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Regional Seminar on Enforcement of Intellectual Property Rights

Co-Hosted by EUIPO and ASAE

Lisbon

24-26 May 2016

List of participants

Representatives from public sector bodiesDistrict Attorney's Office, Osijek Croatia

Niki Vrioni Customs CyprusAndreas Andreou Police CyprusMarios Aristidou Police CyprusEliane Unternaehrer Customs FranceChristelle Tondeur Customs FranceCaroline Mackaie OCLAESP FranceEleni Bazianou Customs GreeceEvangelia Chatzimanolaki

Customs Greece

Maria Tsantiraki Police GreeceCharikleia Thanou Prosecutors Office, Peiraias GreeceVincenzo Tuzi Guardia di Finanza ItalyRoberta Simeone Prosecutor Office, Naples ItalyGeorge Agius Customs MaltaMarcette Ellul Customs MaltaRandolph Mizzi Customs MaltaDoriette Cuschieri Police MaltaJudite Couto Customs PortugalAlcinda Santos Customs PortugalPedro Lopes Customs PortugalDaniel Gomes Guarda Nacional Republicana (GNR) PortugalJosé Leitão Police PortugalRui Fernandes Police PortugalSilvia Lourenço Portuguese Institute of Industrial Property (INPI) PortugalAna Bandeira Portuguese Institute of Industrial Property (INPI) PortugalJoana Bilro Portuguese Institute of Industrial Property (INPI) PortugalJosé Maria Mauricio Portuguese Institute of Industrial Property (INPI) Portugal

Paulo MachadoRegional Inspection of Economic Activities (IRAE), Azores

Portugal

Rogério GouveiaRegional Inspection of Economic Activities (IRAE), Madeira

Portugal

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Jože Peterka Police SloveniaPolice Slovenia

Pedro Alvarez Customs SpainRoberto Campos Police SpainMónica Dopico Police Spain

Representatives from private sector

Dorothée Serzedelo L'OréalJosé Monteiro L'OréalPaulo Pereira ReactCristina Bráz União de MarcasIlda Isabel Botto Unilever Jerónimo Martins

Representatives from international organisationsRoberto Manriquez INTERPOLSandra Wens World Customs Organization (WCO)

Representatives from EU bodiesLuis Lemos EurojustGiorgio Sincovich EUROPOL

Representatives from ASAE (Portuguese Economic and Food Safety Authority)Pedro GasparAna Cristina CaldeiraAna Rita CarvalheiroDomingos AntunesRafael MarquesMaria DiogoAna MouraAna OliveiraVítor Serra

Representatives from EUIPO (European Union Intellectual Property Office)

António CampinosValerio PapajorgjiEric GastinelErling VestergaardStephanie Rowland

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Opening of the Seminar and Welcome Speeches

The Inspector General of ASAE (the Portuguese Economic and Food Safety Authority) gave a warm welcome to all participants and special welcome to the Executive Director of EUIPO. He underlined the importance of interagency cooperation in the context of wide scale trade in counterfeit goods within the European Union.

He highlighted the need to share best practice, policy and experience, in order to reinforce mutual understanding in the field of IPR enforcement. He explained that ASAE focuses on criminal enforcement investigation, based on risk assessment, communication and laboratory work. He thanked the private sector representatives for their participation at the three-day event and reiterated the sentiments of the Executive Director of the EUIPO, to discuss pragmatic steps towards collaborative working, best practices and lessons learned, and to harness the range of expertise present at the seminar.

The Executive Directive of the EUIPO warmly welcomed all participants to the EUIPO’s sixth European regional seminar on the enforcement of intellectual property rights (IPR), held in Lisbon and co-hosted with ASAE. The event formed an integral part of the EUIPO´s seminar network, which currently enables over 800 law enforcement experts from police, Customs, prosecution, and the judiciary to consolidate relationships and build on the best practices discussed. Private sector representatives were welcomed alongside representatives from the World Customs Organization (WCO), Eurojust, Europol and Interpol.

The Executive Director emphasised counterfeiting’s detrimental effects on EU business, in addition to the dangers posed to consumers of all ages by organised criminal groups (OCGs) who enjoy significant financial returns made through IPR crime. The recent study1 carried out by OECD and EUIPO and based on 2013 data offers significant figures to policy makers, that the international trade in pirated and counterfeit goods represents 2.5% of all world trade. The impact of criminal activities on public safety, on European innovation, employment, economic growth and loss in tax revenue are also highlighted.

The European Observatory on Infringements of Intellectual Property Rights (the Observatory) sectorial studies series - which aim to quantify the economic effects of counterfeit and pirated goods – reveal that they cost the European Union EUR 60billion per year in lost market share: the music industry loses EUR 170 million each year – or 2.5% of all sales - due to piracy. The joint Europol-EUIPO “2015 Situation Report on Counterfeiting in European Union” was based on law enforcement agency (LEA) data and gave an accurate snapshot of OCG illegal trade in counterfeit goods -

1 “Trade in Counterfeit and Pirated Goods: Mapping the Economic Impact” is based on data supplied by the World Customs Organization, the European Commission's Taxation and Customs Union Directorate General (DG TAXUD) and the United States Customs and Border Protection, to give an accurate picture of the global economic impact of counterfeiting and goods piracy in international trade. This joint study uses data from almost half a million customs seizures across the world over the period 2011-2013, and completes and develops a previous study from OECD on “The Economic Impact of Counterfeiting and Piracy”, published in 2008.

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the majority of which come from Asia and are distributed by synergetic criminal organisations within European Union (EU). The study will be updated in 2017.

The Executive Director referred to the new Europol IP Crime Coordination Centre,which will open on 12 July 2016 and will focus on online IPR infringement, and theimminent signing of a Memorandum of Understanding (MoU) between EUIPO and Eurojust. The EUIPO is also working with CEPOL to create a joint, virtual training platform for police officers. Finally, the Executive Director referred to two practical e-tools created by the EUIPO called the Enforcement Database (EDB) and Anti-Counterfeiting Intelligence Support Tool (ACIST), which are used by all LEAs across the Member States in order to identify infringing goods.

A round table introduction by each seminar participant took place and the presentations began.

Introduction to the First Session: Protection and Enforcement

IPR Protection and Enforcement Overview – A Practical Approach – EUIPO

A presentation was given by the Observatory which focused on the scale of global counterfeiting, and the high financial returns made through IP crime. The speaker underlined the increasingly intrinsic links between the production and sale of counterfeitgoods and the involvement of OCGs. The reason for the relationship was clarified: fake pharmaceutical goods generate EUR 300, 000 for each USD 1000 invested, and software piracy generates EUR 400, 000 to 100, 000 for each USD 1000 invested - in comparison to 20, 000 made through the production of heroin2. In comparison, the sanctions for IPR crime across the EU are lower than those for drug trafficking.

The Observatory emphasised key messages gathered from enforcement officers during recent training events – the importance of turning intelligence into concrete evidence which can be used in Court; the message that counterfeiting is not a victimless crime; that counterfeit products have the potential to cause severe physical harm to their consumers owing to the lack of safety checks. The importance of harnessing right holders´ cooperation in order to support Customs operations and, in particular, to rapidly communicate information on the type of IPR violated was specifically highlighted. It was noted that, in general, IP crime is not generally viewed as a criminal matter with wide reaching financial and public safety implications.Additionally, law enforcement officers are tasked with presenting IPR cases in the most comprehensible manner to court.

