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OBSERVATORY

The Observatory´s 2014 Regional Nordic Seminar on Enforcement

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The Observatory´s 2014 Regional Nordic Seminar on Enforcement Summary The Observatory´s 2014 Regional Nordic Seminar on Enforcement was held on 6th, 7th and

8th October in Copenhagen. The OHIM and the Danish Patent and Trade Mark Office

worked in cooperation to host the event, which brought together officers from Customs,

Police, State Prosecution and national IP offices alongside experts in copyright and Internet

IP crime, and Industry stakeholders.

The aims of the seminar were to consolidate information between Nordic-Baltic States law

enforcement officers, to share best practice models, to discuss specific questions on

regional cooperation, jurisdiction, and the challenges posed by IP infringement related

cybercrime, and to participate in workshops. The Observatory operates as a platform for

IPR enforcement and the concentrated training, discussion and networking opportunities

offered at the three day event aimed to strengthen working relationships in the Nordic

countries.

The cross-jurisdictional complexities of Internet enforcement and the necessity for EU

enforcement bodies to work together in order to combat transnational IP crime were

highlighted in presentations by Erling Vestergaard, Deputy State Prosecutor in Denmark.

Lars Underbjerg´s presentation (former Danish Police officer and currently working for

“STOP - Nordic Content Protection”) emphasised the need for the Police to present specific

technical information gained during Internet counterfeit investigations to prosecutors and

judges in a way that can be understood – so that the indicative findings of such evidence

can be used fully, when deciding cases.

Kenny Wright presented on the importance of IPR to society, economy, business and

consumers. He underlined the stark economic reality of counterfeiting as a rapidly growing

criminal act. Those involved do not care whom they hurt through the illegal production of

substandard and dangerous goods; they gain proportionally huge financial returns in the

face of low legal sanctions, which do not deter them from continuing their criminal acts. The

suggested financial total lost to the genuine economy is around USD 650 billion, and 2.5

Observatory Regional Seminars for Enforcers

Observatory Regional Seminars for Enforcers of 31

million lost jobs1. In order to attract investment at a national level from large multinationals,

it is important to show a commitment to the protection of IP rights.

The matter of lost tax revenue was discussed, and the possibility of pursuing IP cases on a

financial basis, with reference to the ECJ ruling that counterfeit commodities are subject to

tax.

Chris Vansteenkiste from Europol showed the tangible danger to Public Health posed by

fake automotive and electrical parts, fake pharma products and medicines, and foodstuffs

sprayed with illegal pesticides – a growing phenomenon. He explained Europol´s focus on

serious and organised crime and Intellectual Property Crime, the direct link between the

two, and the organisation´s Memorandum of Understanding (MoU) with OHIM, in addition

to interagency relationships with enforcement bodies including INTERPOL and ICE, and

the private sector. The European Cybercrime Centre (EC3), a Europol department, was

detailed and participants at the seminar were invited to join the Europol Platform for

Experts (EPE), the organisation´s secure enforcement experts´ platform.

Valerio Papajorgji from the OHIM’s European Observatory on Infringements of Intellectual

Property Rights, presented on its range of project-based work, training programmes,

working group meetings, and its modus operandi as a knowledge building and facilitator

platform for EU Enforcement, legislators and public and private stakeholders. Two

completed data-driven studies compiled by the Observatory on the perception of IP

amongst EU citizens and IP´s contribution to the EU economy, and an ongoing study on

the quantification on IPR infringements, were discussed alongside their methodology. The

presentation also focused on the Enforcement Database (EDB) and ACIST Database, with

the aim that participants at the seminar can use the information housed on these secure

tools during future national and cross-border investigations.

Eric Gastinel, OHIM Academy, introduced the OHIM IP Teaching Toolkit for Enforcement

Officers. The kit has been designed to be a readily accessible and practical tool which

focuses on basic concepts of EU Law for enforcement officers, an overview of IPRs and the

basics of IPR enforcement.

Michael Poulsen from the Danish Trade Mark and Patent Office underlined the need to

raise public awareness as a whole, so that informed choices can be made by consumers.

1 ICC study; http://www.iccwbo.org/Advocacy-Codes-and-Rules/BASCAP/BASCAP-Research/Economic-impact/Global-Impacts-Study

http://www.iccwbo.org/Advocacy-Codes-and-Rules/BASCAP/BASCAP-Research/Economic-impact/Global-Impacts-Study

http://www.iccwbo.org/Advocacy-Codes-and-Rules/BASCAP/BASCAP-Research/Economic-impact/Global-Impacts-Study



The reluctance of the private sector to divulge information about their products and the

admission that they have been counterfeited could be addressed, potentially, on an

Industry basis – for example, a group of pharmaceutical companies working together with

Enforcement.

The message from representatives from the private sector (Rettighedsalliancen) highlighted

an increasing global market demand for counterfeit goods and pirated content, for a

number of economic and social reasons. Additionally, the methods used by counterfeiters

are becoming increasingly sophisticated, in order to avoid detection and conviction. The

answers raise public awareness so that consumers can make informed choices about the

goods they are purchasing: Rettighedsalliancen´s findings showed that 79% of consumers

moved away from an illicit site once they had viewed a pop-up stating that the site housed

illegal content. Increase cooperation amongst Enforcement; share best practice models

and share data on seizures and known criminals: work together to gain knowledge and

avoid duplicity.

The workshops highlighted the need for increasing regional cooperation, including regional

seminars, points of contact and regional databases. They underlined the need to make use

of Europol, OHIM , Eurojust, INTERPOL and other channels for cooperation requests. The

necessity for stronger and harmonised legislation - for example, for the gathering and

admission of evidence - was asserted by all participants, alongside improved resources

and a greater political will from organisational management. The majority of feedback

emphasised a lack of specialised national IP Cybercrime teams, containing members from

Customs and the Police in order to enhance cooperation - and a way of presenting

information to court so that its indicative findings can be understood by judges.

The conclusion from the seminar was that counterfeiting is not a battle to be won, but a

battle to be fought. And it must be fought on an international scale – through cooperation,

communication, and with suitable legal and technical tools.

The event was a certain success in terms of its aims and its outputs – the participants,

speakers and organisers agreed. The contacts, ideas and experiences shared will benefit

all stakeholders, enforcers on the ground and enforcement organisations in the ongoing

and increasing battle against global IP crime.

