expires=1698158085&id=id&accname=guest&checksum=A4827812E29CD294E22690114392998E Ref. Ares(2023)7525984 - 06/11/2023 2 Unifab Transparency register number. 527831213232-14 goods amounted to up to 5.8 % of imports. […] [I]llicit trade in fakes remains a serious risk to modern, open and globalised economies. »4 In France more specifically, the customs action in the fight against counterfeits is crucial, and Unifab’s missions testify of the importance of the association’s members working closely with these authorities, who are the eyes and ears of IP rights holders on the ground.

…members working closely with these authorities, who are the eyes and ears of IP rights holders on the ground. Thus, in 2022, French customs seized more than 11.53 million counterfeit items, including 5.8 million games and toys; 780,000 personal care products; 480,000 items of clothing and accessories; 380,000 drinks and foodstuffs; etc.5 As the French association for the promotion and protection of intellectual property rights, representing a large number of right holders, Unifab puts a lot of efforts in making sure cooperation and collaboration between its members and European law enforcement authorities is as most effective as possible. Indeed, ensuring the best sharing of information between all those stakeholders, and giving all possible means to these latter to combat counterfeits is key to reducing this scourge within EU’s internal market.

…possible means to these latter to combat counterfeits is key to reducing this scourge within EU’s internal market. Source: Customs Annual Review 2022, French Customs Administration (DGDDI) REMINDER OF UNIFAB POSITION – PUBLIC CONSULTATION (September 2022) Back in September 2022, Unifab did contribute to the DG TAXUD’s open public consultation regarding the proposed revision of the Union Customs Code, planned for the following year. Here after are the main topics of interest highlighted by Unifab and its members back then:

…for the following year. Here after are the main topics of interest highlighted by Unifab and its members back then: 1. The European Commission shall make sure that the fight against counterfeiting and the promotion of intellectual property rights is a priority for all EU customs authorities, noting that 4 OECD-EUIPO, Global trade in Fakes, 2021, https://euipo.europa.eu/tunnel- web/secure/webdav/guest/document_library/observatory/documents/reports/2021_EUIPO_OECD_Report_Fakes/2021_EU IPO_OECD_Trate_Fakes_Study_FullR_en.pdf 5 DGDDI, Bilan annuel de la Douane 2022, https://www.douane.gouv.fr/sites/default/files/2023-02/22/bilan-annuel-de-la- douane-2022.pdf 3 Unifab Transparency register number. 527831213232-14 “counterfeiting” did not find a place of priority in the call for evidence document on which the consultation was based, despite official alarming IP infringements figures;

…the call for evidence document on which the consultation was based, despite official alarming IP infringements figures; 2. The EU customs practices shall be better harmonized within all EU Member States. Indeed, even though the EU Customs Code regulation, as well as other EU legislations dealing with customs practices (i.e. regulation 608/2013) are positive common grounds defining clear procedures and action plans for an effective protection of intellectual property rights, these latter lack harmonization between all Member States, and sometimes between regions within a single Member State. 3. There is a need for stronger cooperation and better data sharing between various stakeholders: EU national customs themselves, EU customs and right holders, EU customs and third-party intermediaries, etc.

…national customs themselves, EU customs and right holders, EU customs and third-party intermediaries, etc. 4. There is an urgent need to adapt to counterfeiters’ developing practices. We asked the European Commission to invest in all possible means to increase EU customs resources (human, financial, technical) to be able to provide an effective response to these malicious actors. UNIFAB POSITION – EUROPEAN COMMISSION’S PROPOSAL (November 2023) On May 17th 2023, the European Commission published its « Proposal for regulation of the European Parliament and of the Council establishing the Union Customs Code and the European Union Customs Authority, and repealing Regulation (EU) n°952/2013 ». Please find here below Unifab’s comments on the latter: 1.

…and repealing Regulation (EU) n°952/2013 ». Please find here below Unifab’s comments on the latter: 1. Introductory findings and comments on recitals Unifab does agree with the European Commission’s initial findings, which reflects the points made above in this position paper, where the EU ecosystem is now forced to adapt to a fast-changing economy, both ecologically and digitally. It is also highlighted that « Customs authorities are increasingly burdened with an ever-growing range of tasks stemming from the above mentioned very ambitious legislation that has been adopted in the last years. »6 Also, in the call for evidence summary – which focuses on 5 problematic areas justifying the Union Customs Code revision – there are some negative repercussions already encountered that are alarming Unifab members, i.e.

Code revision – there are some negative repercussions already encountered that are alarming Unifab members, i.e. « dangerous, noncompliant or counterfeit products [that] still enter or exit the EU single market [or] illegal goods [that] are smuggled into the EU »7. While the EU Customs code is a central piece of legislation aiming at controlling what enters and leaves the European territory, some additional national legislations exist and are crucial to provide European customs officers with a complete and efficient toolbox to monitoring and control all types of goods.

36 → 12

originalus šaltinis (PDF) ↗