The speaker listed the available civil remedies under Directive 2004/48/EC3 andCustoms Regulation 608/20134 which provide for damages, seizure of bank accounts, assets and machinery used to facilitate the crime; closure of infringing production sites 2 The EU Observatory’s IPR and Enforcement Teaching Kit for Enforcement Officers (2014 figures provided by Europol)3 Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property right – the “Enforcement Directive”4 Regulation (EU) No. 608/2013 of the European Parliament and of the Council of 12 June 2013 concerning Customs enforcement of intellectual property rights and repealing Council Regulation (EC) No. 1383/2003 – the “Customs Regulation”

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and websites; destruction of infringing goods; and the publication of judgments.Additionally, Article 61 of TRIPS5 provides for wilful trade mark counterfeit or copyright piracy on a commercial scale, including remedies of fines and/or imprisonment across the Member States. On a criminal level, damages, confiscation and destruction are provided for on a national level – and at varying degrees. The presentation underlined the practical difficulties for prosecutors across the Member States when pursuing acriminal conviction for many IPRs including trade secrets, semiconductor topography rights, plant variety rights, geographical indications (GIs), and copyright. It was also highlighted that, in general, it is difficult to pursue design and patent/utility model cases.In conclusion, the easiest route to pursue is a claim for trade mark infringement, in terms of absolute rights.

The speaker underlined the international context of confiscation which is supported bytwo conventions of the Council of Europe which criminalise the acquisition of theproceeds of crime6 and promote mutual assistance across States regarding confiscation and freezing of proceeds of crime by criminal groups in a harmonised manner across the Member States. Additionally, the UN Convention against Transnational Organised Crime7 and Directive 2014/42/EU8 aim to provide normal, extended and third party confiscation. There is no threshold in terms of normal confiscation. The presentation underlined the importance Directive 2014/42/EU in terms of extended confiscation, which is not reliant on evidence but - subsequent to a criminal offence - can be pursued based on the imbalance between declared paper assets and lifestyle. It also provides for third party confiscation from those who enjoy the proceeds of crime, including banking establishments. When transposed, the legislation should apply with retroactive effect to past cases which have not yet reached a final judgment.

The speaker concluded by highlighted the need for LEAs to harness available European tools in order to achieve criminal convictions, including Council Framework Decision 2005/214/JHA of 24 February 2005 on the principle of mutual recognition with regard to financial penalties; Council Framework Decision of 13 June on the European arrest warrant and the surrender procedure between Member States; and Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

Current and Future Challenges and Trends in IP Crime – EUIPO

5 The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members.6 signed respectively in Strasbourg on 8 Nov 1990 and Warsaw, 16 May 20057 signed in Palermo on 12-14 December 2000, and which entered into force on 29 September 20038 Directive 2014/42/EU of the Parliament and of the Council on 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union - which must be transposed by 2016

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The presentation focused on the domestic production of IPR infringing goods; supply chain vulnerability; misuse of the domain name system; and the rise of IPR infringement on Darknet – as well as the factors which link them.

The presentation began with a case study9 which involved the seizure of counterfeit products. Multiple and simultaneous raids were organised between ASAE and the Spanish National Police, who had identified a Moroccan OCG which had reinvested EUR 5.5 million in their native economy, derived from the sale of counterfeit products within the EU. It was discovered that business transactions had taken place within religious buildings.

In another case, the Neapolitan mafia organisation, Camorra, abused EU open border trade with China to import fake and substandard machinery on a commercial scale, in order to relabel and distribute the goods within EU territory: this method of illegal production and distribution exploits the traditional enforcement and supply chain regulation system within the EU. The two cases highlighted the use of sophisticated and highly organised logistics systems established between criminal gangs working collaboratively within the EU and China, and the use of forgery and money laundering in order to disguise the origin of the economic gains made through IP crime.

Cited from the “2015 Situation Report on Counterfeiting in the European Union”(Europol and EUIPO) infiltration into the legal supply chain can be caused by corruption at factory level, and at distributor and wholesale level. It could be argued that few customers would knowingly buy counterfeit products for consumption, which leads OCGs behind the production and sale of counterfeit in specific industries – for example, the wine and spirits industry - to target wholesalers, restaurants and bars, prior to consumer purchase. A lack right holders’ knowledge regarding the components in their supply chain, alongside a lack of sufficient checks in general were identified asvulnerable entry points. Fake products for human consumption violate IPRs including geographical indications (GIs), and pose serious health risks owing to dangerous and unknown components.

The EUIPO gave an update on their study “Online Business Models Infringing IPR”which will be published during 2016. The report identifies 25 business models which harness malware, digital content sharing, cybersquatting and affiliate marketing in order to disseminate information and products which infringe IPRs. The study includesa taxonomic matrix with accompanying analysis, in order to identify the main marketing channels of the business models; the specific attraction they pose for consumers(including customer support services); their main income channels, and the resilience measures against enforcement that is applied. The matrix matches six types of digital platforms with six types of IPR infringement activities, and the study underlines the adaptability of the business models to exploit the economic business and technological opportunities posed by the internet. The Observatory intends to produce a practical, translated tool for use by investigators, lawyers and prosecutors to describe online business models infringing IPRs. In phase 2 there will be carried out an in-depth study of a specific business strategy used to infringe IPRs. 9 taken from the “2015 Situation Report on Counterfeiting in the European Union” – Europol and EUIPO.

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The rise of IPR infringement on Darknet was presented, owing to the ability to trade and communicate anonymously via the TOR (the Onion Router) browser, and through the use of the virtual currencyBitcoin. On certain marketplacescounterfeit goods are available for sale and distribution, including infringing medicines. It was noted that, at present, the majority of business models on Darknet favour sales to other businesses (B2B) - however, the commercial scale marketing of infringing goods on Darknet to consumers seems to be increasing.

Europol underlined that many IP crime cases are underestimated; they emphasised that their basis sits firmly in organised crime and their sole purpose is the generation of commercial scale financial gain, to the detriment of consumers.

Introduction to the Second Session: Enforcement Tools and Portuguese Case Examples

Enforcement Database (EDB) and Anti-Counterfeiting Intelligence Support Tool (ACIST)

The EUIPO gave an overview of two online tools created by the EU Observatory tosupport law enforcement, and which are based on the existing TMview and Designviewsystems. The EDB is a secure platform for IP right holders and enforcement authorities. It was created in cooperation with right holders who populate the tool, with Customs and the police, alongside Europol and DG TAXUD. The EDB enables users tosearch for a specific IP right; to add information about products held in the database; to receive alerts from right holders regarding suspicious activity; and to link a search to a specific Member State or product. The tool is translated into all Member State languages and the dashboard displays images of the product in question, contact information, information concerning the usual logistics route, and data on past and current cases. Users are able to file an electronic pre-AFA (Application for Action) via the EDB. In future, the tool will be interoperable with DG TAXUD’s COPIS system.

ACIST gathers statistics on counterfeited and pirated goods detained at all EU Member States' borders and in the national markets of 15 Member States. It was created in order to support right holders and policy makers by converting the collected data into a harmonised format so that it can be compared and aggregated. It is possible for users to access information on an item’s detention date; the country of provenance; quantity and type of product; and the IPR violated. Users are able to generate reports based oninitial searches.