LIST OF PARTICIPANTS



Michael Poulsen DKPTO [email protected]

Erling Vestergaard Danish Prosecution,

SØIK

[email protected]

Karina Degn Ringgaard DKPTO [email protected]

INTERNATIONAL SPEAKERS

Chris Vansteenkiste Europol [email protected]

Kenny Wright DKPTO [email protected]

Phil Lewis UKPTO [email protected]

Monica Pop Romanian Prosecution [email protected]

Jesper Knudsen Brand IT [email protected]

DANISH SPEAKERS

Jørgen Blomqvist University of Copenhagen [email protected]

Lars Underbjerg STOP - Nordic [email protected]

David Würgler STOP - Nordic [email protected]

Maria Fredenslund Rettighedsalliancen [email protected]

SWEDEN

Brita Wallström Police [email protected]

Gela Öhman Police [email protected]

Helena Grünwald Prosecution [email protected]

Per Holgersson Customs [email protected]

NORWAY

Elisabeth Nettum Customs [email protected]

Viggo Elster Customs [email protected]

Anne-Catherine

Gustavsson

Police [email protected]

Hedvig Bengston IP Office [email protected]

FINLAND

mailto:[email protected]









https://webmail.dkpto.dk/owa/redir.aspx?C=8JtqKvM2Q0u1ioRuMEmK_fE_Ah43kNEI1ULnd4bhNt-PguQjPKSZaD1C1zAHvlDBxF7mtwzzNh0.&URL=mailto%3aacg%40politiet.no

https://webmail.dkpto.dk/owa/redir.aspx?C=Ac6gudsRFEWZlDxqcaan0w5bk4INaNEI1SuB_F05rP034y70bL-hY0VaNuyxTlbFlwaClXzAFxw.&URL=mailto%3ahbe%40patentstyret.no



Riikka Pakkanen Customs [email protected]

Marian-Vlad Jecu Police [email protected]

Kukka-Maaria Kankaala Prosecution [email protected]

DENMARK

Jørli Bak-Hansen Customs [email protected]

Jeanett Nielsen Customs [email protected]

Maria-Victoria Viereck DKPTO [email protected]

Lene Dahl Prahm DKPTO [email protected]

Janne Wellendorf DKPTO [email protected]

Henrik Vestergaard Danish Police, SØIK [email protected]

Michael B. Larsen Danish Police, SØIK [email protected]

Søren Bech Jensen Danish Police [email protected]

ESTONIA

Sigrid Nurm Prosecution [email protected]

Maris Orgusaar Police [email protected]

Ülle Viisak Customs [email protected]

LATVIA

Egīls Misītis Customs [email protected]

Dainis Steinbergs Prosecution [email protected]

Anete Amolina Police [email protected]

LITHUANIA

Algirdas Narbutas Police [email protected]

Laura Brėskienė Customs [email protected]

Jolita Kančauskienė Prosecution [email protected]

ICELAND

Guðlaugur Ómar Tómasson Customs [email protected]

POLAND












Ewa Preneta Prosecution [email protected]

Alena Myrda Police [email protected]

Alicja Ceglaz Customs [email protected]

SERBIA

Branka Bilen-Katic IP Office [email protected]

Vera Despotovic Market Inspectorate [email protected]

Mikailo Tijanic Police [email protected]

OHIM

Valerio Papajorgji OHIM Observatory [email protected]

.eu

Eric Gastinel OHIM Academy [email protected]

Trine Dancygier OHIM Observatory [email protected]

https://webmail.dkpto.dk/owa/redir.aspx?C=C6fp9lOd6UKEhfm9zsdDGIlkPyN-WdEIy0xRfcmw9J0XMe7cQq_2AjCbj_EEoV8efSLlqVww-PQ.&URL=mailto%3apoczta%40podkarpacka.policja.gov.pl







Day One Michael Poulsen from the Danish Patent and Trade Mark Office welcomed everyone to the

second Nordic seminar with participants from Police, Customs, Prosecution and IP Offices.

He underlined the necessity to involve all countries via a transnational approach so that

future cases can be addressed in coordination. He urged all participants to take up the

excellent opportunity to network at the seminar and to forge contacts which can be used in

practice during investigations. Eric Gastinel, OHIM Academy and Valerio Papajorgji, EU

Observatory, welcomed all participants and underlined the goal of the event, which was to share knowledge and best practices, to learn and to network. The participants

introduced themselves around the room, and the three day programme focusing on

speakers and workshops commenced.

Kenny Wright started the presentations. His background in IP crime with the Hong Kong

Police spans more than 20 years, and he now works with the Danish Patent and Trade

Mark Office on international projects regarding IP crime. His presentation focused on the

importance of IP rights to society, economy, business and consumers.

WIPO defines Intellectual Property as “creations of the mind” and includes copyright and

related rights that are used to protect music, plays, movies, the arts; patents are used to

protect inventions; industrial design rights are used to protect the shape of a product. Trade

marks are used to protect the signs which are used to identify the goods and services of a

company, denoting quality, and geographical indications are signs that are used to protect

goods from a specific geographical region, such as olive oil from Tuscany. Like all property,

the owners of that property are entitled to protect their property, and this right is enshrined

in international legislation. It is possible to use multiple IP rights to protect a product.

So why is IP so important to the global economy? A US study in 2012 highlighted the

economic importance of IP, followed by the OHIM/ EPO´s IP contribution study in 20132.

Twenty seven Member States´ IPR-intensive industries were covered in the OHIM study,

and the findings show that 321 out of 615 industries3 are IPR-intensive and they provide

56.5 million jobs in the EU economy; this accounts for 26% of all jobs in the EU and a

further 20 million jobs which are linked indirectly. In short, 39% of all EU activity involved

2 IPR-Intensive Industries: contribution to economic and performance and employment in the European Union, September 2013. https://oami.europa.eu/ohimportal/documents/11370/80606/IP+Contribution+study+PPT 3 Figures taken from the period 2008-2010.

https://oami.europa.eu/ohimportal/documents/11370/80606/IP+Contribution+study+PPT



IPR-intensive industries and 90% of all EU exports are from IPR-intensive industries,

totalling EUR 4.7 trillion in production every year: IPR-intensive industries are vital to the

success and growth of the EU.

Why is Organised Crime so attracted to IP? In 2013, almost EUR 800 million in counterfeit

goods was seized. Customs only have the capacity to inspect 2% of all border traffic goods.

In 2009, a study published by OECD4 involved 36 countries with the aim of identifying the

threat posed by counterfeiting and piracy to the global economy. The study found that the

value of global pirated and counterfeited goods is EUR 200 billion5 every year, second only

to the narcotics trade. It is important to note, however, that this study only focused on

cross-border counterfeiting and piracy – the figures do not include goods manufactured and

sold internally, nor do they include digital piracy via the Internet. Alarmingly, these figures

only mirror a fraction of the true figure of counterfeit goods and the suggested total of

money lost to the genuine economy is around USD 650 billion, and 2.5 million lost jobs.

Saliently, counterfeiting is a low risk and high profit crime. Law enforcement, in general,

does not focus on IP crime. There is little motivation, low resources and small IP crime

units. Awareness is being raised, slowly, but governments do not prioritise IP crime.

Additionally, the sanctions are very low and jail time unusual for a crime that is serious and

organised in structure.

Criminals do not care about Public Health, they are interested in making money and will

replicate any product that can make them money, regardless of its impact on health,

including hazardous electrical products, fake alcoholic drinks, spare parts and children´s

toys, and even everyday foodstuffs like milk are tarnished with added fatal ingredients.

Many counterfeit pharma goods and medicines hold very little active ingredients, or none at

all – and many contain highly dangerous extra ingredients. WHO suggests 10% of

pharmaceutical products in developed countries like the EU are counterfeit, and up to 30%

in developing countries: 50% of all internet pharma goods bought are fake. Europol focus

on locating and seizing fake foodstuffs - and via Operation OPSON in January 2014 alone,

enforcement bodies across the world seized 1200 tonnes of substandard food goods.

To conclude – IP is key to our society, it promotes innovation, progression and

advancements in vital industries including medicine and engineering. IPR benefit the global

4 http://www.oecd.org/industry/ind/44088872.pdf and www.oecd.org/industry/ind/oecdprojectoncounterfeitingandpiracy.htm 5 USD 250 billion.

http://www.oecd.org/industry/ind/44088872.pdf

http://www.oecd.org/industry/ind/oecdprojectoncounterfeitingandpiracy.htm



economy. However, due to its importance, the IP world attracts organised crime, who steal

money from economies through piracy. Counterfeit goods pose a serious and growing

threat to the health and safety of the Public, whilst organised crime poses a huge threat to

our societies in general.

