The WAITO Foundation’s 2011 report provides an international reference in the fight against organized crime and dangerous counterfeiting (Counterfeiting-crime©) prejudicing the stability of States and the security of their populations, and industrial sectors, whose responsibility it is to guarantee the protection of consumers. Contribute to the fight against Counterfeiting: http://www.waitofoundation.org WAITO offers an innovative approach to the fight against Counterfeiting-crime® For the health and safety of consumers. Counterfeiting affects our daily lives and is not longer limited to luxury brands. Having been restricted to specialized networks for three months, the report is now publicly available for free. 'The problem of counterfeiting does not only an issue of seizure volumes and tax revenues, it also has a major impact on consumer safety and national stability' 'This is no mean feat, but the health and safety of consumers and the protection of our democracies.' Pierre DELVAL Membre Fondateur Directeur Général de WAITO Foundation

2. 2
IF2C
Report
2011
Editorial
team:
WAITO
Foundation,
Villa
Sise,
Ch.
Grand-­‐Montfleury
48,
1290
Versoix,
Switzerland
Tel.
+41
(0)22
566
87
30;
Fax.
+41
(0)22
566
87
40
Chairman:
Chemavon
CHAHBAZIAN
Director
general
and
Editor
in
chief:
Pierre
DELVAL
Advisors:
Alain
BAUER
and
Xavier
RAUFER
Public
relations:
Laurent
ULMANN
Coordinator:
Frédéric
HAHN
Technical
coordinator:
Nicole
AGHROUM
Translator:
Esther
BARRETT
Board
of
experts:
Alain
BAUER,
Professor
of
criminology
at
the
Conservatoire
National
des
Arts
et
Métiers
(Paris),
New
York
and
Beijing,
Member
of
the
Board
and
Chairman
of
the
WAITO
Foundation
Ethics
and
Code
of
Practice
Committee.
Ghazi
BEN
TOUNES,
Economist,
Member
of
the
WAITO
Foundation
Board,
Director
of
the
WAITO
Office
in
Tunis
and
Vice-­‐chairman
for
Public
Affairs
in
the
Arab
World.
Pierre
DELVAL,
Criminologist
and
forensic
scientist,
Director
General
of
the
WAITO
Foundation.
Bernard
MARQUET,
Representative
at
the
Parliamentary
Assembly
of
the
Council
of
Europe
for
Monaco
and
Reporter
for
the
MEDICRIME
Convention.
President
of
the
Commission
on
the
Environment
and
Living
Environment
of
the
National
Council
of
the
Principality
of
Monaco.
Member
of
the
WAITO
Foundation
Board.
Kunio
MIKURIYA,
Secretary
general
of
the
World
Customs
Organization
(WCO).
Marco
MUSUMECI,
UNICRI
programme
coordinator,
Member
of
the
WAITO
Foundation
Board.
Eric
PRZYSWA,
Expert
on
Cybercrime,
Risk05
blog
editor.
Xavier
RAUFER,
Criminologist,
Director
of
studies
and
research
at
the
MCC
of
Université
Panthéon-­‐Assas
Paris
II,
Chairman
of
WAITO
Foundation
Scientific
Committee
Pau
ROCA,
Secretary
general
of
the
Federación
Española
del
Vino.
Michèle
RUDLER,
Emeritus
university
professor,
holds
a
Phd
in
Pharmacy
and
is
the
former
Director
of
the
Scientific
Police
Laboratory
in
Paris.
Christophe
ZIMMERMANN,
Anti-­‐counterfeiting
Coordinator
at
the
World
Customs
Organization
(WCO)
Editor
in
Chief:
Pierre
DELVAL
www.waitofoundation.org
(Website
coordinator:
Nicole
Aghroum)
Copyright-­‐
This
confidential
report
is
the
Intellectual
property
of
the
WAITO
Foundation
all
rights
reserved.
No
part
of
this
publication
may
be
reproduced
or
diffused
under
any
form
or
by
any
means,
including
photocopies
and
recordings,
or
by
any
information
storage
or
recovery
system.

3. 3
Counterfeiting-­‐crime©
A
major
challenge
Report
2011
Copyright-­‐
This
confidential
report
is
the
Intellectual
property
of
the
WAITO
Foundation
all
rights
reserved.
No
part
of
this
publication
may
be
reproduced
or
diffused
under
any
form
or
by
any
means,
including
photocopies
and
recordings,
or
by
any
information
storage
or
recovery
system.

4. 4
Acknowledgements
The
WAITO
Foundation
wishes
to
thank
the
public
and
private,
European
and
international
organizations
that
have
assisted
us
and
contributed
to
the
drafting
of
this
report.