ASAE gave positive feedback on their use of the EDB and ACIST systems.

Customs Capacities to Tackle IPR Fraud – Portuguese Customs

The presentation focused on the evolution in Customs´ strategic risk managementduring the last 40 years within the context of the EU. More than 500 counterfeit goods are detained each minute within the EU by Customs; during 2014, more than 1 billion counterfeit articles were discovered. It was explained that risk management systems have been forced to progress to deal with the increasing volumes of goods and people in transit. Pre-loading information given by logistics companies support Customs’ initial

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analysis, followed by conformity controls and clearance of the goods - which lead to compliance and investigation, and post-clearance controls. Increasingly, Customs is tasked with the prevention of illegal trans-border movement of goods and money, in addition to the collection of taxes and duties in a transparent and timely manner.

A case study was given which underlined the importance of cooperation between Customs authorities at central and border levels, and between Customs and other agencies in order to identify, analyse and seize infringing products via the use of risk profiling. Data can be uploaded in the common risk management system (CRMS)visible to all Member States and passed on to the Customs authority with jurisdiction, when necessary. However, risk profiles are not frequently updated at EU level, and it is additionally important for Customs to possess updated lists regarding the products which are transported. Random controls account for 0.5% to 1% of controls carried out within the Member States.

Anti-Counterfeiting Working Group (GAC) in Portugal – National Institute of Industrial Property

The presentation gave an overview of GAC which was created in 2010 in cooperation with the National Institute of Industrial Property, and which benefits from the members´ different competencies to promote cooperation between public authorities and the private sector. In 2016, REACT joined as new observer members.

GAC´s main purpose is to combat commercial scale counterfeiting in a systematic manner, on a national and international level. The group uses the Observatory´s studies including “Trade in Counterfeit and Pirated Goods: Mapping the Economic Impact” published in 2016 in order to identify counterfeit goods which pose a threat to consumer safety. In 2015, statistics revealed a huge rise in counterfeit food and beverage products, which resulted in GAC’s increased efforts to raise publicawareness regarding the dangers of fake and substandard consumer products.

Raising general awareness of IPR issues is one of GAC´s main priorities, alongside the improvement of national legislation in order to better protect citizens against infringing goods. The organisation hosts annual, high level meetings in order to plan future activities and reflect on past successes and areas for improvement, in addition totechnical group meetings. The GAC Portal is an online platform in English and Portuguese which offers general information for consumers on legislation, institutions and news on IP crime, and through which consumers are able to file confidentialelectronic reports on infringing products.

Public awareness initiatives focus on campaigns which target the younger generation and university students; involvement in the Portuguese Junio Achievement; collaboration with Microsoft´s “Curriculum Digital Citizenship”; regular competitions and comics on IP issues; and presence on social networks including Twitter and Facebook.Additionally, GAC offers training to small and medium enterprises (SMEs) on general enforcement procedures – and, alongside trade mark experts, offers a general course on IP. The Academy of the Portuguese Industrial Property Office regularly publishesnewsletters and flyers promoting IPR and its enforcement.

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ASAE represents Portugal under the EMPACT initiative 2014 - 2017. GAC is heavily involved in the Working Groups of the EU Observatory and attend regular training sessions held by the EUIPO. They were also represented in the Expert IP Enforcement Group held at the European Commission, and will be present at the Advisory Committee meeting held at the World Intellectual Property Organization (WIPO) during2016.

In their conclusion, GAC called for significantly intensified efforts regarding the enforcement of IPR in order to support European business and innovation. They urged right holders to actively protect their IPR and to collaborate with enforcement authorities, whilst encouraging the dissemination of best practices between European LEAs and courts in order to combat the rise in counterfeit trade by OCGs.

Case Study; The Counterfeiting of Goods (clothes including sportswear) -Portuguese Economic and Food Safety Authority (ASAE)

ASAE is the central Portuguese agency with competence for law enforcement on food safety and is tasked with official control of the food chain in Portugal via central and regional control services. The organisation offers assistance to judicial authorities in the detection and investigation of criminal offences, whilst operational acts are planned in accordance with technical, legislative and procedural priorities.

A case study was presented which highlighted the role of social media in the sale ofcounterfeit goods, and the huge financial returns generated by the sale and distribution of infringing goods. The investigation started with complaints of counterfeit clothing sold on Facebook, and subsequent investigational work lead to identification of the IP address and physical geographical address of the offenders. Warehouses and private houses were found to host large sums of money, fake products, IT equipment and transportation documents concerning the counterfeit items. The ability of OCGs to adapt quickly subsequent to discovery was emphasised; new webpages were quickly established after the original pages were shut down following court orders. Notably, the speaker explained that Facebook did not respond to the many requests for take down which it received.

The Portuguese National Guard (GNR) suggested that they could work together with ASAE and the judicial police in order to “follow the money” on tax fraud cases, which would permit surveillance processes, including phone tapping.

Introduction to the Third Session: Enforcement and Case Studies from EU Member States’ Authorities

Case Studies in Spain; “Operacion Prima” – Cuerpo Nacional de Policia (Spain)

The presentation detailed a successful operation carried out by the IP Section of theCuerpo Nacional de Policia, who worked collaboratively with the Portuguese and Italian authorities to uncover an organised crime group, following the initial discovery of IPR infringement. The investigation quickly developed to a large operation dealing with the production of illegal medicines, a complex money laundering system and tax fraud. The investigation was carried out in cooperation with Portuguese Customs, and involved

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130 companies within 8 countries. Throughout the course of the simultaneous investigation, 126 search warrants were issued throughout Spain, Italy and Portugal.

The speaker underlined the highly complicated and structured business models used by organised crime groups, which was formed on multi-tiered levels, and with involvement from the main criminal´s extended family. The many actors involved facilitated the necessary logistics across Member States including importation, and the establishment of cover companies. The primary team within the OCG was formed byprofessionals including lawyers and accountants. The modus operandi of the group targeted entry into the legal supply chain. It was also notable that the main business -the production of fake medicines - was complemented by the widespread act of money laundering through the production of fake invoices to synergetic companies. During the course of the investigation, the OCG extended their competence into the production and sale of narcotics.

In total, 60,0000 counterfeited goods were discovered by ASAE who worked in cooperation with the Cuerpo Nacional de Policia, in addition to 250 properties, 150 vehicles, 16, 000 illegal sports goods, and EUR 10 million. Notably, direct connections between the OCG and terrorist groups in Pakistan were discovered.

It was noted by the floor that IP crime is often overlooked by the judiciary and within the police, in terms of gravity and the threat posed to public safety. Importantly, the presentation highlighted the increasing trend between the proceeds of IP crime and the funding of terrorist activity.

Europol expressed their support to work in the context of IP crime and counter-terrorism. The EUIPO asked participants in what ways international organisations could support cross-border operations, and reminded participants of mutual legal assistance system facilitated by Eurojust. Feedback from the floor suggested that bilateral cooperation offers the potential for rapid responses which are vital to trans-border operations. It was noted that some Member States react more rapidly than others. It was agreed that different channels of cooperation offer complementary solutions.

Surveillance and Seizure of Food Products and Counterfeit Medicines (Case Studies) – Guarda Nacional Republicana (GNR)

The GNR gave a joint presentation on their collaborative efforts to seize counterfeit products made and distributed by an OCG. The GNR have a Fiscal Action Unit with powers to investigate economic crime, made up of three sub-teams which are responsible for the entire process of data collection and documentation throughout the investigation.

