Table of Contents

Criminal Enforcement of Intellectual Property

Criminal Enforcement of Intellectual Property

A Handbook of Contemporary Research

Research Handbooks in Intellectual Property series

Edited by Christophe Geiger

This wide-ranging Research Handbook is the first to offer a stimulating and systematic review of the framework for criminal enforcement of intellectual property rights. If counterfeiting constitutes an ever-growing international phenomenon with major economic and social repercussions, potentially affecting consumer safety and public health, the question of which are the appropriate instruments to enforce IP rights is a complex and sensitive one. Although criminal penalties can constitute strong and effective means of enforcement, serious doubts exist as to whether criminal sanctions are appropriate in every infringement situation. Drawing on legal, economic, historical and judicial perspectives, this book provides a differentiated sector-by-sector approach to the question of enforcement, and draws useful conclusions for future legislative initiatives at European, international and national levels.

Chapter 2: Counterfeiting and consumer protection

Ansgar Ohly

Subjects: law - academic, criminal law and justice, intellectual property law

Extract

At first glance, anti-counterfeit measures predominantly benefit the interests of intellectual property rights owners. The EC Enforcement Directive (2004/48/EC) stresses that ‘without effective means of enforcing intellectual property rights, innovation and creativity are discouraged and investment diminished’, whereas the word ‘consumer’ is only mentioned three times in the text of the Directive. Recitals 14 and 24 state that certain enforcement measures should not be available against consumers acting in good faith, thereby acknowledging that consumer interests may not only be affected by the infringement of intellectual property rights, but also by their excessive enforcement. Only one reference is related to consumer protection against the sale of counterfeit goods. In many jurisdictions there exists a clear distinction between intellectual property law and consumer protection law. French law is an example in point. Whereas intellectual property law has been codified in the ‘Code de la propriété intellectuelle’ and is mainly enforced by private law actions, consumer protection is granted by the ‘Code de la consommation’, which predominantly provides for criminal sanctions.

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