In
particular,
we
would
like
to
thank:
THE
WORLD
CUSTOMS
ORGANIZATION
(WCO-­‐OMD)
THE
UNITED
NATIONS
INTERREGIONAL
CRIME
AND
JUSTICE
RESEARCH
INSTITUTE
(UNICRI)
THE
DEPARTMENT
OF
RESEARCH
ON
MODERN
CRIMINAL
THREATS
(MCC)
OF
THE
UNIVERSITY
PANTHEON
ASSAS
PARIS
II
THE
FRENCH
CONTRUCTION
FEDERATION
(FBB)
The
proceeds
from
the
sale
of
this
report
will
be
allocated
in
their
entirety
to
the
operation
of
the
International
Forum
on
Counterfeiting-­‐crime©
(IF2C).
Copyright-­‐
This
confidential
report
is
the
Intellectual
property
of
the
WAITO
Foundation
all
rights
reserved.
No
part
of
this
publication
may
be
reproduced
or
diffused
under
any
form
or
by
any
means,
including
photocopies
and
recordings,
or
by
any
information
storage
or
recovery
system.

5. 5
Preface
(by
Alain
Bauer)
For
a
long
time,
counterfeiting
was
only
seen
as
a
threat
to
trademarks,
particularly
in
the
luxury
sector.
Then
came
the
time
when
the
issue
of
copyright
and
brand
licensing
was
overtaken
by
concerns
regarding
public
health
and
safety.
Counterfeit
medicines,
cigarettes,
aeroplane
parts,
electric
switches
and
milk-­‐bottles
made
their
appearance,
posing
new
risks
for
society.
Counterfeiting
does
not
just
concern
seizure
volumes
or
taxes.
It
also
represents
a
major
threat
to
consumer
safety
and
national
stability.
It
has
therefore
become
necessary
to
develop
means
to
analyse
these
problems,
overcoming
confusion,
particularly
in
terms
of
statistics,
over
the
questions
raised.
Three
problems
require
separate
attention:
real
fakes,
look-­‐alikes
and
forgery.
They
have
long
been
referred
to
using,
often
confused,
terms
and
classing
them
indiscriminately
as
smuggling,
counterfeiting
and
fraud
offenses.
The
central
issue
is
determining
whether
they
constitute
crimes
or
offenses.
For
us,
as
criminologists,
in
order
to
avoid
ambiguity,
these
issues
require
simple
and
clear
definitions:
-­‐ Real
fake:
a
fiscal
problem
created
by
the
channelling
of
genuine
products
towards
sectors
that
increase
profits
lost
elsewhere,
and
avoid
taxes.
Some
right
holders
are
accomplices
to
this
practice.
-­‐ Look-­‐alike:
a
technically
compliant
product,
manufactured
by
a
company
lacking
both
the
relevant
rights
and
patents,
producing
illegal
generics
-­‐
in
the
case
of
medicines-­‐
or
using
a
usurped
trademark,
without,
however,
endangering
the
consumer.
This
is
a
problem
concerning
the
protection
of
intellectual
property
rights
and
the
prejudice
of
right
holders’
interests.
Some
States
are
accomplices
to
this
practice.
-­‐ Forgery:
the
most
dangerous
scenario,
with
graver
consequences
for
consumer
safety
and
public
health
than
for
tax
revenues
or
right
holders’
interests,
and
constituting
a
major
social
problem.
In
the
May
2010
issue
of
the
journal
The
European
Files,
Professor
Gentilini
explained
that
a
fifth
of
his
patients
in
Africa
came
to
him
with
problems
caused
counterfeit
medicines.
Organized
crime
is
the
main
supplier
of
such
products.
The
WAITO
Foundation
refers
to
this
as
Counterfeiting-­‐crime©.
The
creation
of
a
coalition
of
interests
on
public
health
and
consumer
safety
is
therefore
crucial.
This
idea
of
control
implies
the
need
to
develop
and
implement
tools
and
mechanisms
managed
by
producers,
this
being
their
interests,
but
controlled
by
the
public
authorities,
this
being
a
necessity.
Public
health
and
safety
issues,
and
political,
economic
and
social
stability
objectives
require
the
construction
of
such
tools,
but
also
create
the
need
to
protect
sovereignty
and
the
criminal
liability
of
right
holders.
These
Copyright-­‐
This
confidential
report
is
the
Intellectual
property
of
the
WAITO
Foundation
all
rights
reserved.
No
part
of
this
publication
may
be
reproduced
or
diffused
under
any
form
or
by
any
means,
including
photocopies
and
recordings,
or
by
any
information
storage
or
recovery
system.

6. 6
should
be
deterrent
and,
above
all,
effective
judicial
tools,
but
they
should
also
be
technically
preventive,
providing
irrefutable
evidence
of
the
good
or
bad
faith
of
the
manufacturer.