Four case studies were given: the first study underlined the development of an initial warehouse discovery into the seizure of 35,000 counterfeit items. The OCG which sold the infringing items had also carried out wide scale tax fraud and money laundering,supported by sophisticated logistics and banking systems.

A second case study detailed the discovery of an illegal factory producing fake alcoholic products and corresponding labels, made within substandard conditions. The

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Portuguese and Spanish police worked collaboratively on an operational level in order to seize over 22 weapons including taser guns; 65, 000 litres of fake alcohol; and more than EUR 350 000 in cash. It is estimated that the total activities of the criminal group have totalled more than EUR 3 million in tax fraud.

The third case study involved working within a joint investigation with Romanian police, established via a bilateral relationship. The OCG’s activities were dedicated to smuggling tobacco into national sea ports. Twelve months of surveillance including wire-tapping followed by road blocks carried out by 58 officers in total, during a two-day operation, resulted in the issue of 21 search warrants, and the seizure of more than 15 million cigarettes which had been produced in Romania. It is estimated that over EUR 4 million in tax fraud had been carried out.

The fourth investigation involved fake and substandard spirits introduced to the parallel market and distributed to restaurants and bars by a large OCG. In collaboration with Portuguese police, 31 search warrants were issued, 7 people were arrested, and weapons and ammunitions were confiscated.

The EUIPO asked the speaker whether the profiles of counterfeiters had evolved – for example, drug traffickers progressing to counterfeiting activities. The GNR replied that they have observed a change from smaller groups involved in counterfeiting, to large and highly organised criminal structures for whom transportation, accountancy, and security experts work. They also explained that OCGs constantly change their logistics routes and timetables in order to hinder detection.

The speaker concluded by underlining the necessity for LEAs to work together owing to the scale of cross-border crime, which is too big for one authority to tackle in isolation.

Operational Examples in the Fight against Counterfeiting in Italy - Guardia di Finanza

A presentation was given by the Guardia di Finanza, which has competence for economic and fiscal crimes throughout Italy, concerning an operation which investigated websites selling counterfeit luxury products. The website was registered inthe UK by a Chinese company which carried out transactions using a Chinese bank account, in order to hinder enforcement attempts to “follow the money”. The Guardia di Finanza managed undercover investigations involving test purchases of the counterfeit goods, expert examination, and subsequent website closure, ordered by the judiciary.The case highlighted cooperation on behalf of DHL which facilitated delivery and receipt of the counterfeit products.

In 2014, the Guardia di Finanza developed and launched an anti-counterfeiting information system called SIAC (Sistema Informativo Anti-Contraffazione). The tool designed to increase the co-operation between the public sector and brand owners, in order to achieve the common goal of exchanging valuable information in the fight against counterfeiters.

The speaker underlined lessons learned and future areas of focus which centre onincreased cooperation with international agencies including Europol, Interpol and

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Eurojust in order to support mutual legal assistance and onsite, operational activities. The sharing of preventative intelligence with other organisations was highlighted as an issue for future improvement.

The case study presented highlighted the rise in online sales via social media platforms which sell counterfeit goods, and in reaction, the WCO emphasised the need to engage at a greater level with right holders in order to secure information and to support enforcement action against infringing websites. Europol explained that their new IP Crime Coordination Centre will offer technical expertise and resources which could be used to support operational activities including test purchases from the internet. It was noted that Framework Delegation Agreement funds from the European Commission are available to support operational activities.

The Activities of Greek Customs in Piraeus Port – Greek Customs

Greek Customs gave an overview of Piraeus Port which is an east-west gateway set in the Mediterranean and operates as a busy and modern trans-shipment hub. It has been modernised in reaction to the rise in container growth, and holds a high risk indicator regarding counterfeit items owing to its position in Europe.

The central Customs administration sits under the Hellenic Republic Ministry of Finance and the General Directorate of Customs and Excise. It operates the port under an e-Customs based risk environment, with a specialised IPR and Prosecution Department which handles all IPR cases. The 6th Customs Office within the port hasmobile Customs units and an Ex-Post Control Department. Within the Regional Customs Unit, the IPR Office manages all AFAs and works alongside the central Customs Office, with access to the EDB database. Additionally, the Elite Risk Department specialises in investigations and post-check controls.

The Customs authorities apply Regulation 608/201310 and national legislation which was established under Law no.4153/2013; the latter simplifies the seizure and destruction procedure. They actively work in collaboration with other authorities, including LEAs and police, the General Secretariat of Trade Affairs, prosecutors and anti-fraud authorities via official guidelines and supported by clear and consistent communication. Additionally, Customs work in collaboration with the private sector regarding training; in order to work within a clear operational frame, Customs asks the private sector to maintain a zero tolerance policy towards counterfeiting. The presentation underlined the iceberg analogy with regard to criminal networks, of which IP crime often represents only the tip. The speaker underlined the need for national authorities to cooperate with international organisations in order to destabilise the foundations of OCGs.

10 Regulation (EU) No. 608/2013 of the European Parliament and of the Council of 12 June 2013 concerning Customs enforcement of intellectual property rights and repealing Council Regulation (EC) No. 1383/2003 – the “Customs Regulation”

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It was explained that risk indicators at Piraeus include the country of provenance; the description of goods declared: and suspicious goods. Sources of information include national and international LEAs, consumers, rights holders and other Customs authorities. It was explained that ad hoc controls can be carried out by Customs officers, but the lack of resources prevents the regularity of such controls.

Two short case studies were given which highlighted best practice in collaborative working. In the first, the Customs’ IPR Department received information via an AFA regarding counterfeit cigarettes imported via the Piraeus Free Trade Zone (FTZ) from Vietnam via Singapore and subsequently, to Turkey. The data was sent to the risk analysis systems (RED), and through working alongside the Anti-Counterfeiting Unit,almost 10 million items were seized. In the second case, the General Directorate of Customs and Excise alerted Customs regarding the importation of fake wine from Bulgaria to Piraeus. A joint operation with mobile Customs units successfully detained a labelling machine and 20, 000 litres of fake wine.

Finally, the speaker explained that they are in the process of amalgamating the resources of Customs and laboratories in charge of chemical analysis, in order to gather data and build risk profiles on potentially infringing companies more efficiently.

Field Experience in Container Selections and Detentions – Maltese Customs

A presentation was given which underlined Malta’s role as a central Mediterranean logistics hub with close proximity to Northern Africa. The terminal has becoming steadily larger and currently handles 3.5 million units per year facilitated by major shipping lines, under a team of only 230 officers. Customs work daily under tight time and human resources constraints due to rapid cargo turnaround times. The speaker emphasised the practical difficulties in selecting ship containers owing to the volume of cargo - and time, human, and scanning resources.

Maltese Customs work under national Act VIII of 2000 (the IPR Cross-Border Measures Act) and under EU Regulation No. 608/2013. Alert lists are disseminated to every front line officer, and Customs work alongside right holders in order to receive information and to engage in training on IPR and their brands.

