CLECAT Position Paper on EU Toolbox Against Counterfeiting
The European Freight Forwarding industry is ready to continue to support the upholding of IP-rightsholders’ rights, provided the rules are proportionate, consider market reality and do not impose undue burdens on the industry. As such, CLECAT welcomes the introduction of an EU Toolbox against counterfeiting, which will be based on reported practices and principles developed in the context of various industry-led initiatives.
CLECAT stresses that in creating the toolbox, a clear differentiation must be made between the different types of service providers on the market, as LSPs cannot be considered as intermediaries in the same way as online platforms or trade intermediaries. Moreover, existing case law should be considered which shows that the services of an intermediary in relation to branded goods owned by another (i.e. trademarks) do not qualify as "use of the trademark in the course of trade”, and thus, the intermediary cannot be held responsible for an infringement of IP rights in that regard.
Whilst LSPs are supportive of due diligence by inspecting suspicious consignments, it is unreasonable, disproportionate and impossible to oblige LSPs to proactively investigate, exchange information, supervise and implement systems for the detection of IPR infringements. Physical controls of the goods to detect counterfeits must stay with national or EU authorities, as it would be disproportionate to task LSPs to make informed, legally binding judgments on the authenticity of inspected goods, even for staff which is trained and employed to check goods for IPR infringements.
Therefore, CLECAT firmly believes that LSPs, handling hundreds of thousands of consignments daily for and behalf of their clients, cannot be held responsible and therefore liable for IPR infringements, as this is beyond their control.
The full position paper setting out the views, concerns and recommendations of the European freight forwarding, transport and logistics industry on the EU Toolbox against counterfeiting can be downloaded below.