For
example,
it
is
time
that
a
reliable
Community
database
was
built,
able
to
anticipate
counterfeiting
trends
on
an
international
and
regional
scale
in
order
to
take
timely
measures,
in
particular,
by
implementing
tailor-­‐made
preventive
and
deterrent
policies.
It
is
also
time
that
European
and/or
global
public
specifications
were
developed
on
the
characteristics
of
a
mandatory
mechanism
identifying
the
place
of
production
and
the
destination
market,
marking
every
product
and
packet,
whatever
the
contents,
and
ensuring
that
this
device
is
visible
and
legible.
Here
I
am
thinking
of
the
tobacco
industry,
but
this
also
concerns
the
pharmaceutical
industry,
both
at
wholesale
and
retail
level.
These
new
stages
also
require
judicial
customs
departments
that
are
better
equipped
and
prepared,
with
access
to
new
files
and
devices
enabling
them
to
guarantee
the
security
of
their
officers
throughout
their
operations.
This
requires
better
targeting,
which
explains
the
need
for
early
detection
mentioned
earlier.
This
has
been
demonstrated
and
recalled
on
various
occasions
since
09/11:
here
again,
we
must
move
from
standard
to
customized
procedures.
Equipping
and
controlling
everything
is
useless
unless
these
measures
are
correctly
adapted
through
cooperation.
Excessive
and
incoherent
control
kills
control.
The
effectiveness
of
the
device
is,
therefore,
important
and
requires
both
the
private
and
public
sectors
to
work
together,
putting
aside
any
personal
interests
and
disputes.
The
crisis,
which
has
boosted
crime-­‐
not
undergoing
a
recession,
as
it
demonstrates
on
a
daily
basis-­‐,
has
indicated
that
States
must
assume
a
proactive
regulatory
and
disciplinary
role,
that
they
are
not
just
another
partner,
but
must
deliver
instructions,
listen
and,
ultimately,
decide.
The
rehabilitation
of
public
service
is
of
major
importance
for
customs
authorities,
which
have
always
defended
its
values
with
remarkable
determination,
but
also
for
the
police,
which
supplements
the
law-­‐enforcement
system
at
an
intra-­‐territorial
level.
Therefore,
cooperation
is
required
between
producers,
consumers,
regulators,
customs
officers,
judges
and
criminologists.
But
this
is
only
one
stage
in
a
process
that
must
result
in
practical
measures
to
resolve
these
problems.
Otherwise,
contrary
to
what
we
have
long
believed,
failing
to
act
will
be
as
harmful
as
acting
incorrectly.
Public
opinion
is
always
highly
sensitive
to
the
way
in
which
States
combat
criminal
activities,
which
benefit
a
large
number
of
citizens.
They
blame
the
State
both
for
having
prevented
them
from
taking
advantage
of
it,
and
for
having
done
so
ineffectively.
This
difficulty,
or
schizophrenia,
that
exists
in
the
public
opinion
must
be
taken
into
consideration.
But
we
should
now
take
full
advantage
of
the
options
open
to
us
through
the
diagnoses
provided
by
volunteer
criminologists.
It
is
up
to
the
authorities
to
decide
which
type
of
therapy
they
wish
to
undergo.
The
WAITO
Foundation’s
role
is
therefore
essential
in
enabling
this
dialogue.
This
role
will
be
enhanced
within
the
International
Forum
against
Counterfeiting-­‐crime
(IF2C)
in
Copyright-­‐
This
confidential
report
is
the
Intellectual
property
of
the
WAITO
Foundation
all
rights
reserved.
No
part
of
this
publication
may
be
reproduced
or
diffused
under
any
form
or
by
any
means,
including
photocopies
and
recordings,
or
by
any
information
storage
or
recovery
system.

7. 7
Geneva,
in
partnership
with
UNICRI,
the
WCO
and
the
Chinese
Research
and
Studies
Centre
on
Counterfeiting-­‐crime
in
Beijing,
which
WAITO
is
setting
up
together
with
the
China
University
of
Political
Science
and
Law.
The
WAITO
Foundation,
with
the
support
of
UNICRI
and
the
WCO,
will
carry
out
its
public-­‐interest
mission
by
providing
information
for,
uniting,
communicating
with
and
establishing
partnerships
between
States
and
their
public
authorities,
civil
society
and
companies.
This
first
report
on
the
global
situation
of
Counterfeiting-­‐crime©,
witness
to
their
determination
to
combat
counterfeiting
as
an
enemy
of
democracy,
is
the
starting
point
of
this
mission.
I
hope
you
enjoy
the
read.
Alain
Bauer
Professor
of
criminology
at
the
Conservatoire
National
des
Arts
et
Métiers
(Paris),
New
York
and
Beijing
President
of
the
Ethics
Committee
of
the
WAITO
Foundation.
Copyright-­‐
This
confidential
report
is
the
Intellectual
property
of
the
WAITO
Foundation
all
rights
reserved.
