The ruling can be found here: http://curia.europa.eu/juris/document/document.jsf?text=&docid=115783&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=6211.

-          A guide on what action a business should take if it comes across counterfeit goods in the supply chain.

-          A guide on how businesses can protect their own intellectual property rights against infringement and counterfeiters.

-          Examples of good practice by businesses within the supply chain.

The toolkit is available here.

The draft ACTA document that had been published by the European Commission can be found here: http://trade.ec.europa.eu/doclib/docs/2011/may/tradoc_147937.pdf.

The guide also highlights that such actions can impact on the productivity and profitability of an employee to the business, whilst also risking legal action being taken against the business itself. Examples of infringing activity include an employee using work systems to sell goods both within the business and outside of the business, and even simply selling actual counterfeit goods from behind their desk.

The website is effectively a search engine which will list approved retailers for a particular brand. TSI have been keen to point out that the website is not a one-stop-shop, as some legitimate retailers may not be on the list. However, the website is likely to help divert consumers away from rogue retailers in an attempt to bring down the number of counterfeit goods on the market – 5 million counterfeit items were seized by the UK Border Agency in 2010.

• Continued push for a single European Union patent system.
• Modernisation of the European Community Trade Mark system. This would include speeding up the registration procedure and increasing certainty over what constitutes a registrable trade mark.
• Creating a comprehensive framework for copyright in the digital single market. That would include multi-territorial collective management of copyright so that there would be online copyright licensing. There would also be a consultation on user-generated content to see if there should be more freedom for amateur producers of non-commercial film to be exempt when incorporating other copyright works. In addition, the Commission said it would propose a Directive on permitted uses of orphan works, and it actually proposed the Directive this at the same time as the strategy document.
• Replacement of the Customs Regulation to strengthen enforcement of intellectual property rights. As with the orphan works proposal, this was also introduced at the same time as the publication of the strategy.

For more on the strategy, click here: http://ec.europa.eu/commission_2010-2014/barnier/headlines/news/2011/05/20110524_en.htm.

• The rights and procedures regarding seizing infringing material would extend from the current position which catches goods infringing patents, trade marks, copyright or design rights. It would also cover trade names and semiconductor topographies.
• Parallel imported goods contrary to European Union law would also be seized.
• A new quicker procedure would be established to enable customs authorities to deal with goods abandoned by their owner for destruction without having to go through formal legal proceedings if the owner does not object within a short period of time.
• Have a new procedure whereby rights owners do not need to be involved with the destruction of small consignments.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: “We are no doubt going to see ever more attempts by counterfeit suppliers to make illegal money off the back of the Olympics. At the same time, there is going to be ever increased attempts by official Olympic organisers to stop this. There should be plenty more high profile cases in the next year and a half.”

The domain names in question are no longer accessible, and users are instead diverted to a webpage detailing that the domain name had been taken over by the government and listing the United States laws on copyright and counterfeit goods. It is believed that many of the websites are attempting to continue trading by moving to new domain names.

As Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, told Intellectual Property Magazine: ‘The purpose behind trade mark law is to protect consumers and provide them with guarantees of origin so they know there is a certain quality attached to the branded product. The Government needs to consider whether the origins of tobacco brands are worth protecting? The Government may think not for products that are considered to harm the public’s health. However, if the number of counterfeit products increases, could this actually make the products less safe? Is it a case of better the devil you know, and at least work with suppliers that at least agree to do business legitimately?’

The Intellectual Property Minister says that the consequences of fake goods are more significant than damage to brands – goods can be dangerous. This month, a teenager was badly burnt after he was electrocuted from hair straighteners that had seemed genuine.

This case contrasts with different results in a similar recent case brought against eBay in France by Louis Vuitton. That case is reported here: http://www.mablaw.com/2009/12/ebay-louis-vuitton/. eBay has also had mixed success in other cases brought against it around Europe by the luxury brands. In a case brought by L’Oréal last year in the High Court, eBay was able to show that it was not responsible for counterfeit products sold by its users; but the Court went on to refer questions to the European Court of Justice to rule on whether use of L’Oréal’s brand in sponsored links to direct users to listings for infringing goods on its site constituted trade mark infringement and, if so, whether eBay had a defence under the E-Commerce Directive for acting as a mere host without actual knowledge of the infringing activity. We await that decision from the European Court.

The purpose of Acta is to protect intellectual property rights in software, music, video and pharmaceutical products against unlawful copying. Hustinx would like to ensure that the negotiating parties consider the balance between protecting intellectual property rights and data protection and privacy rights, rather than data protection and privacy issues being considered at the end. Hustinx particularly wants safeguards to apply to all data transferred out of Europe to countries that do not provide strong enough protection on data protection issues. Hustinx would like to see a public and transparent dialogue on Acta.