SUMMARY:

• The European Commission has finally published the final report on its "Follow-up study on the application of the Directive on the Enforcement of Intellectual Property Rights » (IPRED). Download below.
• The study follows a previous evaluation carried out in 2017, and focused this time on 5 key areas of IPRED, including the costs for destruction of IP infringing goods.
• The study was carried out by external consultants from EY and Technopolis Group in 2024, and includes the results of various online consultations, targeted interviews and validation workshop, in which FESI actively participated.
• Some comments from FESI, such as the lack of harmonisation across MS in storage and destruction procedures, have been reflected in the study (see below for more information).
• Although it is not directly addressed in the study, he Commission has decided not to reopen IPRED for the moment. A full assessment of the Directive is planned for 2027.

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MORE INFORMATION:

The current study examines how key IPRED provisions are applied across the EU, focusing on five priority areas: proportionality, patent assertion entities, dynamic blocking injunctions, information sharing and data protection, and costs for destroying infringing goods in the single market.

Key findings (focus on storage & destruction):

• Most RH are reluctant to recover destruction costs despite legal framework provided by IPRED because of the lengthy and costly legal procedures.
• Lack of harmonisation across MS in storage and destruction procedures createsunpredictability for rights holders (also highlighted by FESI in our contributions).‍
• High storage and destruction costs in some MS make enforcement expensive, particularly for SMEs (also highlighted by FESI).‍
• Delays in decision making regarding the disposal of IP infringing goods further increase storage costs, increasing the financial burden on rights holders (also highlighted by FESI).‍
• Need for standardised customs procedures across MS to enhance transparency and reduce uncertainty (also highlighted by FESI).‍
• The study highlights the potential benefits of introducing new technologies to track counterfeit products, such as electronic fingerprinting and blockchain tracking.
• Difficulties to obtain information from customs authorities concerning the identity of the infringer were indicated as a main impediment to seeking civil redress based on IPRED.
• Criminal enforcement is often preferred due to flexibility and effectiveness. Regarding the storage and disposal of seized IP-infringing goods, the police was indicated as more open to seek cost-effective solutions. Also easier to collect evidence with police seizures.
• Greater involvement of Europol and Eurojust suggested to improve cross-border enforcement effectiveness.
• Default approach in most MS is destruction. Rights holders oppose the idea of re-use due to concerns over quality, health and safety risks, and potential weakening of the brand. Recycling is rarely used due to high costs associated with testing, dismantling and sorting materials.
  
  • Spain allows donation for humanitarian purposes.
  • Dubai Customs cited as an example for integrated testing before recycling.
  • Different interviewees cited the REACT network and its ‘Sustain’ programme as a good practice for the effective management and recycling of seized counterfeit goods.

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The key recommendations include a need for clearer, harmonised procedures and greater involvement of rights holders in decision-making regarding the handling of IP infringing goods, as well as improving transparency on costs structures, aligned with FESI’s asks, and exploring sustainable disposal options.

See here for more information: https://op.europa.eu/en/publication-detail/-/publication/46428195-fb34-11f0-8da5-01aa75ed71a1

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