No
part
of
this
publication
may
be
reproduced
or
diffused
under
any
form
or
by
any
means,
including
photocopies
and
recordings,
or
by
any
information
storage
or
recovery
system.

8. 8
Foreword
(by
Kunio
Mikuriya,
Secretary
General
of
the
World
Customs
Organization)
The
volume
of
illegally
trafficked
goods,
irresolute
criminal
legislations,
the
lack
of
consumer
information,
and
technological
development
all
contribute
to
the
escalation
of
counterfeiting
and
piracy.
One
only
needs
to
look
at
the
results
of
two
major
international
operations,
Operations
TIGRE
and
FRED
60,
carried
out
in
April
and
May
2011
by
the
World
Customs
Organization.
Operation
TIGRE,
from
11
to
15
April
2011,
involved
9
countries
and
13
ports
in
the
Central
America
and
Caribbean
region.
In
5
days,
more
than
3.5
million
counterfeit
products
were
intercepted,
including
19
tonnes
of
insecticides,
151,020
bottles
of
body
products
and
creams,
176,000
medicines,
648,000
spare
mobile
phone
parts
and
2
machines
used
to
manufacture
counterfeit
cigarettes.
It
would
appear
that
organized
crime
is
becoming
more
diverse
and,
in
particular,
targets
products
with
an
effect
on
consumer
health
and
safety.
Operation
Fred
60,
carried
out
from
9
to
13
May
2011
in
West
and
Central
Africa,
brought
together
20
countries
and
21
ports.
In
5
days,
125
containers
were
intercepted
containing
some
43
million
counterfeit
products:
more
than
8
million
medicines,
hundreds
of
thousands
of
spare
vehicle
parts,
thousands
of
toothpaste
tubes,
alcoholic
drinks,
food
products,
etc.
The
results
of
these
two
operations
alone,
confirm
this
as
being
a
major
pandemic
phenomenon.
The
only
way
of
overcoming
it
is
to
act
together
and
on
a
global
scale.
The
WCO
has
put
forward
a
concrete
action
plan
focusing
on
two
main
areas.
The
first
is
to
strengthen
the
capacities
of
customs
authorities,
through
a
committed
policy
on
education
on
legal
and
practical
aspects
in
developing
and
least
developed
countries,
which
are
prime
targets
for
counterfeiters,
by
promoting
risk
analysis
techniques.
To
this
end,
between
2010
and
2011,
the
Japanese
government
financed
training
in
some
140
countries.
The
second
focus
is
on
communication
between
stakeholders,
in
particular
customs
authorities,
the
private
sector
and
non-­‐governmental
organizations.
A
taskforce
on
counterfeiting
and
piracy
(CAP)
made
up
of
customs
representatives,
has
been
set
up
by
the
WCO
to
enable
customs
authorities
to
exchange
opinions,
experiences,
good
practices
and
initiatives.
Participants
also
include
the
members
of
the
Right
holders
Consultative
Group,
a
think
tank
attached
to
the
WCO
Secretariat,
which
works
collecting
the
opinions
of
stakeholders,
to
assist
in
taking
informed
decision.
This
is
not
an
institutional
body
of
the
WCO
in
the
same
capacity
as
the
technical
committees,
but
a
WCO
Secretariat
debate
and
advice
mechanism.
The
purpose
of
the
Right
holders
Consultative
Group
is
to
provide
the
WCO
with
the
direction
it
needs
to
effectively
address
the
practical
needs
of
right
holders
to
fight
against
counterfeiting
and
piracy,
and
to
offer
a
forum
for
exchange
on
cooperation
between
right
holders
and
customs
officials.
Copyright-­‐
This
confidential
report
is
the
Intellectual
property
of
the
WAITO
Foundation
all
rights
reserved.
No
part
of
this
publication
may
be
reproduced
or
diffused
under
any
form
or
by
any
means,
including
photocopies
and
recordings,
or
by
any
information
storage
or
recovery
system.

9. 9
To
this
end,
the
WCO
has
developed
an
interface
known
as
the
Interface
Public-­‐Members
(IPM).
This
is
a
user-­‐friendly
and
functional
instrument
that
provides
frontline
customs
officials
with
all
the
information
required
to
identify
counterfeit
or
pirated
products.
In
addition
to
information
on
the
products,
IPM
provides
information
on
regular
supply
routes,
packaging
characteristics,
previous
cases
of
counterfeiting,
right
holders’
contact
information
in
each
country
and
information
on
distinctions
between
originals
and
fakes.
While
the
WCO
focuses
on
operational
aspects,
it
is
also
important
to
build
relationships
that
enable
the
up-­‐stream
consideration
of
issues.