The current guidelines for container examination follow a strict procedure based on risk analysis tools, the import control system (ICS), and based on declarations in bills of lading. Customs’ Risk Analysis Unit focuses on criteria including documentation and a lack thereof; post-arrival sample collection and examination; declared routes; the shipper: the commodity; and the weight of the container. Notably, Customs focus on the latter three criteria – in particular, the declared weight in bills of lading, because from experience, they offer key signifiers which can identify suspicious contents thatcould not relatively match with the declared contents and weight.

A case study detailed the discovery of commercial scale exportation of highly dangerous substances including Tramadol from Libya by an OCG. The goods, when seized, were in transit and were highly polished pharmaceutical products,indistinguishable from the genuine article.

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In conclusion, Maltese Customs highlighted the need for officers to collect correct samples, and for future work in cooperation with shipping companies.

Europol underlined the problems associated with the destruction of seized items including associated costs, and the duration of storage of seized goods, pending judgments. It was noted that the process is simplified under Article 20 of Customs Regulation 608/2013. Maltese Customs agreed that the majority of right holders do not wish to destroy the products, but in large cases of products which pose a serious risk to public health, there is generally cooperation on the behalf of right holders. However, right holders are reluctant to give permission for the destruction of postal packages, despite the provisions set out within the small consignments procedure.

Day 2 - Workshops

All participants were divided into four simultaneous workshops which focused the following questions in order to discuss how interagency and multidisciplinary level cooperation could be enhanced:

1. What is the level of cooperation between Customs and police in your country?Is there any exchange of information in ongoing cases?

2. Have you experienced any sort of cooperation with private sector representatives? Was this successful or unsuccessful? Can you describe why?

3. Do you regularly receive (if you are police or Customs) or provide (if you are aprosecutor) feedback on cases when they are prosecuted? If not, can you explain why?

The bullet points from the workshop discussions are collated in the Annex to this document.

Day Three – Introduction to the Fourth Session: The Importance of the Cooperation with the Private Sector

Public/Private Cooperation and Best Practices in Brand Protection - REACT

REACT is a non-profit organisation, founded in 1991 by the Chamber of Commerce in Holland, which subsequently established branches across the world. The organisation now covers 85 countries, with presence in the Middle East, Asia, Africa, and Latin America. In 2015, REACT recorded 55,000 cases of counterfeit across 85 countries.

The main priority of REACT is to establish and develop a strong partnership with Customs formed via MoUs, and with the support of the European Commission. REACT provides regular and regional training for Customs, which forms an integral part in the fight against the dissemination of counterfeit products. The organisation also works closely with GNR, PSP and ASAE to file and renew AFAs, send cease and desist letters, to file civil and criminal complaints, and to provide representation in court.

REACT explained that they have a wealth of experience regarding the production and distribution of counterfeit goods, gathered from over 200 member companies. Their service to members, in cooperation with LEAs, includes an internet monitoring team,

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liaison with Customs, market monitoring and investigation, and training and networking seminars. REACT´s website includes a protected area for LEAs and offers advice (including training guides) on how to identify counterfeit products and their logistic routes. REACT’s internal software collates information on all infringement cases and makes them visible to members. The Guardia di Finanza expressed their interest in the portal.

Owing to the rise in online sales of counterfeit, REACT has invested in WebCrawlerwhich identifies websites advertising and selling fake products, including social media sites. Test purchases can be carried out to identify the status of the goods, and to initiate investigations and legal actions under REACT’s team of in-house lawyers. They noted that blocking infringing sites on Facebook has not proved successful, but they have signed agreements with eBay and Google which result in site take down by the platforms, without the need for a court order.

Feedback from the floor urged right holders to support the opportunity for destruction under the recent small consignment procedure11.

Defence of IPR and the Losses Caused by Acts of IPR Violation from the Right Holder´s Perspective – União de Marcas

The organisation consists of 18 international and Portuguese brands, and was created in 2001 in order to debates issues surrounding IP rights and protection; to lobby; toidentify areas of improvement; and to facilitate national awareness campaigns and cooperation with international associations. União de Marcas currently focuses on sponsoring events and supporting campaigns with a specific focus on the younger generations and online purchases. They are observer members within GAC.

The speaker explained that, despite the legal framework in Portugal, and efforts of INPI (the National Industrial Property Office) and ASAE which work proactively to fight counterfeit and in order to raise awareness of the dangers of counterfeit products - and the significant progress of GNR and PSP in fighting counterfeit.

Notably, the 2015 Situation Report on Counterfeiting in the EU (Europol-EUIPO),shows that, despite China’s increased production of their own brands, they continue toproduce high numbers of fakes which violate European IPRs. The speaker also noted increase in domestic production of fakes within the Czech Republic, Portugal and Poland. Additionally, free trade zones (FTZs) enable counterfeiters to conceal the origin of the goods, and act as sites of relabelling with fake trade marks.

The presentation concluded by emphasising the necessity for courts to enforce IPR and to impose sanctions which serve the dual purpose of dissuasion and compensation. It was also noted that storage and destruction costs deter right holdersfrom taking action. The organisation called for increased cooperation with payment intermediaries and to increase pressure on China to protect IPR.

The EU Observatory explained their judges’ network, which comprises of over 900 judges, which regularly hold practical seminars on topics including calculating and 11 Article 26 of Regulation (EU) No. 608/2013

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awarding damages, and criminal confiscations. They added that the seminars involve private sector participation, including representatives from Google and the tobacco and pharmaceutical industries. The Observatory encouraged the private sector to collate and present concrete evidence to courts.

Counterfeit Brands: Effective Control of Counterfeiting and Economic and Societal Consequences – Unilever Jeronimo Martins

Unilever Jeronimo Martins gave a presentation on their company, which is a household name and owns more than 400 brands. The company produced sales of more than EUR 53 billion in 2015, and each year, they invest over 1 billion into research, staffed by over 6000 industrial scientists. Unilever has almost 20,000 registered patents and patent applications. They explained that protecting their brands is an increasingly complicated task owing to the rise in organised and cross-border illegal supply chainswhich enable foreign and domestic production and supply of fake and dangerous products.

The President of Unilever made a public announcement underlining the destructive nature of fake products on genuine businesses which states “trust is the bedrock of the consumer relationship…. just one bad experience with a counterfeit product will violate this trust, threaten our reputation and put business at risk.”

The presentation explained that counterfeit lowers demand for legitimate products, causes a decline in sales and profits - and subsequently decreases job stability and investment into innovation and research. Additionally, companies incur large costs in order to fight cases and to protect their products. The significant threats to public healthcaused by fake and substandard personal care and household products were highlighted in slides which showed seriously injured consumers. The detriment to society as a whole was also underlined, through the scale of unpaid taxes. It was explained that the criminal organisations behind the production and sale of counterfeit products reinvest their profits in order finance other illegal activities including terrorism.

The presentation concluded by underlining the need to increase public awareness campaigns on the dangers of counterfeit and dangerous goods, and how to identify them. It also highlighted the necessity for sustained regional enforcement approachesin order to tackle the problem across borders in a systematic and uniform manner.

Protection of Brands and Effective Means to Control Counterfeiting – L’Oréal

L’Oréal supplies cosmetics, haircare, personal care and professional products to hair salons and to pharmacies, travel retail and via e-commerce. The company has presence in 140 countries worldwide and employs 82,900 staff. In 2015, they registered 497 patents and generated over EUR 25.26 billion. They currently employ 3870 research and innovation personnel.