Michael Poulsen asked in what way has awareness in governmental organisations been

heightened? Kenny Wright answered that, in the past, the biggest challenge was to

harness Police interest in counterfeit and work alongside them. Increasingly, there are

specialised IP crime units in countries – but they are small. Additionally, there is increasing

legislation in order to protect IPR. There are slow improvements but, for example, the

power to seize assets and the implementation of tougher sanctions are needed. However,

raising consumer awareness is of equal importance - there is a demand for counterfeit

goods - so that buyers can make an informed decision. Industry and government

organisations must work together. Michael replied that many private industries, especially

the pharmaceutical industry, are reluctant to admit their goods are being faked due to the

possible loss of public faith in their goods. However, he noted that at Industry level, a group

of pharma companies has worked together in order to support enforcement activities as a

group.

Finnish Customs stated that it is necessary to raise awareness within enforcement units –

at present, it is difficult to interest Customs officers in a seizure of counterfeit goods, in

comparison to drugs. It was suggested that the private sector could help in raising

awareness with Customs officers through lobbying and funding awareness campaigns.

Monica Pop, head of the Romanian IPR Crime Unit, presented on IPR enforcement

legislation and principles. The unit was established, with political backing, in 2006 to

coordinate efforts against piracy and counterfeiting - including the delivery of enforcement

seminars to private companies - and is based at the Prosecutors´ Office attached to the

High Court of Cassation.

She underlined the existing legal tools including international conventions and treaties,

directives, Customs regulations, TRIPS (1994), standards and the European Court of

Justice case-law, used in the application and the harmonisation of IPR legislation -

including adequate border measures. It must be noted, however, that in some Member

States, it is not possible to act ex officio, and that some cases are lengthy, and not entirely

compatible with the TRIPS agreement. TRIPS states that available remedies should

include criminal procedures, including imprisonment and monetary fines, and the seizure

and destruction of infringing goods.



In the light of TRIPS, some countries have separated civil and criminal actions involved in

infringements – in order to determine whether the activity is on a commercial scale. After

the implementation of Enforcement Directive 2004/48/EC, it is important to understand the

civil provision in order to better harness the sphere of protection it affords, including the

ability to ask for a lump sum of damages on behalf of the right holder. In Romania for

instance, it is possible to pursue the counterfeiter for three times the amount of the

relevant, legitimate licence for the rights. During a civil procedure, it is possible for the right

holder, with the court´s support, to secure information about banking and distribution

channels of the counterfeiter. During a criminal investigation, the Police will pursue all such

information automatically.

Notably, it is important to train Customs officers in the IP right that has been infringed, and

the scope of the protection of each IP right, in order to simplify their investigations – the

infringement of, for example, a combination of trade mark, shape and colour protected

design. Previously, it was the commonly accepted view that counterfeit goods could not be

subject to a tax evasion investigation – however, a 1998 ECJ ruling stated that, due to the

nature of the commercial nature of counterfeit goods6, they are subject to tax7.

In Romania, ex officio actions - without an initial complaint made by the right holder - are

normal in criminal investigations, if there are commercial grounds. These include the

investigation of bank documents and distribution routes, seizures, and the process of

pursuing damages. However, the investigation is closed down if there is no subsequent

support on the behalf of the right holder.

Monica Pop underlined the challenges facing Enforcement in all EU Member States,

including the scene of the crime – the Internet. In many cases (for example, online piracy

via illegal downloads of mobile phone ring tones, which violates copyright), electronic

evidence is stored outside the investigating country and involves foreign ISPs and servers.

Furthermore, the standards for storing such evidence vary greatly in each country, and

officers must act almost immediately in order to capture such evidence.

Henrik Vestergaard, Danish Prosecution, SØIK, presented on recent successful Danish

IPR investigations, including a case of illegal broadcasting. Notably, the actor was a young

man who held the view that all content on the Internet is free, who was working alone with

6 (in comparison to narcotics or forged money) 7 ECJ Case C 3/97, Judgment of 28th May 1998, Goodwin and Unstead (C-3/97, ECR 1998 p.1-3257).



only one powerful computer – and not for commercial gain. His motivation was based on

his opinion that large organisations should not make money from content on the Internet.

In another case, a copyright case, involving furniture sales from a UK registered web

company, Henrik underlined the transnational nature of IP criminal activity, including links in

China, Italy, Denmark, Estonia, Germany and the UK, and bank accounts in Spain in order

to add distance to the money generated. The actors involved were an ex-Danish Police

Officer and a former Danish biker gang member. One of the main challenges in the case

were the differences in Copyright Law between Denmark and the UK. It was noted by

Professor Jørgen Blomqvist (University of Copenhagen), however, that the level of

protection for copyright is being harmonised in the UK. He explained that the right of

distribution and of territoriality is the question in hand – the criminal action of offering for

sale the infringing goods carried out in a State means that the action can be prosecuted in

that State. Chris Vansteenkiste, Europol, added that PIPCU (City of London Police) had

worked alongside the progression of a draft bill in the UK in order to harmonise the law

regarding the years of protection, so that there will not be a loophole for criminals who plan

to register websites in the UK for this very purpose.

Maria Fredenslund, Rettighedsalliancen (an interest organisation of 85,000 members who

are producers and distributors of content) presented on enforcement matters from a right

holder´s perspective. Their stakeholders house their content online and find it difficult to

enforce their rights online. Notably, in the past, consumers and Press believed it was unfair

to enforce copyright regarding this content. The organisation strategically made the distinct

difference between consumers and criminals – and does not enforce against consumers.

Rettighedsalliancen involve the Media, advertisers, search engines and stakeholders to a

dialogue forum in order to discuss the subject of enforcement voluntarily.

The organisation monitored pirate sites and peer to peer services involving 3.8 million

downloads of 18 movies during one month in 2014. Notably, many Danish movies are

downloaded from Russian ISPs. Once the movie was offered for sale legally, the illegal

download figures rose massively, which offers a different perspective on the suggestion

that once legal offers are made available, illegal activity decreases.

The overall accepted view in Denmark is that it is not possible, either by civil or criminal

sanctions, to enforce rights on Internet content. All music is released on pirate services –

which means that there is always a free illegal offer for new music. Additionally, traditional

crimes such as forged money and credit card fraud, offer much lower returns that pirated

goods and counterfeit pharma goods.



How can the Police act against an illegal act such as online piracy? The criminals are

clandestine, faceless and protected through anonymity – and are able to move their servers

almost immediately to another State if necessary. In The Pirate Bay case, the Police knew

those involved and seized the servers – minutes later, the servers were active again. Jail

convictions and huge civil damages have not stopped the activity nor deterred the actors.

In Denmark, it is possible by court order to approach the ISP organisations to block access

for Danish Internet users. However, it is easy to circumvent the blocks, so this remedy is

ineffective in itself but it serves as a communication tool with the users. Instead of

appealing to the morality of consumers, the organisation attempts to make it easier to use

the legal offers available and educate them.

Valerio Papajorgji presented on the EU Observatory, which is a network covering 28

Member States, 51 private sector associations, public authorities, national IP offices (which

act as the national points of contact), six associations representing consumers and civil

society, the European Commission (DG MARKT, DG TAXUD, DG Trade and DG ENTR),

10 members of the European Parliament who provide advice and guidance, and other EU

and international organisations including Europol, Eurojust, EPO and WIPO.