To
this
end,
the
WCO
has
recently
established
an
agreement
protocol
with
the
WAITO
Foundation,
to
assist
in
raising
awareness
about
this
phenomenon
and
in
defining
an
effective
policy
to
fight
organized
crime.
I
am
convinced
that
this
agreement
protocol
between
the
WCO
and
the
WAITO
Foundation,
the
activities
of
the
latter
and
this
report
provide
solid
foundations
for
the
establishment
of
a
just
and
safe
society.
Copyright-­‐
This
confidential
report
is
the
Intellectual
property
of
the
WAITO
Foundation
all
rights
reserved.
No
part
of
this
publication
may
be
reproduced
or
diffused
under
any
form
or
by
any
means,
including
photocopies
and
recordings,
or
by
any
information
storage
or
recovery
system.

10. 10
Copyright-­‐
This
confidential
report
is
the
Intellectual
property
of
the
WAITO
Foundation
all
rights
reserved.
No
part
of
this
publication
may
be
reproduced
or
diffused
under
any
form
or
by
any
means,
including
photocopies
and
recordings,
or
by
any
information
storage
or
recovery
system.

11. 11
Introduction
(by
Chemavon
Chahbazian
and
Pierre
Delval)
Throughout
history,
man
has
toyed
with
the
idea
of
world
domination.
Many
people
have
strived
to
achieve
it,
often
through
religion,
generally
by
use
of
force,
and
now,
many
pursue
it
through
trade.
In
the
wake
of
market
globalization,
organized
crime
has
set
its
sights
on
the
potential
gains
generated
by
human
misery,
whether
in
the
food
and
agriculture
sector,
the
pharmaceutical
industry,
or
in
any
other
sector
producing
goods
bought
by
consumers
on
a
daily
basis.
In
these
conditions,
will
the
States
step
up
to
the
task
of
avoiding
or
will
they
leave
companies
to
fend
for
themselves
against
the
mafias?
Will
we
end
up
being
governed
by
criminal
organizations?
Most
probably
it
will
be
neither
the
one
nor
the
other.
States
will
hold
on
to
their
supremacy,
and
Mafias
will
become
more
and
more
powerful.
However,
the
real
power
will
be
wielded
by
the
markets,
with
all
the
forms
of
fraud,
including
counterfeiting,
that
this
entails.
Illicit
trafficking
has
always
existed
but,
with
the
fall
of
the
Berlin
Wall
and
globalization,
it
has
acquired
a
transnational
dimension.
Everyone
is
now
concerned,
from
the
ordinary
citizen
to
the
government
authorities.
These
markets
have
become
interdependent,
particularly
in
the
consumer
environment
where,
up
till
now,
counterfeiting,
food
fraud
and
smuggling
followed
parallel
paths.
Despite
their
differences,
these
movements
obey
the
age-­‐old
rules
of
supply
and
demand
and
the
same
principles
of
competition,
profit,
the
drive
to
innovate,
acquire
market
share
and
reduce
production
costs.
Across
the
board,
the
aim
is
to
generate
profits
as
quickly
as
possible
and
at
the
lowest
possible
risk.
In
this
way,
the
boundary
between
legal
and
illegal
is
becoming
blurred,
and
the
dangers,
whether
technical
or
counterfeiting-­‐related,
are
increasing
for
all
participants
in
consumer
product
chains.
The
risks
of
counterfeiting
are
generated
by
its
capacity
to
deceive
consumers
through
the
production
of
identical
copies
of
the
visible
parts
of
products
and
their
trademarks.
Through
industrialization,
counterfeiting
is
carried
out
on
mass
and
is
becoming
hard
to
control.
The
annual
global
death-­‐toll
is
proof
of
this
threat
in
terms
of
public
health
and
safety:
in
2005,
according
to
the
United
States
Consumer
Product
Safety
Commission
(CPSC),
in
North
America,
some
73,000
children
under
5
had
to
be
rushed
to
hospital
after
handling
counterfeit
toys;
20
of
them
died
from
injuries
or
poisoning.
Russia
holds
the
record
for
aircraft
accidents,
with
8.6
crashes
per
million
flights
in
2007
-­‐thirteen
times
the
world
average.
These
crashes
were
mainly
due
to
the
failure
of
counterfeit
spare
parts.
Again
in
Russia,
in
2005,
the
World
Health
Organization
confirmed
the
deaths
of
thousands
of
people
poisoned
by
adulterated
vodka,
some
of
which
was
sold
under
well-­‐
known
brands.
President
Putin
referred
to
this
as
a
“national
tragedy”
justifying
the
stepping-­‐up
of
control
on
the
illicit
traffic
of
alcohol.
Unfortunately,
these
measures
have
not
helped
the
situation.
In
2007
illegal
distilleries
provided
almost
two
thirds
of
the
Copyright-­‐
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confidential
report
is
the
Intellectual
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WAITO
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all
rights
reserved.
