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Ohly, Ansgar --- "Counterfeiting and consumer protection" [2012] ELECD 939; in Geiger, Christophe (ed), "Criminal Enforcement of Intellectual Property" (Edward Elgar Publishing, 2012) 24

Book Title: Criminal Enforcement of Intellectual Property

Editor(s): Geiger, Christophe

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849801461

Section: Chapter 2

Section Title: Counterfeiting and consumer protection

Author(s): Ohly, Ansgar

Number of pages: 18

Abstract/Description:

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.