The company dedicates large resources to protect their IPR across the world and work in cooperation with LEAs including Customs, and police authorities. Within Portugal, they work alongside ASAE, the police, and a local law firm who will act when more than 30 items of counterfeit are discovered. Since 2005, 1,715 seizures have taken place

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within Portugal, totalling 16, 419 counterfeit goods, 570 criminal complaints, and 1072 requests for destruction. ASAE, the public prosecution services and GNR initiate roughly the same amount of cases and work collaboratively within Portugal.

The speaker underlined the loss to legitimate business through online sales of fakes. The company has suffered threats to legitimate business from Romanian sites selling fake perfumes. The CJEU L'Oréal v eBay12 2011 case was cited, in the context of the ability to identify actors behind intermediary websites which sell counterfeit and substandard products to the detriment of the European economy.

Europol´s Support to Operational Activities in the Fight Against IP Crime –Europol

The presentation focused on the global scale of counterfeit goods, the involvement of organised crime groups in their production and distribution, and trends in emerging provenance and transit countries including Turkey and UAE (United Arab Emirates).

The support which Europol can offer LEAs via liaison officers from each Member State, and seconded national experts working in specific areas – on both an analytical and operational level - was highlighted. Europol’s Focal Point Copy focuses on counterfeit goods within the EU and supports Member State authorities through the facilitation ofmobile offices, onsite forensic analysis (the information gathered is admissible in court) and translation services. In future, Focal Point Copy will focus increasingly on internet related counterfeit, and the department is training an analyst under the new IP Crime Centre which will open in July 2016.

Europol supports global interagency working, and cooperation agreements signed between Europol with third parties are complemented by agreements with the US. TenUS agencies are represented at Europol and contribute to the information collated inEuropol databases. The organisation gave case examples of joint investigation between 6 Member States which were coordinated at Europol. The facilitation of such coordination is particularly pertinent to online IPR crime owing to the locations of the actors, websites and bank accounts involved, and the trans-border distribution chainsand points of sale. Europol’s coordination at national level focuses on how to involve all competent authorities including the prosecution, and includes annual meetings at Europol.

The EU Policy Cycle 2014-2019 priorities are based on the Europol 2013 SOCTA Report which is constantly evaluated, and upon which recommendations are made. One area of priority focuses on the illicit trade in counterfeit and substandard goods which violate health and safety regulations. The findings from Operation Pangea and Operation Underground have been distilled in reports which set out information regarding OCGs.

The presentation concluded with the acknowledgment to improve the sometimes slow response rate between authorities, and the need to facilitate rapid and direct response from prosecutors via Eurojust.

12 C-324/09, L'Oréal SA and Others v eBay International AG and Others

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Eurojust´s Role in the Coordination of Transnational Cases - Eurojust

The presentation started with a background of the organisation and explained Eurojust´s competencies and mission, which is set out in the Lisbon Treaty13, “tosupport and strengthen coordination and cooperation between national investigatingand prosecuting authorities in relation to serious crime affecting two or more MemberStates […] in order to combat crimes affecting the financial interests of the Union, theCouncil, by means of regulations adopted in accordance with a special legislativeprocedure, may establish a European Public Prosecutor’s Office from Eurojust".

Since its establishment, Eurojust moved to The Hague and since 2007, it has consisted of 27 National Members of the College of Eurojust. Since its enlargement, the organisation has been active in negotiating cooperation agreements with third States and other EU agencies, allowing the exchange of judicial information and personal data. Agreements have been concluded with Europol, Norway, Iceland, the USA, Croatia, OLAF, Switzerland, and the former Yugoslav Republic of Macedonia. Liaison prosecutors from Norway and the USA are now permanently based at Eurojust. In addition to cooperation agreements, Eurojust also maintains a network of contact points worldwide.

Eurojust is able to assist in criminal cases which involve two or more Member States and it aims to solve the difficulties posed to national judicial systems which deal with serious and cross-border crime. In such cases, immediate action is required which, at times, is prevented owing to the disparities in national legal systems, admissibility of evidence and procedures. Eurojust works to define a common strategy and establish joint investigation teams (JITs).

The Eurojust Coordination Centre is able to offer assistance regarding MLAs and requests for information. Coordination meetings enable national members from each country to discuss cases (supported by translators), to find a solution. They have the authority to lay down court orders to freeze bank accounts, seize assets, and organise simultaneous operations in multiple countries. Between 2002 and 2015, 2214 caseshave been supported by Eurojust. During 2015, 274 coordination meetings took place, many of which involved counterfeit food and health products.

In 2013, Eurojust worked alongside the UK and Spanish authorities within Operation Vigorali, which focused on the production and sale of illegal medicines, produced in India and marketed via Dutch websites. The Spanish authorities approached Eurojust in order to coordinate the operation and prosecution of the case; and to prevent conflicts of jurisdiction and double jeopardy. The organisation defined the terms and conditions for collation of evidence, and worked collaboratively to solve other potential judicial and legal issues in the case.

INTERPOL´S Initiatives to Combat Counterfeit Worldwide - INTERPOL

13 Articles 85 and 86

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A presentation was given on the competencies of INTERPOL which include capacity building, awareness raising and operational activity - with specific focus on financial crime, organised crime, pharma crime, cybercrime and terrorism.

INTERPOL was founded in 1923 as a global police organisation. It is based in Lyon,and with 190 member countries, it facilitates cooperation between agencies, the sharing of information, and provides expertise across a range of crime areas. The organisation has recently established an office in Singapore and operates 24/7 in order to offer crisis support.

INTERPOL’s core functions include secure global communications and the creation of tools to support investigations. These include databases which hold nominal information, DNA, fingerprints, and information on child sexual exploitation and abuse (ICSE). Additionally, INTERPOL issues notices regarding wanted and missing persons.

One of the organisation’s foci is counterfeit and organised crime. INTERPOL has released a report entitled “Trafficking and Counterfeiting Casebook 2014” which offers a summary of the global situation. The International IP Crime Investigator’s College (IIPCIC) - which is an initiative set up in collaboration with Underwriters’ Laboratories (UL) - is a fully interactive IP crime e-training facility which benefits all law enforcement, regulatory authorities and private sector IP crime investigators. TheCollege’s main objective is to deliver leading edge training to enable investigators to effectively combat current and emerging threats from transnational organised IP Crime. IIPCIC is delivered on a multilingual platform that supports over 20 languages.The IP crime courses are offered in the four INTERPOL official languages of Arabic, English, French and Spanish.

The speaker gave examples of international anti-counterfeiting operations which include Operation OPSON (counterfeit and substandard food and beverages; co-organised with Europol) and Operation White Mercury, which will focus on organised IP crime in eastern European Member States. Project Chain was carried out in South East Asian countries in order to map the logistics routes between India, the Middle East and South East Asia.

Participants were reminded that the 10th International Law Enforcement IPR Crime Conference will take place in London on 19-20 September 2016.

WCO´s IPR, Health and Safety Programme; Operational Activities – WCO

The World Customs Organization gave a presentation on their IPR, Health and Safety Programme which focuses on four main aspects; capacity building activities to tackle counterfeit, fostering cooperation; tools; and raising awareness.

Capacity building activities are delivered upon the requests of members and to support Customs officers on topics including risk analysis, how to identify counterfeit goods,and national legislation. The risk analysis tools of many countries are not updated sufficiently regularly to keep abreast of the highly adaptable trends in counterfeiting.