No
part
of
this
publication
may
be
reproduced
or
diffused
under
any
form
or
by
any
means,
including
photocopies
and
recordings,
or
by
any
information
storage
or
recovery
system.

12. 12
alcohols
consumed1.
In
the
pharmaceutical
sector,
WHO
statistics
published
in
November
2006
estimated
the
“dangerous
counterfeiting
of
active
ingredients”
at
10%
of
total
consumption
in
Russia,
25%
in
India,
35%
in
Lebanon,
40%
in
Peru,
48%
in
Nigeria
and
70%
in
Angola.
There
are
thousands
of
cases
of
deaths
or
irreversible
secondary
effects
among
the
poorest
patients.
Regarding
electrical
equipment,
the
12
million
pieces
seized
by
European
Union
customs
authorities
in
2006
showed
technical
anomalies
clearly
contrary
to
the
security
standards
in
place.
According
to
the
WCO,
seizures
of
counterfeit
food
products
increased
by
more
than
2500%
in
2008,
and
those
of
spare
vehicle
parts
increased
by
more
than
2600%
in
2009,
with
all
the
consequences
implied
in
terms
end-­‐
consumer
risks.
In
their
January
2011
report,
MarketsandMarkets
predicted
that
by
2014
the
global
budget
for
the
anti-­‐counterfeiting
device
market
in
the
food
and
medicines
sector
would
have
reached
79.3
million
US$,
with
49
million
US$
for
North
America
alone,
shedding
light
on
the
potential
size
of
global
illegal
markets
in
four
years’
time.
The
most
important
development
in
contemporary
criminality
is
the
convergence
of
crime.
It
is,
thus,
no
longer
uncommon
to
find
combinations
of
fraud
and
counterfeiting
or
counterfeiting
and
smuggling.
For
a
long
time,
there
has
been
a
tendency
to
underestimate
the
real
dangers
of
counterfeiting.
Intellectual
property
rights
have
provided
practically
the
only
shield
against
this
illegal
and
protean
activity.
The
situation
is
now
explosive,
although
it
is
extremely
difficult
to
measure
the
overall
phenomenon.
As
with
any
illegal
activity,
the
overall
estimates
available
are
questionable.
However,
an
amalgamation
of
the
statistics
of
all
industrial
sectors,
added
to
those
of
the
European
customs
authorities,
confirm
a
definite
upward
trend2.
Along
with
a
number
of
other
countries,
France
has
always
distinguished
itself
in
the
fight
against
counterfeiting.
Aware
of
the
developments
in
the
domain
of
counterfeiting
crime,
it
has
consolidated
the
1994
Longuet
Act
and
its
subsequent
amendments3.
France
made
significant
progress
with
the
anti-­‐counterfeiting
act
of
29
October
2007-­‐
one
of
the
first
acts
Christine
Lagarde,
then
French
finance
minister,
presented
to
the
Parliament 4 .
Criminal
sanctions
were
increased
and
simplified
and
accelerated
procedures
were
1
Communica-­‐
Spring
2007-­‐Swiss
Magazine
belonging
to
the
federal
department
for
the
control
of
alcohols
2
A
key
information
source
to
combat
the
global
plague
of
counterfeiting-­‐
The
International
anti-­‐counterfeiting
directory
2009-­‐ICC
3
What
does
the
Longuet
Act
do?
Exhausted
by
interminable
procedures,
many
industrial
counterfeit
victims
ask
themselves
this
question.
According
to
the
government
“the
Act
of
5
February
1994
has
established
a
solid
legal
foundation”
in
the
French
industrial
landscape,
in
respect
of
the
combat
against
counterfeiting.
In
reality,
while
this
Act
appears
to
be
effective
against
counterfeiting,
it
reveals
a
number
of
weaknesses
despite
the
addition
of
supplementary
legal
measures.
In
a
general
context
of
an
extremely
slow
justice
system,
it
appears
to
be
powerless
in
resolving
disputes
between
two
companies
in
the
same
sector
and
based
in
the
same
city.
It
is
common
for
a
case
to
last
five
years
and
to
result
in
“laughable
compensation”,
simply
because
the
“the
counterfeiters
knew
the
legislation
by
heart”,
as
one
specialized
lawyer
put
it.
Various
on-­‐going
cases
confirm
the
limitations
of
the
current
system.
Apart
from
the
cases
of
“servile
copies”,
where
rapid
summary
proceedings
can
be
ordered
by
the
judges,
most
cases
take
a
long
time.
The
reparation
of
damages
is
another
area
of
weakness.
The
justice
system
makes
use
of
experts
able
to
measure
the
economic
impacts
of
counterfeiting
and
unfair
business
practices.
However,
in
general,
“judges
have
little
concern
from
economic
life”.
The
Longuet
Act
has
aggravated
the
penalties
against
counterfeiters.