He detailed the project-based Work Programme for 2014, which builds on the work

delivered in 2013. The EU Observatory has overseen the completion of two main studies,

“IPR Intensive Industries - Contribution to Economic Performance and Employment in the

EU” (OHIM and EPO), and “European Citizens and IP: Perception, Awareness and

Behaviour” (OHIM), as well as managing an ongoing study on the quantification of IPR

infringements. Additionally, an OHIM-Europol Joint Situational Report on Counterfeiting in

the EU is in progress, which looks at the modus operandi of counterfeiters – its

methodology is based on a mix of qualitative data (contributions provided by the law

enforcement agencies, private sector companies and associations, etc.).

Most IPR-intensive industries are intensive in more than one Intellectual Property Right.

Furthermore, 39% of all economic activity (GDP) is created through IPR-intensive

industries, which pay more than other industries, with a wage premium of 40%. Notably,

88% of EU imports consist of products from IPR related industries and 26% of exports are

from IP-intensive industries.

The IP Perception Study focuses on the state of awareness and understanding of IP

amongst European citizens; how they value IP and what messages could be used to more

effectively help them understand the value of IP. Notably, European citizens value IP as a



fundamental element of the economic and social system, but on a personal level they

justify certain infringements, especially amongst the younger generation.

In 2013, the Enforcement Database (EDB) went live. It was funded and created by OHIM in

order to facilitate communication between right holders and enforcement authorities, with

the ability to identify, track, trace and increase detentions of counterfeit goods. The private

sector is able to share information about their products (in their language) with enforcement

organisations including Police authorities, and it is a free service. To date, more than eighty

companies have submitted data, including L´Oréal. The secure tool allows enforcement

authorities to inform right holders about suspicious cases and right holders are able to

create alerts for enforcement authorities. A Memorandum of Understanding has been

signed with WCO in order to link the Observatory´s EDB with their IPM (Interface Public-

Members) secure online tool.

The ACIST database is a tool via which data about seizures across the Member States is

stored, analysed and reported, using a common standard. The information is collated in a

harmonised method, so it can be aggregated and rolled out to give insight to politicians

about the true extent of the problem. Full deployment of the ACIST and the EDB, alongside

Europol´s secure network and integration with COPIS (following the completion of an e-

pilot) will make the tool accessible to all companies who wish to use it.

The Observatory manages a Knowledge Building programme in collaboration with other EU

agencies, including regular and jointly held OHIM-Europol conferences which include

speakers and participants from Police and Customs. It is foreseen that there will be future

training for prosecutors in conjunction with CEPOL and further seminars involving

prosecutors and judges, with participation from Eurojust and the OHIM Academy. The

Coordination Group meets twice a year in order to avoid duplication of efforts and focus on

collaboration.

The Observatory´s aim is to develop a new narrative for Intellectual Property, supported by

evidence and facts, with a positive and inclusive vision of IP and its protection – which will

provide evidence-based knowledge for policy makers and stakeholders. The IP

Contribution Study will be repeated on a regular basis; methods to define and measure the

economic impact of counterfeiting and piracy will be harnessed, and studies to improve the

understanding of emerging issues in IP will be carried out. Campaigns on an EU, national

and regional level, including a presence on Twitter and Facebook will be launched, and the

creation of a forum for the younger generation, via which they will be able to exchange

ideas linked to IP matters.



Workshop Questions and Feedback Day One

1. Outline current national and regional IPR cooperation.

2. What are the main challenges for a stronger regional IPR enforcement cooperation?

3. Identify key areas which are suitable for enhanced regional IPR enforcement

cooperation.

• There is a level of national cooperation in Sweden, Estonia and Denmark. Notably,

all Police were interested in investigated IPR crimes. Denmark have the strongest

sanctions (up to six years´ jail time). In Finland and Norway, Customs and Police

generally work separately.

• There is a lack of knowledge which poses the real problem, especially in the Police;

there is a lack of resources, and the Police are instructed to focus on the national

target, which is drug trafficking. Furthermore, there is a lack of interest at a political

level.

• The key areas to consolidate are IPR working groups (akin to the Swedish model)

and national strategies. In Finland, Customs and Border Police work together, but

not on IP crime.

• Latvia has dedicated prosecutors for IP crime, and their specialised knowledge is

vital.

• Common databases would be of great benefit.

• The Customs Nordic Cooperation Network meets annually and includes Iceland,

Finland (and has also invited Estonia and Europol).

• Regional cooperation poses big challenges in practice - to gain legal assistance

from another country involves bureaucracy, takes time for the officer to find and

approach a national contact point. Often, finding the correct contact and a proactive

contact, is the biggest hurdle. Language differences are challenging, on a practical

level.

• It would be advantageous to have national point of contact – a contact person for

the OHIM regarding enforcement as well as trade mark matters.



• There is a lack of networking in general and events such as this seminar are

important. There are Nordic conferences but not sufficient proactive regional

cooperation.

• The lack of money and lack of means inhibits opportunities for contact.

• Intelligence sharing through Europol is needed.

• There is no common framework - different legislations exist in different countries,

and differences in implementation.

• Do stakeholders act?

• Denmark is in the process of compiling contact points for IP investigators in different

districts.

• In order to establish workable cooperation between regional authorities, it is

necessary to find a way to share the details of the complaints.

• Denmark has strong national cooperation between enforcement and other related

institutions. The Police work alongside Europol and IOS (‘In Our Sites’ Action). The

ministerial network meets twice a year to discuss current IP matters. Meetings with

stakeholders involve right holders and discuss specific matters e.g. Internet crime.

• Denmark has web pages informing conpanies how to report a complaint to the

Police.

• Estonia is a small country with large transit numbers to Latvia and Finland, but with

few human resources – when working in cooperation, units can share human

resources, risk analysis etc. Police and Customs do not work closely together and

this poses problems for prosecutors. Estonian investigations focus on national

activity only. There are no webpages to educate consumers in Estonia, only official

Patent Office pages.

• Norway is inspired by the Danish example – the Ministry of Trade and Industry has

given the Norwegian IPO support to create an attractive webpage in order to

educate consumers, which will be completed in January 2015 involving all IP

authorities. The Ministerial Network aims to increase authority members and hold

regular meetings from January 2015.

• In Latvia, the State Revenue Service website offers official and specific information

only. In terms of regional cooperation, there are only seminars. The government

suggests that there should be more cooperation at a national level – but most

organisations are working so busily at an organisational level only.



• Serbia has a good national level cooperation with Market Inspection and the Patent

Office, who work jointly on a case by case basis in practice, although there is no

official protocol yet, but it will soon be finalized. Regionally, there is good

cooperation with INTERPOL.

• It is vital to raise awareness with the General Public – IP crime is a serious crime

which affects the lives of workers and the average person. It is increasingly

important to raise awareness amongst the younger generation, amongst whom

knowledge is very low.

• Danish Customs has developed strong cooperation with other ministries. The main

challenge is to harness support within each organisation in order to prioritise

cooperation with other parties, nationally and regionally.

• Sharing best practice is extremely helpful.

• Norway´s ministry is pushing towards network cooperation but other parties have

little resources so there are some barriers in practice.

• Serbia highlighted the need to share information with neighbouring enforcement

organisations regarding cross-border crime – commonly, servers sits in Croatia or

neighbouring States, and the goods are sold within Serbia.

