Building a “Fortress Europe” in the air: A critical review of the European customs enforcement of IPRs

• Date: 01 November 2019
• Published date: 01 November 2019
• Author: Marion Briatta
• DOI: http://doi.org/10.1111/jwip.12132

J World Intellect Prop. 2019;22:289–299. wileyonlinelibrary.com/journal/jwip © 2019 John Wiley & Sons Ltd

|

289

DOI: 10.1111/jwip.12132

NOTE

Building a “Fortress Europe”in the air: A critical

review of the European customs enforcement

of IPRs

Marion Briatta

PhD Program, Sciences Po Law School, Paris,

France

Correspondence

Marion Briatta, Sciences Po Law School, 13

rue de l’université, 75007 Paris, France.

Email: marion.briatta@sciencespo.fr

Abstract

For several decades now, the European Union (EU) has been

promoting the strengthening of enforcement measures of

intellectual property rights (IPRs). The reinforcement

of border measures aimed at blocking the importation of

infringing goods has been under particular scrutiny in this

respect. Since the adoption of the Trade‐Related Aspects of

Intellectual Property Rights agreement, the EU has adopted

numerous customs regulations specifically designed to

curtail the flow of counterfeits entering the European

market. In this paper, we argue this regulatory inflation is

problematic considering the ambiguous construction of

European border measures against counterfeiting. We

suggest that EU law has imperfectly transplanted the

American customs regulation reformed in the 70s which

has allowed customs authorities to seize imported goods

which were infringing IPRs in the United States. To fulfill

their new mission, American customs was granted with the

ability to assess such infringement at the border. Although

required to fulfill the same mission, European member

states’customs authorities have not been granted with such

a quasijudicial competence. As a result, the action of

European customs authorities regarding infringing goods is

based on an ambiguous “conditional prohibition”which can

easily lead to abuses as the international dispute regarding

in‐transit generic medicines has shown.