FIGHT AGAINST COUNTERFEITING

"Counterfeiting" in the broadest sense means reproducing a good in such a way that it is mistaken for the original.
The term relates to industrial property rights. In the strictest sense, counterfeiting therefore means manufacturing, importing, selling or using products or services protected by industrial property rights (trademark, patent, design/model) without the holder's authorisation.
Concerning the close relationship between counterfeiting and protection of industrial property rights, reference is made to the following regulations:

• Industrial Property Code (Legislative decree no. 30 of 10 February 2005)

• EC Council Regulation no. 1383 of 22 July, 2003 (Report of the customs authorities on goods suspected of infringing certain industrial property rights and the measures to adopt against goods infringing said rights), which, in art. 2 in particular, provides a precise definition of counterfeiting. Counterfeiting is an ancient phenomenon which now has characteristics which make it a particularly serious activity.

Counterfeiting is a pervasive, global activity often conducted and controlled by criminal networks. It affects all production sectors: from clothing to pharmaceuticals and cosmetics, food, designer objects, toys and mechanics. In this sense, it alters the rules of operation of the competitive market and damages firms which operate legally, as well as representing a serious risk for the health and safety of consumers. Counterfeiting also damages the economy as a whole, since it deprives people of employment and the State of tax revenue.
In view of the seriousness of this problem, which is heightened by the possibility of distribution via the Internet, considerable efforts have been made by all institutions (central and local government administrations, business and consumer associations, the police) to prevent it and fight it. The tougher penalties for counterfeiters imposed by the legislator have also had a decisive impact.

On the institutional front, the principal innovations have been:
• the creation in 2009 of the Directorate-General for the Fight against Counterfeiting of the Italian Patent and Trademark Office (UIBM) as part of the Economic Development Ministry, offering firm proof that the fight against counterfeiting is a central element of the industrial policy, a cornerstone in supporting competition and innovation of Italian firms;
• the creation, in July, 2010, of a Parliamentary Commission of enquiry into commercial counterfeiting and piracy, with the aim of examining awareness of these activities in order to fight them, and analysing the good practices being tried in Europe and legislation applied in European Union countries;
• the creation (in December 2010, at the Economic Development Ministry, with the DGLC-UIBM acting as a General Secretariat) of the National Anti-counterfeiting Council – CNAC, an inter-ministerial body which is responsible for guidance, encouragement and coordination of all the administrations dealing with the fight against counterfeiting.

On the regulatory front, an important step was the Development Law of 2009 (Law no. 99 of 23 July, 2009 “Requirements for the development and internationalisation of firms, and also on energy") which, among other things, also:
• toughened the penalties and introduced compulsory confiscation of goods belonging to anyone guilty of counterfeiting
• introduced new aggravating circumstances for anyone committing counterfeiting offences systematically or with the use of organised means and activities
• introduced two new offences aimed at punishing the manufacture and sale of goods appropriating industrial property rights and counterfeiting of geographical indications or denominations of origin of agricultural food products
• eliminated applicability of the penalty to the conduct of the conscious final consumer, lowering the amount of the administrative fine (which currently ranges from Euro 100 to Euro 7,000) and turning it into a possible means of "education" of the consumer in the hands of the Police.
In addition to the Italian regulatory and institutional framework, the European framework should also be considered. On the institutional front, a “European Forum on Counterfeiting and Piracy”, now called the “European Forum on infringement of industrial property rights” was created in 2009, followed by (EU) regulation no. 386/2012 of the European Parliament and the European Council, which redefined its duties and made it responsible for management of the Office for Harmonisation in the Internal Market (OHIM). On the legislative front, a means of promoting observance of industrial property rights and therefore the fight against counterfeiting has been provided by directive 2004/48/CE of the European Parliament and Council of 29 April, 2004, which was introduced into Italian law through Legislative Decree no. 140 of 16 March, 2006.

For a more detailed examination of the institutional and regulatory situation of the fight against counterfeiting and the national strategies, see also:

• the strategies and activities of the DGLC-UIBM
• the section “The regulatory and institutional context” of the report “Dimensions, characteristics and detailed information on counterfeiting
• the National Anti-counterfeiting Plan, presented during the General Assemblies for the Fight against Counterfeiting organised by the CNAC and by the DGLC-UIBM and held in Milan on 19 November, 2012, with the participation of the Economic Development Ministry and the entire Italian national economic system involved in fighting this activity.

 

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