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Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.

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Anthonia Ghalamkarizadeh
Birgit Clark
Blog Administrator
Christian Tenkhoff
Fidel Porcuna
Gino Van Roeyen
Markku Tuominen
Niamh Hall
Nikos Prentoulis
Stefan Schröter
Tomasz Rychlicki
Yvonne Onomor
Greece: Hasty anti-counterfeiting reform may not do the trick
Only a few days ago, the Greek Parliament adopted a new law (not yet published in the Official Gazette), which in addition to 'fine tuning' provisions of the (still very) young new Greek TM registration system, also amends the existing framework on the control of outdoor trade. Based on a quick (hasty if you will) review of the text apparently adopted, it seems that bureaucracy stands in the way of effective reform. The new law replaces art. 11 of Law No. 3377/2005 on the control of outdoor trade, which had established the possibility of a "quick and dirty" destruction procedure in case of outdoor trade and warehouse counterfeits. This simplified procedure indeed brought up results and brand owners have been pressuring the Greek government for further improvement, in the light of the practical experience accumulated in the course of application of the law.

The new law allows for the on-spot immediate destruction of counterfeit items, a significant development indeed. It also clarifies that customs authorities have the power to seize counterfeit goods, even in case such goods are found outside the customs area, including in shops, warehouse, outdoor trade or in transport (outside the customs area).

On the other hand, when, in warehouse and generally housed establishement raids, the owner or person in possession of the goods found objects to their destruction, a procedure for the exchange of memorandums between the alleged infringer and the brand owner commences, with authorities only acting as a postal service. If the alleged infringer is  'convinced' by the brand owners memo/opinion, the goods are destroyed (at the brand owner's expense). If however, he still objects, then the brand owenr is obliged to initiate legal proceedings and notify the authorities for the seizure to remain in force (more or less like the procedure before customs). Seized goods remain under the care of the alleged infringer.   

Overall, the new law may be quite useful (as was the previous regime) in case of abandoned counterfeits or when the person in possession of the goods 'admits defeat' from the outset. Moreover, the brand owner is not in any way prohibited from instituting legal proceedings at anytime during the procedure described above.

On the other hand, there appears to be an error in the system engineering, operating to the burden of the brand owner, when the infringer wants to stretch the dispute. The brand owner should provide a memo/opinion on whether the products are counterfeit, the purpose of which is not to convince the authorities to go ahead with the destruction but to address the objections of the infringer. Thus, the competent law enforcement authorities become 'spectators'. Under this prsim, one would have hoped that the new law would arm enforcement authorities with the ability (yes, and responsibility) to rule on the alleged infringer's objections. This is not really an uncommon competence for administrative bodies is it? Fines and decisions influencing the fincnacial status of citizens are taken every day and the latter have the ability to seek compensation in case of wrong-doing. The essence of legislatively intervening in the particular realm of anti-counterfeitng is that, by experience, it is understood that, in the significant percentage of cases, goods are counterfeit. So the scale of the procedure must tilt decisively in favour of the aggrieved party (not the infringer). I am not entirely sure whether giving with one hand and taking back with the other is decisive enough. Application of the new law will hopefully prove my concerns wrong.    

Posted by: Nikos Prentoulis @ 12.14
Tags: Greece, trademarks, law, reform, new law, fakes, counterfeits, seizure, destruction, outdoor trade, warehouses, enforcement, police, customs,
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MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.

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