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Thursday, 31 December 2015

Looking back over this GreeKat shoulder… the last bit: “In transit” to 2016


The EU trade mark reform package (for press release see here  and for the legislative texts see here, for the Directive, and here, for the EU TM Regulation) was probably the main course in this year’s IP Christmas table (though Santa’s General Counsel resignation might have just made all other topics of discussion vanish).
No worries! I'll be back in EU soil in a flash
 


The new set-up of rules may, amongst other positive effects, help to end EU’s days as, in Nokia’s words, “a logistical hub” for counterfeiters. The IPKat has posted on the issue, including, notably, here and here. The, rather over-technical and certainly awkward situation, of the “immunity” of counterfeit goods transiting through the EU, only to return to it, has always been hard for this blogger to understand. Moreover, as anti-counterfeiting practicioners around Europe have come to know too well, the transit immunity became useful, if not central, to counterfeiting strategies to bring illicit goods in to the EU.  As the EU seems to be hopefully closing this chapter, this blogger can “brag” as Greece had introduced a relevant provision in its TM law system as from 2012, exactly in recognition of the problem.

But how about controlling supply chains of genuine products? Nowadays, across industries, consumers’ needs go beyond the ability to verify product authenticity; consumers demand to know where the product was manufactured and whether it’s safe to use. Be it for reasons of reducing carbon footprint, quality, or purely health-related. A noteworthy example is heightened scrutiny over India-manufactured drugs in the recent media reports, e.g., here.

Trade mark owners are also naturally interested to see their products sold by legitimate supply chain operators, in the markets they were originally destined for. One self -evident reason is the nightmare of potential regulatory non-compliance of products sold in a market other than the one they were destined for (different requirements for voltage in the case of electronic products, veterinary clearance of meat products, or health warnings in the case of cigarettes). Another aspect – clearly visible in the case of luxury goods – concerns limitations on sale per person to (a) maintain the products’ exclusivity (and desirability), and (b) ensure that distribution of profits among their regional operations is in line with local demand (and prices). The technical means are available to deploy effective supply chain controls, although a vigorous sales data record keeping has also gone a long way for luxury brands and, on top, can be linked with giving clients the desired sense of exclusivity and personalization of service. In this respect, supply chain control is not a regulatory initiative linked with public goals, but rather a private, self-regulatory, measure aiming primarily at brand protection.

At the forefront of the regulatory controls is the pharma industry with the recently notified draft Commission Delegated Regulation (see here) to the Falsified Medicines Directive (2011/62/EU).  Tobacco industry is not far behind with the revised Tobacco Products Directive (2014/40/EU). Not least, explosives for civil use, while not as widely used as medicines or cigarettes [or so this blogger thinks], are also being tracked and traced. A task force was created under the auspices of the European Commission to ensure that what the Directive (2008/43/EC) prescribes is feasible and implemented (see here). Wondering whether this will come to mind while gazing New Year celebrations’ fireworks in the Athenian sky tonight! Probably not, but the sight is always nice.

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