But
it
has
also
probably
made
them
more
cunning.
The
result
is
that
the
proceedings
become
more
complicated
and
expensive.
On
the
other
hand,
victims
do
not
consider
that
the
penalties
are
sufficiently
dissuasive.
“In
certain
cases,
we
avoid
publishing
judicial
decisions.
The
compensation
sums
are
so
low
that
they
could
give
other
counterfeiters
ideas”,
one
of
the
case
lawyers
acknowledged.
4
Act
n°
2007-­‐1544
of
29
October
2007
on
anti-­‐counterfeiting.
This
act
was
published
in
the
Official
Gazette
on
30
October
2007,
transposing
European
directive
of
29
April
2004
on
the
enforcement
of
intellectual
property
rights.
Until
then,
only
one
draft
act,
dated
7
April
2007
had
been
produced,
despite
the
deadline
for
the
transposition
of
the
directive,
which
expired
on
29
April
2006.
Copyright-­‐
This
confidential
report
is
the
Intellectual
property
of
the
WAITO
Foundation
all
rights
reserved.
No
part
of
this
publication
may
be
reproduced
or
diffused
under
any
form
or
by
any
means,
including
photocopies
and
recordings,
or
by
any
information
storage
or
recovery
system.

13. 13
established
for
filing
administrative
proceedings,
to
prevent
an
imminent
infringement
of
intellectual
property
rights.
State
department
powers
were
extended.
But
in
order
to
go
even
further
and
faster
than
this,
during
its
presidency
of
the
Council
of
the
European
Union
(second
semester
of
2008),
France
also
offered
its
European
partners
a
series
of
measures
aiming
to
reinforce
anti-­‐counterfeiting
and
anti-­‐piracy
measures.
All
the
European
states
supported
this
initiative
and
the
Competitiveness
Council
of
25
September
2008
adopted
a
resolution
on
a
comprehensive
European
plan.
This
plan,
in
particular,
aims
to
develop
action
to
raise
awareness
and
communicate.
The
Council
also
invited
the
European
Commission
to
set
up
a
European
counterfeiting
and
piracy
observatory
to
enable
a
regular
assessment
and
a
more
precise
analysis
on
the
extent
of
the
phenomenon.
This
observatory
should
be
in
place
by
end
of
December
2009.
It
was
precisely
during
the
discussion
of
the
creation
of
this
observatory
that
Jacques
Toubon,
then
a
member
of
the
European
Parliament 5 ,
warned
his
colleagues,
the
members
of
the
committees
concerned
and
anti-­‐counterfeiting
inter-­‐professional
federations
of
the
risks
of
placing
too
much
emphasis
on
intellectual
property
rights.
He
considers
that
counterfeiting
also
concerns
consumers,
who
are
too
often
forgotten
in
this
type
of
approach.
He
acknowledged
that
French
consumers
enjoy
one
of
the
best
protections
in
Europe.
However,
he
stressed
the
fact
that
they
are
nonetheless
European
consumers.
“There
is
no
advantage
to
being
in
a
highly
protected
area
such
as
France
or
Germany,
if
these
are
within
an
economic
area
and
in
a
domestic
market
with
areas
of
weakness!”
he
declared
in
July
2009
in
“Les
Cahiers
de
la
competitivité”.
Jacques
Toubon
argues
that
there
is
no
point
in
having
an
effective
anti-­‐counterfeiting
system
in
France,
if
French
products
continue
to
be
exported
to
Europe,
where
there
is
no
criminal
justice
harmonization
on
intellectual
property
rights,
and
to
areas
outside
its
jurisdiction,
outside
the
European
Union.
Jacques
Toubon,
therefore
sees
two
priorities:
“all
EU
countries
need
to
harmonize
their
legislations
and
accept
criminal
sanctions
at
a
5
European
Parliament
debate-­‐
Wednesday
17
December
2008-­‐
Impact
of
counterfeiting
on
international
trade.
Speech
by
Jacques
Toubon-­‐
MEP.
(…)counterfeiting
is
an
economic,
social
and
health
menace
of
a
size
that,
in
my
view,
is
often
underestimated.
Some
people
estimate
that
a
third
of
the
goods
docked
in
containers
at
Antwerp
or
Rotterdam
are
counterfeits.
I
did
say
‘a
third’,
and
these
are
estimates
produced
by
official
departments.
I
would
like
to
say
very
clearly,
and
I
am
not
going
to
beat
about
the
bush,
that
I
am
truly
disappointed
by
the
European
Parliament’s
proposals
and
by
the
debate
this
evening.
For
once,
I
am
more
disappointed
by
the
Parliament
than
by
the
Commission
or
the
Council,
since
in
this
sphere,
the
Council
and
the
Commission
have
done
their
work.
