Community Regulation No. 1383/03 revolutionized the customs protection system and provided the tools for the fight against counterfeiting in international trade. However, the referral to the domestic laws of each member state to regulate the steps after each seizure of suspect goods created significant differences from country to country. In Italy, in fact, it was not possible to avail of the simplified procedure for destroying goods. Rights owners had to initiate civil or criminal actions in order to ascertain whether the intellectual property right had actually been infringed, with consequent burdens and costs to be borne by the rights owners.

The new Regulation, which has been approved in draft form and is nearing the end of the legislative process, contains important new measures. One of the guiding principles, specified in articles 20 and following of the regulation, which is expected to come into force on 1 January 2014, is to make it possible to avail of the simplified procedure in all countries, explicitly regulating it. This means that in Italy it will now be possible to avail of this measure: following a seizure, the owner of the infringed right can declare infringement and ask that the goods be destroyed. If there are no objections, or silence, from the holder of the goods, the goods will be destroyed.

An even simpler procedure will be codified for “small shipments” – a shipment by post or courier of at most three units – of counterfeit or pirated goods: the dsstruction can be ordered ex officio. However, in this case application of the procedure will be subordinate to an explicit, prior request made by the owner of the industrial rights at the time of submitting the intervention request.

As always, the problem of the costs of destruction remains: in both cases, they will be borne by the owner of the infringed right. To recover these costs, it will be necessary to take action through the usual channels in order to request compensation from the party responsible for the infringement.

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