Regulation 1383/2003 and the effects of Border Detention on Intellectual Property Rights - at the European Community level with particular reference to the German and the Dutch experience.

Abstract: The infringement of intellectual property rights has devastating effects on trade, the free circulation of goods, employment, development and public health. Rights holders and the companies legitimately exploiting them are the main parties injured by this and in the last few years, infringement has increased by more than 1000%. The Commission has fought against such infringement since the eighties and believes that damage to the EU internal market can be minimised and intellectual property rights in the EU best preserved, by clear and effective efficient legislation concerning border detention by the Customs at the external frontiers of the EU. The Commission created the first provisions concerning border detention in 1986. They then clarified and amended these in the nineties. On July 1st, 2004, the Commission presented Regulation 1383/2003, which is the subject of this thesis. The rules of border detention have to constitute an efficient hindrance for organizations, which are often criminal in nature. The new provisions have to provide an efficient instrument for Customs, who are however dependent on the initiatives taken by rights holders. The new Regulation aims to provide and maintain this cooperation. However, it may in fact be weakened by considerations of business confidentiality, lack of information and technical expertise on the part of Customs, economically weak rights holders and SMEs. The Regulation provides a new simplified procedure for destroying infringing goods and abolished fees for applications for action by the Customs. The ex officio procedure for detention also has weaker evidence requirements. But, are the new provisions in fact going to be more efficient and clearer for all parties concerned? The Regulation has, of course, direct effect in the Member States. After a presentation and investigation of the main parts of Regulation 1383/2003, further on this thesis investigates national application in two of the Member States - Germany and the Netherlands. These States, differ, from ''the most protectionist jurisdiction'' to the ''pro-active''. Two different ways of fighting the battle - against the crime of the 21st century.