CUSTOMS MEASURES TO DEAL WITH INTELLECTUAL PROPERTY RIGHTS FRAUD

Intellectual Property Rights (IPR) are important profit generating business assets which are understandably protected with great determination and vigilance by the owners of these rights and their representatives, whether they are manufacturers, distributors or agents. Very often a substantial investment has been made in developing and marketing a new product and a company is justified in expecting to reap the benefits of such an enterprise.

On the other hand Intellectual Property Rights Fraud is a criminal activity which involves the infringement or theft of a company's or an individual's intellectual property rights. The exploitation of these rights victimises the consumer by offering poor quality products to the detriment of manufacturers of the genuine article. Besides the very real financial to these manufacturers, holders of related rights and their employees, one may add the potential risk that IPR fraud may be linked with other, even more serious, criminal activities.

The Customs Department is one of the organisations best placed to prevent the entry of fraudulent goods into Malta and consequently has readily accepted the challenge, not only to strengthen and update its own powers but also to provide the right holders with the means to safeguard their interests. At the same time the right holders have to understand that Customs must balance IPR enforcement with other responsibilities, such as the non-interference with genuine trade.

The recently enacted Intellectual Property Rights (Cross-Border Measures) Act was drafted with all these criteria in mind and was prepared with the provisions of the World Trade Organisation's Agreement on "Trade Related Aspects of Intellectual Property Rights", known in short as the TRIPS Agreement, serving as a model. This concept of combating counterfeit and pirated goods has the backing of the World Intellectual Property Organisation (WIPO) and is being implemented by Customs Organisations all over the world.

This new law furnishes right holders with the opportunity to apply to the Customs Department to take action when goods infringing Intellectual Property Rights are withheld by Customs during the inspection of a consignment, at time of importation. Provision has also been made for a right holder to anticipate the time of importation of such goods by submitting an application wherein the Customs Department may be informed of an intended importation of counterfeit or pirated goods and furnish the necessary particulars so that Customs will be in a position to identify, intercept and withhold the goods in question. An informative booklet on this subject has in fact been prepared by the Customs Department and is available to the public upon request.

The machinery for fighting Intellectual Property Rights Fraud is therefore now available to all those right holders sufficiently interested in protecting their interests. It now remains to be seen just how effectively this law can be implemented and enforced in order to achieve the aims and objectives which led to the enactment of this legislation.

It is obvious that the Customs Department and the Business Community have a convergence of interests in this matter and consequently have a substantial stake in the success of this IPR legislation and it is therefore imperative that both entities co-operate with each other. The importance of effective, responsible communication cannot be overly stressed and one may conclude that in the long run the success of this venture will ultimately depend on the accurate and genuine information which is made mutually available.