• Feedback from Police officers at the seminar suggests that there is also a current

lack of technical knowledge held by judges deciding on Internet IP cases, and a

need to address the issue.

Day Two

Erling Vestergaard, Danish Deputy State Prosecutor, opened the second day of the

seminar with a presentation on Internet governance and functionality. He emphasised that

it is vital for enforcers to understand Internet architecture, its basic functionality and

technicality, in order to be able to apply enforcement and criminal procedural rules.

He explained concisely that the Internet is a decentralised medium of distributed

communications which works via a router and was first functional in 1983. There are only

three kinds of information contained on the Internet – account information, traffic

information (sender, receiver, packet route and time) and content information. Erling

highlighted the reality that anything on the Internet can be accessed both legally and

illegally. The Internet is simply a tool - free, open, offering anonymity - and it is 100% man-



made. It offers a multitude of challenges including the involvement of criminal activity,

which is rapidly moving online. Societies are changing very quickly and life is facilitated via

electronic services, with the most notable explosions in Internet activity plotted in Asia

Pacific and Northern America within the next five years. In Denmark, for example,

government communications to citizens will exist only in electronic form, from November

2014.

The Internet Corporation for Assigned Names and Numbers (ICANN) runs the Internet. It

was established in 1988 as a semi-private organisation under the US Department of

Commerce. In 2006, it became a private organisation and the US Government has no

control over what ICANN decides. ICANN´s Board of Directors (people elected from the

Internet Industry) is autonomous and acts, at times, against the wishes of the US

Government, although ICANN sits under US Law.

Investigations on IP Internet crime focus on locating the actors by tracing the route of

communication via the layers of technical equipment used, the ISP, the individual IP

address (which can identify the place of the user using the correct time code/ UTC

Coordinated Universal Time Code) and a DNS server which locates the hosting server. It is

important to look at the Hypertext Markup Language (codes which reveal construction) and

FTP8 (file transfer protocol) which shows which files have been accessed by the user,

including peer to peer sharing of information. However, implementation of The Onion

Router (TOR), means it is impossible to trace the user. This tool is legal, originally

constructed by the US Navy and was later released for public use. Any kind of criminal

activity can exist on this network.

In Denmark, if the case involves a static IP number, the ISP must give this information

without a court order. If the case involves a dynamic IP number, the Police must approach

the court in order to obtain information about the number, and this takes time which can

prolong an investigation.

Professor Jørgen Blomqvist, University of Copenhagen, former WIPO, followed with a

presentation on “Copyright in the Digital World”. He explained that the protection of

creations of the human mind has existed for several hundred years and started in the book

printing world. In essence, copyright has followed technology, and the law has followed it:

existing legislation is reactive, not proactive. There are international treaties and legal

8 SMTP - Simple Mail Transport Protocol; HTML – Hyper Text Markup Language; HTTP - Hyper Text Transfer Protocol (transfer route); FTP – File Transfer Protocol.



responses in order to cover content housed on the Internet, which extended existing

copyright legislation. Internet language is simply a different form of human expression.

Digital storage is reproduction, including transient storage of content, and is subject to

copyright. Public communication of copyright content requested on a personal level (i.e.

“pull communication”, requested communication via the Internet) is subject to Copyright

Law, because it has been made available to the Public. In this way, the protection afforded

is similar to distribution rights, because the information has been made available to

individual members of the Public. In the US, physical content such as a book ordered via

the Internet is content also covered under Distribution Law.

However, there are limitations and exceptions applicable to the digital world (WCT, Article

10 and WPPT, Article 16) due to the nature of the availability of online content; for example,

it is not permitted to pass on downloaded musical content to another Internet user, in

contrast to the possibility to sell a book, once paid for. Furthermore, the circumvention of

technological measures must be countered (WCT Article 11, WPPT, Article 18) and rights

management information must be protected against deletions and tampering (WCT Article

12, WPPT Article 19)9.

In short, the available laws do not have full effect on content use, due to the nature of the

availability of Internet content. It is necessary to clarify national law on contributory or

vicarious liability and necessary to implement notice and take-down procedures. It is also

important to implement adequate provisions regarding service provider liability, at a

national level, and other possibilities including inter alia, warning messages, injunctions

against providing access to certain sites, and an obligation to furnish information – but

there must be a due process of law.

Practical responses to the issue include awareness raising, reasonably priced and

accessible legal alternatives, the application of effective anti-piracy methods to survey the

market, and the establishment of a dialogue with service providers – or the possibility to

take legal action against them. The application of alternative business models including the

“Gillette Model” and “TDC-play” regarding music content have been used by companies

regarding copyright.

9 This is mainly applicable, for example, to libraries, so that content from outdated mediums can be transposed in order to protect the content for future generations – it is not applicable to individuals who wish to reproduce content in terms of general piracy.



It is important to note that, without such safeguards, the future of copyright protection will

be left to the market to determine. If copyright is not respected, the practical consequence

will be the termination of DVDs and downloadable music - films will be made available for

public consumption only in cinemas, and music limited to entertainers´ touring concerts.

Lars Underberg, a former Danish Police officer in the National High Tech Crime Centre,

now working with STOP, presented a case study on card sharing. He explained how prolific

the problem is in Sweden, followed by Norway and Poland. Viewers use a Dreambox which

extracts decryption signals, then transmitted to a server. The required channels can

subsequently be watched by the decryption of the signals received. The Danish Law on

Radio and Television prohibits this act with a fine and up to 6 years in jail under Civil Law.

The level of fines and taxes demanded by the authorities are substantial. Via Nordic

Content Protection, informants can act anonymously. Investigatios start by identifying the

server and IP address, using automatic tools such as Python, and identifying open portals

(via IMAP) such as Dreambox, the dates and times that the actor has been online, and in

which State – indicated by the server address. The latter point is important when

determining in which State investigation must be carried out, and whether cross-border

enforcement is involved. This simplifies the investigation process and it is important to

underline that no hacking has been carried out, nor court orders pursued in order to attain

this level of information. However, continual investigation is required, as evolving online

activity will change the relevant evidence, including the server address etc.

The Police do not have the resources to manage all the cases which present themselves,

even split between local and national Police. It is hoped that guidelines for the Police will be

formulated in the near future, in order to offer advice regarding procedures in such

investigations. The Police can act via search and seizure orders, disclosure of evidence

orders, economic investigation and attainment of card holders information. The Police and

forensic investigators make the vital link between the IP address attained and the physical

person using that IP address, via house searches and suspect interviews and locating the

router. Notably, the technical information can change hugely between the time of the

Internet investigation and Police house searches – but once the server is found, it is

possible to determine which other servers are connected to the original server, and thus the

others who have been card sharing. The majority of cases are presented as economic

crimes, and by Police officers who do not have a high level of technical knowledge, which

poses a substantial practical problem.



The server owners can be charged in solidum. Claims for damages are based on the

available channels, period of use, and number of clients. Danish legislation dictates that the

Dreambox user owner is taken to court to secure the confiscation of the Dreambox. During

the five minute court hearing, if there is any doubt, the judge will order that a civil claim

must be pursued. Importantly, under recent Swedish Law, it is illegal to be a customer of

such an illegal offer, because there has been such prolific card sharing.

The presentation concluded with an address of the problems posed by Internet crime – it is

a borderless crime, facilitated by computers, with links to serious and organised crime, with

high profits, little human resources within investigative departments, and little focus on IPR

investigation. There must be a cooperation between technical and regular investigations,

and between the private and public sectors.