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The organisation also fosters cooperation between national Customs and Customs in other countries; and Customs, other border agencies and other international organisations in order to better understand how they operate and their areas of specific focus. The WCO also facilitates the sharing and profiling of information regarding the modus operandi of criminal networks; if necessary, other authorities with jurisdictionand competence can take over specific operations. Additionally, the WCO supports relationship building between Customs and private sector through the delivery of national topic-led seminars delivered by experts on a range of issues including postal consignments, pharma crime, and procedural issues. The WCO also organises interregional workshops on IPR enforcement in collaboration with WIPO.

The speaker gave an overview of recent operations including Operation Balkan Gate held in collaboration with Europol during March 2015. The former Balkan drug road is currently used to import counterfeit products and has 10 main points of entry acrosscentral and eastern European ports and land borders. During the operation, 4 million units were intercepted including dangerous and substandard medicines.

Trends and patterns cited in recent interceptions include the separate shipment of products and labels in order to hinder detention and destruction; multi-traffic routes in order to confuse analysis of logistics; large quantities of counterfeit drugs contained in personal luggage; the preference to send counterfeits in small consignments; and source countries which specialise in the production of certain products - India produces fake medicines, Pakistan produces fake leather goods, and China acts as major source country for a wide range of counterfeit products.

It was explained that the many challenges posed by commercial scale counterfeiting include the need for right holders to take action on small consignment cases; the lack of competence to detain goods in transit by non-EU countries; and the lack of feedbackfrom right holders which would support data collation for future operations.

The IPM (Interface Public-Members) tool was explained which allows brand data to be communicated directly to Customs officers, facilitating the identification of counterfeit goods. IPM offers real-time communication between the private sector and onsite Customs officers who must make rapid decisions regarding the status of products. IPM offers information regarding source countries, logistics routes, seizures on previous cases, information about brand packaging, and contact points within each country. It is now available in mobile format, and officers are able to scan barcodes and upload photos to send to right holders. Right holders are able to send alerts based on the geographical location of the products in question.

Conclusion of the Seminar

Participants expressed their gratitude to the organisers for a fruitful and interactive seminar, which addressed a wide range of issues regarding interagency cooperation; the practical and legal obstacles to collaboration; and the online tools and interagency initiatives presented during the seminar, which have been created in order to support enforcement efforts across the European Union.

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Presentations during the three-day event underlined the efforts of Customs, police, national enforcement authorities, and European and international agencies in the fight against organised IP crime. Interventions from the private sector offered valuable insight into the way in which they are targeted by organised crime, and industry’sallocation of resources in order to protect their IP rights. The unanimous response from participants emphasised the will and need to increase channels of communication andcooperation between authorities, on national and international levels; between enforcement bodies and the private sector; and between LEAs, and the prosecution and judiciary.

The seminar also highlighted the increasingly complex structures of OCGs which operate within the EU and alongside international counterparts. Today, criminal networks involved in IP crime possess the technical capabilities and human resources to produce commercial scale counterfeits in every product sector; to carry out onlinemarketing and sales via sophisticated websites and via clandestine methods; and to manage intricate and robust international transportation systems which are highly adaptable to Member State’s enforcement efforts, once identified.

ASAE and EUIPO thanked all participants for their presentations, contributions and comments, and the seminar was closed.

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ANNEX

Workshop Questions and Bullet Points

1. What is the level of cooperation between Customs and police in your country?Is there any exchange of information in ongoing cases?

2. Have you experienced any sort of cooperation with private sector representatives? Was this successful or unsuccessful? Can you describe why?

3. Do you regularly receive (if you are police or Customs) or provide (if you are aprosecutor) feedback on cases when they are prosecuted? If not, can you explain why?

1. What is the level of cooperation between Customs and police in your country? Is there any exchange of information in ongoing cases?

Table 1The Slovenian police reported good cooperation between Customs and police on daily basis. They have an International Cooperation section. There is an established flow of information via Slovenian Customs liaison officers within the police service, supported by formally signed agreements.Spanish police reported good cooperation with regard to sharing operational information with Customs. Customs possess concrete data concerning tax related issues. The initial informal contact could be followed by further formal notification in order to exchange information. The positive collaboration between Customs and Police exists not only with regard to the enforcement of intellectual property rights (IPR), but also within the context of specific criminal investigations (e.g. money laundering, organised crime, drug trafficking, etc.).In Italy, Guardia di Finanza share information with Customs on a daily basis and border control is exercised simultaneously by Customs and Guardia di Finanza (the latter is regarded as the armed unit of Customs). When criminal offences occur at the border, Customs must notify the prosecutor, but they do not share information with other authorities, owing to legal restrictions. However, it was noted that there is no legislation to support collaborative working, and currently,there is no common system for the collation of information. From a prosecutorial point of view, it was suggested that, in certain cases, there is a lack of cooperation between enforcement - possibly owing to the multi-ministerial structure in Italy.The cooperation of Greek police with Customs authorities is quite specific. In cases which require the police to carry out seizures of products that are subject to excise duty (oil, cigarettes, alcohol, etc.) the Customs authorities are invited to take samples to examine the chemical composition of the seized products, when required. They are also invited to determine the amount of the evaded duties and taxes and to impose the relevant fines, as they are the sole authority

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responsible to do so in accordance with legislation. In general, there is no exchange of information between police and Customs authorities in ongoing cases. There is a need to foster cooperation between the police and the central Customs administration. The agencies are trying to develop a coordination centre of police, maritime and Customs agencies under the Ministry of Finance. Certain controls require police involvement but currently, there is a lack of trust which prevents the sharing of data.Portugal reported collaborative working in cases when Customs approach the police for support, but the reverse situation is not so positive – for example, when the police approach Customs to provide fiscal information. Bilateral relationships exist, but formal routes of collaboration do not function. The only functional method of collaboration is via a formal joint investigation team, (JIT) established under the prosecution service. However, there is established cooperation between Customs and ASAE in certain cases involving wines and toys which pose a health risk.France explained that French Customs is an administrative authority which possesses judicial powers and which reports to the public prosecutor. Subsequently, there is little need for police support. However, Customs liaison officers within the police enable the exchange of police data. The majority of IPR infringement cases are dealt with by the Gendarmerie. However, in cases which involve other crimes, it is possible for two agencies to work collaboratively. France reported a sound working relationship between Customs and OCLAESP; in general, Customs or the Gendarmerie deal with IPR issues,whilst OCLAESP will manage IPR cases which pose a threat to health. Specific laws enable the flexible sharing of information without the need for a judicialrequest.Malta reported a strongly established working relationship between Customs and police, and it is possible to exchange all necessary information.Croatia has established formal agreements between their prosecution service, Customs and police, which function well.In Portugal, Spain and Greece, Customs has competence with regard to criminal investigations. In Malta and Slovenia, criminal cases are passed to the police authorities, which have competence.Cyprus reported a good working relationship between Customs and police on IPR cases - the former are contacted directly by the latter – and in general, joint operations are promoted. The Police exchange information through the SIENA system (Europol) and participate in forums concerning medicines/ pharmaceuticals.The Portuguese Economic and Food Safety Authority (ASAE) and the Customs and Tax Authority (AT) work together in certain situations (for example, fake/dangerous alcoholic beverages and fraud tax) and when it concerns the monitoring of certain goods (e.g. counterfeit or substandard toys). If the goods are already within the domestic market or are manufactured in Portugal, ASAE have legal responsibilities for their supervision, but if the goods are non-Union goods declared for import (entry), export (exit) or in transit, AT exercises powers in its supervision.

