One of the key issues in protecting the intellectual property rights is dealing with counterfeit goods that flood the market in the European Union, including Poland. Today, in the era of digital communications and sales, this combat seems to be even more difficult - both as regards the verification of goods and the struggle against infringers.
Just a glance at the most popular Polish auction portals or a simple walk through a city marketplace would be enough to see that such goods are certainly available on the market.
Why are counterfeit goods still on the market?
It seems natural, therefore, to ask the following questions: do the owners of rights not have any tools to fight counterfeiting? Do they not try to do so? Or does the law not provide them with such possibilities?
Based on our practice and conversations with law enforcement authorities - the Police and Customs - we know that the reasons cover several factors. For example, there is a noticeable quality spike of counterfeit goods - consumers may therefore sometimes be unaware that the goods they are buying are counterfeit ones. Or they may consciously assume that an item is cheaper and the same as the original or similar in quality. In fact, the result is the same. Also, there are many goods of this type on the market, so it is important for the law enforcement authorities, who must initially verify whether the goods may be counterfeit and whether they should be stopped, to have adequate and up-to-date knowledge considering genuine and counterfeit goods. Finally, what is important is the very conduct of the right holders and the actions they take to combat this type of infringements.
How can trademark holders protect their rights?
What should I do if someone is counterfeiting my goods? What steps can I take? For starters, you should know that it is likely to be possible to take actions under both Polish and EU law.
Legal actions under EU law
Under EU law - within the procedures of Regulation (EU) No 608/2013 of the European Parliament and of the Council of 12 June 2013 on the customs enforcement of IPRs - right-holders can obtain the so-called Customs Protection. With it, a holder of, for example, trademarks - but also other IPRs, like copyrights - can file for action, in which the holder indicates which of their rights are protected and on what grounds granted. More importantly, the right holder has the possibility to provide customs officers with relevant data - such as the national distributors of the goods or the pattern of the security codes - which make it possible to determine whether the goods are genuine or not. Or, at the very least, this information would give the customs officer a ground to suspect an infringement, which would result in the detention of the goods and a call to the legal representative of the right holder. The right holder then has the option of verifying the goods and further settling the destruction of the goods (and settling other legal issues, such as obtaining damages) or initiating criminal proceedings against the infringer.
Legal actions under Polish law
As mentioned above, the possibilities of taking actions are also provided by Polish law. Even a trademark owner whose counterfeit goods are entering or have already entered the market can effectively combat infringements. So, if products marked with such counterfeit trademarks are seized, the holder may file a motion for prosecution, which allows for destruction of the goods and penalisation of the perpetrator - also by obtaining a compensation in the form of damages.
Counterfeit goods – a threat to consumers and businesses
The above, very brief description only outlines a mechanism that allows to stop counterfeit goods reaching the market and provides greater security for the consumers, for whom verifying the legality of a given product will be increasingly more difficult due to extensive knowledge of the counterfeiters and their skilful handling of trends.
If your rights as an IPR holder are being infringed, you should know that there is a system in place that enables you to protect your rights and to counteract infringements and infringers. Should your rights be infringed and you wish to counteract this, please let us know about the case and your needs and we will make every effort to ensure that your rights and interests receive the best possible protection.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