After lunch on the second day, Erling Vestergaard presented on Internet jurisdiction and

cross-border challenges, many of which arise when the action is illegal in one State, but not

in another. For example, the court ruling10 in the Dow Jones & Co. Inc. v Gutnick ” case

concerning the online edition of Barrons Magazine on the 28 October 2000, stated that

there was only jurisdiction where defamation has been received and substantial damages

will only be awarded if the claimant has a reputation to protect in that jurisdiction. This has

massive consequences in an age of international communications, where Media (including

newspapers) is available online and accessible across the globe.

The Permanent Court of International Justice, Judgment no.9 of September 7th 1927, SS

Lotus case, declared that a State “ may not exercise its power in any form in the territory of

another State” – acts of execution cannot be exerted outside the borders of that State.

Article 10 of the Cybercrime Convention 200111 states that copyright infringement is subject

to jurisdictional rules (although trade marks are not specifically covered) and minimum rules

about Internet investigations and minimum criminalisation (for example, copyright piracy)

are addressed. The European Commission advises that all EU members should be

members of the convention.

Article 22 states that a country should have jurisdiction over a crime that has been

committed in its territory (both territory of origin and territory of effect), committed by one of

its nationals, if the offence is punishable where it was committed, in addition to the principle

10 Dow Jones & Co. Inc. v Gutnick case, the High Court of Australia, 10th December 2002. 11 http://www.coe.int/t/DGHL/cooperation/economiccrime/cybercrime/default_en.asp

http://www.coe.int/t/DGHL/cooperation/economiccrime/cybercrime/default_en.asp



of exterritoriality. There should be jurisdiction if extradition is refused based on nationality.

It is important to note that the Danish Criminal Code, Article 9a, states that Denmark only

has jurisdiction if the (text, sound or picture) material has a special connection to Denmark

(for example, movies with Danish subtitles or advertising in Danish language). This notion

can be expanded in essence to denote that the country that has the most interest to

prosecute, should take jurisdiction.

However, if the perpetrator acts in Finland, has Spanish advertising, the server is located in

Iceland, with an Internet node in the UK with users in Spain – where is the competent

court?

The Pirate Bay case involved torrent sites and a tracker, which allowed a quicker rate of

traffic (for both uploads and downloads). The site itself did not host any parts of the

transferred files. Their disclaimer was that the server contained only torrent files and that,

“the persons behind The Pirate Bay cannot, therefore, be held responsible for the material”.

On 17th April 2009, the First Instance Court ruling stated that the crime had been committed

in the territory when the information has been made available in the language spoken in

that country, and that the servers hosting The Pirate Bay website and the tracker were

located in Sweden. The Second Instance Court ruling on 26th November overruled the first

point but upheld the second point – the location of the server. To conclude, strong

international cooperation and dialogue should determine the country best suited to

prosecute owing to the most links to the material or action.

Responses from the floor stated that Finland and Latvia have legislation which enables the

Police to access files through crossborder hacking. In Estonia, a prosecutor´s licence and

Police request is required. Romania uses channels of mutual assistance to search in other

jurisdictions, and uses court orders in order to intercept.

Jesper Knudsen followed with a presentation on domain name challenges. He explained

the huge rise in extensions in 2016 - from 280 first level extensions before 2013 to more

than 750 extensions.

Domain name strategies are vital to brands because their domain name(s) is the only way

to protect their brand online, and their online presence. A main obstacle is that at CEO

level, the majority of management do not understand the importance of online and new

technology, and the need to budget for domain names each year - because online sales

will continue to increase dramatically each year.

Domainers (hijackers) monitor trade mark databases in order to register desired domain

names, more so than the brand owners themselves – and are funded by Russian, Italian



and Chinese organised crime groups. It is big business for the hijackers and costly for the

brand owners, who are forced to make expensive investments or pursue online

enforcement. The country extensions can be bought up in those countries in which there is

commercial value, for example, where that brand is sold or some of their sub brands of

their products are sold. All registrars must follow the Uniform Domain Name Dispute

Resolution Policy but notably, registrars could act as hijackers.

The floor asked about the new top level domain names indicating country, and it was

explained that the owners could move outside that country´s jurisdiction, but would need to

make an application to move.

Workshop Questions and Feedback Day Two

1. What are the main challenges for IPR enforcement on the Internet?

2. Does Enforcement need new and improved legislative or technical tools?

3. How can IPR Enforcement benefit from the establishment of Europol´s EC3 and

national Cybercrime centres?

(N.B. EC3 - focuses on three main issues - child abuse, hacking and online fraud. It

does not cover IPR infringements.)

• Denmark replied that technical knowledge on IP Internet crime is dispersed, not

centralised - it would be beneficial to work in teams of expertise. There is often a

problem in the presentation of the final report to court which comprises technical

evidence and general investigative evidence – and the ability to present the

evidence in a manner so that the court will understand it.

• Estonia stated there is a issue with current legislation regarding jurisdiction, when

looking at the location of servers.

• Estonia also highlighted the lack of specialised officers. Police officers might not

know what should be documented and photographed in order to produce concrete

evidence. There are no specialised officers in IPR crimes. There is a new

Cybercrime unit but no specialized IPR unit. An investigation for money laundering

could be placed under financial crimes, but if there is an Internet counterfeit case, it

might not sit in a team with specialised IP officers.

• Finland agreed there are issues with current legislation and a need for stronger

sanctions – the current maximum punishment is two years, so the Police do not



have the powers to apply certain investigative techniques (for example, phone

tapping) due to the low sanctions available.

• In Finland, the High Tech Crime Unit deals with IPR crime. Customs have the same

powers of investigation as the Finnish Police. There is a need to raise awareness

amongst Police officers regarding technical tools such as whiteBULLET.

• Officers highlighted obstacles on a basic, practical level – in Denmark, if an officer

needs to access Facebook for a case, he/ she must go in via a personal account. In

Finland, a court decision is needed to access FB.

• It was suggested that there is a need for new legislation concerning the Internet, for

example, regarding the gathering of evidence - that all information gathered is

admissible because it has a shelf life, and is perhaps deleted or inaccessible at a

later date of investigation. Estonia agreed with this suggestion – evidence gathered

by private investigation is not allowed as evidence in court, although it will be

admitted as basic information. Currently, the investigation must be carried out by

Police officers in order to be admitted in court as evidence.

• IP legislation should be adapted to tackle online IP crime. The principles already

exist but they need to be applied. It was noted, however, that the process of drafting

and implementing new legislation is slow.

• Denmark showed interested in the ability to approach Europol regarding a cross-

border Internet crime (involving two or more States).

• It was agreed that the third question should be rephrased to ask whether IPR

specialists and their knowledge should be brought together in Cybercrime centres –

all countries agreed that even a small amount of dually specialised officers would be

beneficial. The consequence of the inability to investigate and present a case

effectively, is a lost case. If this is not possible, it is equally important for existing

Cybercrime officers and IP officers to work together on a regional basis.

• All countries agreed that the Internet develops very rapidly, as do the techniques of

counterfeiters and that there is a lack of relevant knowledge – intense training for

Enforcement is required.

• There is a lack of funding for IPR units. Lithuania highlighted a lack of institutional

and private organisations, and in Norway STOP almost fulfils the role of the Police.



• There is a need to raise awareness amongst Internet users; what is forbidden and

what is not. A need to raise awareness regarding the scale of Internet IP crime

amongst officers and Enforcement.