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It was widely agreed that the establishment of formal cooperation is often a lengthy process, and data is treated as confidential by each authority. In the majority of cases, the prosecutor must be approached in order to access the required information. The general feedback suggested that the process of interagency collaborative working is often hindered by legal procedural constraints. The main disadvantage of relying on bilateral relationships is that informal cooperation methods are destabilised when staff move to other positions.Spanish Customs and police maintain an efficient and direct communication flow without the need to establish a formal joint investigation team between the two authorities.Europol underlined the current EMPACT priority cycle on counterfeit goods which encourages collaborative interagency working and the removal of practical obstacles. However, participants discussed the need for MoUs between authorities in order to facilitate interagency working at operational level, and to remove obstacles at a formal level.The cooperation between Customs and Police could be improved to jointly monitor the e-commerce of counterfeit goods. It was discussed that prosecutors do not participate in investigations, and this area could be improved. It was suggested that cooperation at national level is a key area for concern, and that the creation of national committees which amalgamate representatives from all authorities would be a positive solution. Additionally, it was suggested that cooperation could be improved through national IP contact points nominated within each authority.All groups agreed that procedures must be improved regarding interagency cooperation.

2. Have you experienced any sort of cooperation with private sector representatives? Was this successful or unsuccessful? Can you describe why?

In Portugal, the Anti-Counterfeiting Group (GAC) invited private sector representatives to participate as new members with observer status, including Centromarca, REACT and União de Marcas, and in order to promote public awareness campaigns of IPR issues including sporting goods. ASAE organiseda seminar in which the police, Customs, National Guard and Maritime police participated, in order to target counterfeit goods produced to exploit the UEFA Euro 2016 football competition, within the framework of EMPACT (EU policy cycle against organised and serious international crime), and to promote at national level, the coordination and planning of an operation called “COPYCAT”. In Italy, the authorities share information about IPR data with private sector representatives. Regularly organised meeting allows law enforcement authorities to share information about original and fake products in relation to

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certain brands (e.g. Prada and Adidas). Participants include lawyers, legal representatives and technical experts. It was widely agreed by police authorities that they require the support of right holders to proceed with a criminal complaint – however, right holders have different interests and prefer to proceed with civil cases. It was also noted that criminal complaints, when lodged, are sometimes removed during a late stageof the procedure, when financial settlements are made between the parties. In general, the authorities would like to receive more information from right holders - especially in cases regarding small consignments.It was noted by Maltese Customs that the disparity between the huge amount of trade marks registered and the number which feature in databases such as COPIS causes a problem.In France and Malta, emails can be sent in order to facilitate rapid communication and solutions, including a settlement. In Malta, the authorities cooperate with local representatives of the right holders.Additionally, small and medium enterprises (SMEs) do not have sufficient knowledge regarding the procedure of AFAs (Applications for Action).Cypriot Customs noted that their communication to right holders regarding destruction does not often result in action, especially in cases concerning small consignments. They highlighted the importance of private sector representation in court to testify against those accused of counterfeit crime. Representatives are able to provide technical documents in order to prove that goods are counterfeit. Cypriot Customs also underlined that campaigns promoted by the private sector are very important in raising the awareness of society regardingthe dangers posed by certain counterfeit products (e.g. vehicle parts and cosmetic/medical products).In Spain, the private sector promotes campaigns, marketing and social events in order to protect their trade marks.The Greek police reported very good and continuous cooperation with representatives of the private sector, especially in cases of seizure of counterfeited products. In these cases, private sector representatives are invited as experts to identify and confirm whether the seized goods are indeed counterfeit - and if so, to give relevant testimonies to be included in each case file. Additionally, the private sector provides information to the police for further investigation, and offer training to personnel, to provide the skills necessary to identify counterfeited goods.In Portugal, REACT assists on site during the search stage of the operation and assists in subsequent examination of the suspicious goods - this level of collaboration does not need to be authorised by the court; in Malta and France, this level of involvement would result in nullity of the case. However, ASAEreported some difficulties in finalising the destruction process owing to right holders´ reluctance, especially with regard to small consignments.It was widely agreed that opportunities for cooperation exist between the private sector and LEAs. However, in general, right holders could offer more information, training and product specifications to enhance LEA knowledge,

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specifically with regard to types of IPR including geographical indications (GIs),and information about usual logistics routes.There is a lack of harmonisation regarding thresholds, which causes problems.Portugal reported good cooperation with REACT and União de Marcas. ASAEalso promotes regular topic-led seminars such as infringing sporting goods and financial crime under the EMPACT priority cycle. In Italy, the authorities share information with right holders concerning infringed brands.

3. Do you regularly receive (if you are police or Customs) or provide (if you are a prosecutor) feedback on cases when they are prosecuted? If not, can you explain why?

1. Greece highlighted the need for feedback from prosecutors in order to improve the quality of investigations. Once a case is prosecuted, no feedback is provided by the prosecuting authorities to the police, as it is not required by law, and because there is no online system between the police and judicial authorities. A relevant legislative framework exists only for the Internal Affairs Service which investigates corruption cases. In these cases, feedback is provided in writing and at the request of the agency. In the future, and provided that there will be an online system in use at the Ministry of Justice, a relevant proposal will be made to receive feedback on police cases which are prosecuted.Portuguese Customs require feedback from prosecutors in order to ascertain whether the products are counterfeit, and the protocol exists according to legislation. GAC underlined the utility of exchanging case information at the post-judgment stage, which can be used to report to authorities including the EU Observatory. It was agreed that it is vital to raise awareness concerning the existence of working groups and organisations such as GAC, via press releases and public campaigns.Interpol underlined the importance of enhancing two types of communications -public communication and interagency communication - regarding lessons learned.Spain reported a lack of feedback from the prosecution. It was noted that this is a lost opportunity to foster a working relationship between disciplines, and a lost opportunity to give feedback regarding the cases themselves.A lack of communication on the behalf of judges was noted overall.Malta reported a certain level of cooperation in some cases, but in general, it is lacking – specifically in the information flow from police to Customs. Front line Customs officers work at the external border, and they do not have any jurisdiction to act inland. Customs cannot prosecute cases, because legal competence is assigned to the national police.In Greece, it is rare that information flows back to Customs and police from the prosecution.

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In France, there is a general level of communication when a case proceeds to court.It was noted that participants would like further training on cybercrime and IP technicalities.One group discussed the utility of adding Customs’ data and final decision data to databases, in order to share information.In Cyprus, following the decision of the Court, it is possible to share feedback about previous cases with the Customs and Police, in order to avoid some mistakes that could happen in the investigation for futures cases.In Portugal, the INPI publish final decisions on their institutional webpage. It is at the judge’s discretion to disseminate the final decision to ASAE.In Italy, the court generally disseminates the numbers of the criminal procedureonly.In Spain, the authorities must follow the instructions laid down by the judge and wait for the final decision. In Malta, after the decision of destruction of goods, Customs inform the judge that the procedure has been completed, and the file is closed.

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