• Currently, there is a lack of interest in IPR matters - drug and tax evasion sit higher

on the list for prosecutions. IPR cases are very complicated and raise a lot of

questions – they are often ignored in favour of easier and quicker cases.

• Most prosecutors have no knowledge of EC3.

• The Cybercrime Convention offers a cooperation model, the 24/7 Network, but as

documented by UniCri it is used in only 3% of relevant cases.

• Sweden highlighted the problem of advertisements of counterfeit on social media

sites which gives them the appearance of legal offers.

• Customs agreed they would like to be able to detain goods without the right holder´s

consent, and to improve legislation to make it easier to block or take down sites

selling counterfeit goods.

• It was agreed that Europol is vital in order to connect Police and Customs in

transnational IP cases.

• Notably, the participants agreed that no one has an absolute knowledge regarding

the scale of the problem. Both criminals and victims are largely anonymous and the

majority of victims do not claim after they have been sold counterfeit goods.

• Should there be a regulation regarding setting up a website? Would it be followed?

• Support from Industry is pivotal in the submission of effective intelligence.

Day Three

Chris Vansteenkiste presented on the work of Europol in their fight against counterfeiting

and piracy. The organisation is based in the Hague, with a staff of over 800, including 120

analysts, recruited from across all Member States. The Operational Department houses

EC3, (The European Cybercrime Centre), a Serious and Organised Crime Unit, a Counter

Terrorism Unit and the the Operational Centre Info-Ex Hub. Within this department lies the

Economic Crime and European Counterfeiting Area - in which Focal Point Copy sits.

EC3 is almost two years old; a vision of the European Commission in order to establish a

European Cybercrime centre via a mandate. Intelligence comes from Member States and

third parties, as well as the private and public sectors. Strategy is determined by the board



and assisted by two advisory groups. On an operational level, EC3 has three focal points –

Cyborg which deals with hacking; Terminal which deals with card skimming, and Twins,

which tackles online child sexual abuse.

Focal Point Copy was established in 2008, has members from over 20 Member States, and

focuses on commodity counterfeiting and piracy. Since March 2013 (due to an expansion in

the legal framework) it has also focused on health and safety and on hazardous and

potentially harmful products, in order address the evolving counterfeit issues in Europe.

Many consumers in the world today do not realise they are using highly dangerous

pharmaceuticals and cosmetics, eating highly toxic foodstuffs sprayed with illicit pesticides,

and using substandard electrical and counterfeit automotive goods, with damaging - and

sometimes fatal results.

SOCTA – the Serious and Organised Crime Threat Assessment carried out by Europol with

input from the private and public sectors and other intelligence - prioritises work on

commodity counterfeiting and substandard goods which have a serious impact on Public

Health and safety. In 2014, commodity counterfeiting became an EU priority.

Europol´s partners sit across all Member States, Third Countries and third parties, with

close connections to other law enforcement agencies including Eurojust, INTERPOL, ICE,

OLAF and the EMCDDA .

In 2010, Europol became an official European agency and owing to a European Council

Decision, it is able to receive private intelligence – vital, because the private sector is often

the first to gain intelligence from consumers. The staff body at Europol are drawn from

across the Member States, with contacts at national level, and, consequently, progress on

national and cross-border cases is normally rapid. Chris Vansteenkiste underlined the

intelligence and expertise that Europol can offer to investigations and urged participants to

harness their resources. Europol acts as a practical contact point regarding serious and

organised crime cases involving at least two Member States. In addition to complex and

cross-border investigations and seizures on the ground, the organisation offers analysis,

forensic support, bitmapping and swift mobile office deployment at investigation level. The

agency also sends out early warning messages regarding new trends in counterfeit

products and runs many liaison events and training events, including a recent a training

event in partnership with OHIM on fake pesticides. Chris also underlined the scope of

interagency cooperation and the impressive results in seized counterfeit goods (via

“Operation OPSON” alongside INTERPOL) and seized websites selling counterfeit goods



(via “Operation in Our Sites”, in cooperation with the US National IPR Centre and French

Gendarmerie Nationale etc.).

Europol´s online and secure Platform for Experts (EPE) consists of invited members (of

which there are currently 407) who are enforcers and people working in IP crime on a daily

basis. The platform is organised in different sections dedicated to specific crime areas and

open to specific communities of authorised users. It offers an exchange of non-operational

information in order to support investigative work - members can upload information,

including IP training events and share a contacts database.

Responses from the floor showed an interest to join the EPE. Norway stated that their

government stance is that Customs should not deal with dangerous products; that these

products should be dealt with by Market Surveillance instead. Europol replied that there is

the possibility to implement SOCTA priorities, by which Customs and Police work together

to stop commodity counterfeiting regarding health and safety issues.

David Würgler followed Europol´s presentation with one entitled “Company Perspective

Cooperation between Industry and Government”. He underlined the necessity of strong

cooperation between the private sector and law enforcement in order to effectively fight

counterfeiters by offering strong deterrents and a consolidated approach to the problem. He

explained the ongoing process to overcome some obstacles between the private sector

and law enforcement regarding trust and a perceived lack of control and feedback in cases

passed by Industry to Enforcement. However, the advantages of cooperation between

Industry and Enforcement are tangible and rapid in their results - and include access to

private information, injunctions, civil obtention of evidence and a focus on education and

communication – and successful convictions.

STOP´s anti-piracy focus exists in practice in political lobbying, education, PR, online

investigation, damages controls and civil trials. Their overall strategy in order to fight piracy

is to improve legislation, harness existing legislation, technology, infiltration, and

consolidated and intelligent enforcement – employees come from a legal, Police and anti-

piracy background.

Phil Lewis presented on the EU IPR Enforcement Strategy. He was tasked by the UK IPO

to build a strategy against counterfeiting in the UK. He was instrumental in the IP Crime

Strategy, in place by 2003, working alongside the European Commission – and laid down

the foundations of what is now the EU Observatory.

He underlined the importance of partnership working in the face of findings including the

OECD´s study which estimated trade in counterfeit goods during 2007, of USD 25 billion.



However, international enforcement authorities are faced with increasing challenges

including insufficient resources, tools, training and technologies. The fundamental problem

facing Enforcement relates to a lack of understanding and the knowledge about the scope

and impact of the issue. There is a lack of tangible data about the scale of the problem and

a lack of political will; diverse legal frameworks which prevent the consolidation of

partnerships, and a lack of support from key decision makers who may prioritise other

issues over IP crime. Added to this, the insatiable demand for infringing products is

increasing – items which are produced, transported and sold in a clandestine manner.

Phil Lewis emphasised that, without robust and harmonised data on the scope, scale and

impact of the issue, it is impossible to measure threats and trends, focus resources and to

prove the case to policy makers. The Observatory is taking on this mantle, supported by

data-driven studies and harmonised statistics. A rapidly changing technical environment

makes the collection and analysis of data difficult, as well as reluctance on the behalf of

right holders to divulge information on counterfeit - and especially, dangerous counterfeit -

goods.

There are large differences in legislation within the EU. A report by the European

Commission on the application of the IPR Enforcement Directive clearly showed

differences in how it was transposed in the Member States. Criminal sanctions have not

been harmonised, and there is some complementary laws lacking.

He added that there is clear progression regarding cooperation with right holders to combat

IP infringement but the cross-border nature of the crime means more effective collaboration

between national administrations and right holders are needed. The necessity to improve

methods for exchanging information with right holders and colleagues in other countries is

increasingly evident - there is no EU wide, central mechanism to exchange information and

best practice. Furthermore, Member States are not always able to benefit from the

expertise of others. Notably, there is a lack of knowledge within Enforcement and the

judiciary regarding the most recent trends in the market (such as the production of

counterfeit automotive parts and pesticides, and more expensive counterfeit goods) and

new developments in methods of investigation.

There are an increasing number of awareness programmes and activities across the world,

but many consumers are either still confused or knowingly continue to buy or access

infringing products. Many countries have different attitudes towards counterfeit and piracy –

some, including Africa, are more economically vulnerable. The Observatory´s IP Perception

Study found that 42% of Europeans still consider it acceptable to download or access



copyright protected content illegally when it is for personal use, and there is significant

confusion amongst the Public regarding the legal status – or not – of content they wish to

access.

The core principle of the Observatory is to overcome this range of enforcement related

challenges by understanding them and acting. In order to act successfully, national

cooperation models and the Observatory require input, involvement and support.

Two interagency cooperation presentations followed, with best practice examples from

Romania and Serbia by Monica Pop and Branka Bilen-Katic.

Branka Bilen-Katic from the Serbian IP Office explained the existence of cooperation at

agency level since 2002. The Serbian IP office acts as a focal point for all IP matters. There

is legal and institutional framework in place, including administrative, civil and criminal

protection for IPRs. Currently, there are 11 institutions involved (including the Ministry of

Trade, Tourism and Communications, the Ministry of Internal Affairs, General Police

Directorate, the Public Prosecutions Service, the Courts) and all are recognised to have

competencies in the IPR enforcement field. Legislation (and MoUs) obliges all government

institutions to cooperate and exchange information, and there is very good cooperation

regarding the drafting of legislation and government orders, training and operations.

However, information exchange can still be described as ad hoc.

The National IP Strategy 2011 - 2015 identifies areas of cooperation including legal

alignment, the establishment of working groups (statistics, intelligence, judicial reform, right

holders, fake medicines), raising public awareness and Industry education, the

specialisation of courts, judges and prosecutors, maximising resources, avoiding

duplication and increasing efficacy. The Cooperation Body will initially be used to

implement the IPR enforcement priorities identified in the National Strategy on Intellectual

Property Development and the European Commission´s 2013 Progress Report.

Michael Poulsen asked the floor which other countries use their national IP Office as a focal

point for enforcement. In Finland, enforcement sits with Customs. In Norway, following a

white paper, their IP Office is tasked with building up a network of enforcement officers,

following the Danish model. Estonia is such a small country that all the relevant

enforcement contacts know each other and communicate. Poland works on a case by case

basis, trying to build up a network and exchanging information in a holistic way.

Monica Pop presented on interagency cooperation in Romania which was set up in 2005,

under an enforcement cooperation strategy and is housed in the Public Prosecutor´s Office,

attached to the Court of Cassation and Appeal. The IPR Unit, of which Monica is head, is



tasked with coordinating cooperation, tools, Memorandum of Understandings, manuals and

the Common Database. Enforcement institutions in Romania include the Public Ministry,

the Border Police, Customs, Romanian Copyright Office (ORDA), Ministry of Justice and

the fraud investigation unit of the Police. Since 2006, the Public Ministry has housed 10

specialised prosecutors, which has resulted in a more effective handling of cases via

effective dissemination and analysis. There is a national unitary approach to IPR crime,

training guides and events including seminars held for prosecutors, debates regarding

improvement in legislation, and strong coordination between operational sub units.

The IPR working group was set up in 2006 to provide cooperation between public units

involved in IPR and the private sector, with an MoU signed at Public Ministry level. It was

tasked with identifying gaps and proposing solutions to improve enforcement, and

implement the National Strategy in IPR. As a result, a new trade mark law has been

passed, and a manual of investigation designed, in order to assist with successful criminal

procedures. An MoU signed in March 2013 has joined six IPR institutions including the

National Medicine Authority and raised investigations into counterfeit medicines on the

market.

The Romanian IPR Common Database has been in existence since 2009 and brings

together six IPR institutions, including ORDA. The tool is secure and accessible to all

authorised Police officers, Customs officers and prosecutors working in IP, and houses

national databases and information concerning Customs seizures and criminal IP cases,

and it is regularly used by over 1000 enforcement officers.

Monica concluded by underlining the necessity for mutual trust required for interagency

cooperation, requests for rogatory letters and judicial assistance in order to successfully

combat increasing cross-border IP crime.

Following this presentation, Valerio Papajorgji outlined the “Action Plan on the Enforcement

of Intellectual Property Rights” recently published by DG MARKT which defines 10 main

actions, and focuses on identifying the actors, not consumers.

1. To launch awareness campaigns.

2. To launch debate with Industry in due diligence in supply chains – a policy paper

will be drafted on this basis.

3. To establish an MoU between Internet platforms and right holders to include

advertising agencies and payment service providers.

4. SMEs to establish enforcement procedures for small claims in order to improve civil

enforcement of IP rights.



5. To review current national schemes to assist the creation of a Green Paper

6. should service to better protect their rights in the EU.

7. To foresee the implementation of charge back schemes.

8. To establish an expert group from all Member States.

9. To produce training programmes for enforcement organisations.

10. To draft a guide on best practices for the Public, in order to avoid buying

counterfeited goods.

Moreover, this action plan should serve to support the production and publication of

biannual reports on “IP in the EU Economy”, in cooperation with the Observatory.

Eric Gastinel, OHIM Academy, ended the seminar by introducing the OHIM IP Teaching

Toolkit for Enforcement Officers, its objectives and methodology. The kit has been

designed to be a readily accessible Powerpoint presentation, divided into four chapters

which focus on basic concepts of EU Law for enforcement officers, an overview of IPRs,

the basics of IPR enforcement, a discussion on strategy, and an appendix on the

Enforcement Database (EDB).

The slides in the presentation do not need to be read chronologically – officers can dip in

and out of relevant chapters, each of which gives a snapshot, for example, on Copyright

and Patent concepts, multiple IPRs, registration routes, protocol for Customs regarding the

protection of products with a Community trade mark, and practical advice regarding search

tools and contacts. Participants showed a lot of interest in the toolkit and asked many

questions regarding how to use it and adapt it to their specific needs.

Conclusion No one body or agency can crack the problem of IP crime when acting alone. Interagency

cooperation pools resources and intelligence, and IPR crime units offer huge benefits,

detailed in the presentations by Europol, STOP, Romania, Serbia and OHIM regarding best

practice models. Feedback from the seminar suggests that the ability to harness contacts

and support from different States and work together, not in competition, and alongside

Industry and consumers, is the key to fighting this increasingly sophisticated and organised

crime network. Feedback showed there is an urgent need for specialised prosecutors,

judges, Customs and Police officers, specialised IPR crime units and Cybercrime unit

resources, and a commitment to increased training on specific issues including protocols

and contact points for cross-border assistance and Internet IP crime.



The seminar raised very pertinent issues and feedback from Enforcement and the private

sector. Its aims were to bring together participants and offer an open dialogue in order to

examine key points of cross-border and jurisdictional enforcement posed by Internet IP

crime. Those present agreed, it is not a battle to be won, but a battle to be fought, with

effective intelligence, training and tools - and on an international stage.

the observatory´s 2014 regional nordic seminar on enforcement · the observatory´s 2014 regional...

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