The
action
plan
of
25
September,
the
seminar
held
on
25
November
and
the
proposals
which
Mr
Barrot
has
just
set
out
on
behalf
of
the
Commission
are
real
actions,
not
fine
words.
Commissioner,
what
I
would
simply
like
to
say
to
you
is
that
I
would
really
like
the
observatory,
for
example,
to
be
made
operational
during
the
first
half
of
2009
and
for
the
regulation
on
market
surveillance
adopted
by
the
Council
to
be
adopted
in
this
Parliament.
As
far
as
Mr
Susta
is
concerned,
I
am
not
speaking
here
of
his
alternative
proposal
for
a
resolution,
which
unfortunately
we
are
not
going
to
debate.
I
am
speaking
of
his
report.
It
is
much
too
weak,
much
too
timid,
and
says
nothing
on
indications
of
origin,
says
nothing
on
the
observatory
and
is
timid
and
reticent
regarding
the
protection
of
intellectual
and
industrial
property.
You
talk
of
ACTA
and
say
that
we
need
to
adopt
it,
but
you
say
that
we
should
not
use
the
means
that
would
be
effective
in
enforcing
it.
In
addition,
I
must
say
that
I
was
staggered
by
the
comments
made
by
my
two
fellow
Members
from
Sweden,
who
give
the
impression
that
the
danger
comes
not
from
counterfeiting
but
from
the
fight
against
counterfeiting.
Ladies
and
gentlemen,
we
are
completely
mistaken
if
we
do
not
take
more
resolute
action.
We
are
dealing
with
this
subject
as
if
it
were
a
marginal
economic
activity,
no
more
than
that,
whereas
it
could
mark
the
end
of
our
industries,
it
could
signal
widespread
exploitation
of
workers
from
the
emerging
countries,
let
us
not
forget,
and
finally,
could
amount
to
widespread
lack
of
safety
for
consumers.
We
must
take
action!
Copyright-­‐
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confidential
report
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the
Intellectual
property
of
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WAITO
Foundation
all
rights
reserved.
No
part
of
this
publication
may
be
reproduced
or
diffused
under
any
form
or
by
any
means,
including
photocopies
and
recordings,
or
by
any
information
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or
recovery
system.

14. 14
community
level”.
Two
years
earlier,
Michel
Danet,
then
Secretary
General
of
the
World
Customs
Organization
(WCO),
had
already
reached
similar
conclusions.
He
argued
that
the
combination
of
overly
restrictive
TRIPS
agreements
and
the
lack
of
effective
industrial
property
protection
in
more
than
60
countries
in
the
world,
rendered
European
rights
on
intellectual
protection
impractical.
Faced
with
this
lack
of
cohesion,
counterfeit
offenders,
generally
from
a
background
of
organized
crime,
have
all
the
financial
and
organizational
facilities
to
get
around
obstacles.
Although
the
defence
of
trademark
rights
is
synonymous
with
consumer
protection,
Jacques
Toubon
also
recognizes
that
the
fight
against
counterfeiting
must
result
in
direct
action
on
consumer
protection:
“this
should,
for
example,
include
law
enforcement
action
to
ensure
food
and
health
safety
and
should
not
just
be
limited
to
the
protection
of
intellectual
or
industrial
property”.
The
harmonization
of
criminal
law
and
consumer
protection
are
two
subjects
that
require
further
consideration.
Harmonization
of
criminal
law
Criminal
sanctions
are
dependent
on
the
danger
posed
by
a
counterfeit
product
and
the
issues
that
this
raises
on
a
legal
and
practical
level.
Counterfeiting,
by
definition,
violates
the
rights
of
right
holders,
but
they
need
to
provide
proof
of
the
danger
implied.
But
this
leads
to
the
question
of
how
this
should
be
gauged.
Should
the
presumption
of
danger
be
applied
de
facto
or
would
this
work
against
the
right
holder’s
interests?
This
would
raise
questions
about
the
genuine
product.
A
medicine,
for
example,
can
be
dangerous
if
the
prescribed
dosage
is
not
respected
or
if
it
is
not
adapted
to
a
specific
pathology;
it
can
also
be
dangerous,
due
to
its
secondary
effects.
If
the
right
holder
provides
private
evidence,
he
will
be
disinclined
to
expose
the
danger
of
his
product.
Moreover,
how
far
should
evidence
be
taken:
is
a
comparison
of
the
counterfeit
product
with
the
genuine
product
acceptable?
And
in
that
case,
what
about
the
possible
dangers
linked
to
a
genuine
product,
such
as
the
secondary
effects
of
a
medicine?
Customs
authorities
in
certain
countries
already
apply
heavier
customs
sanctions
to
dangerous
counterfeits,
without
having
elicited
a
reaction
from
the
judiciary.
All
this
is
generally
treated
in
terms
of
intellectual
property
law
rather
than
using
a
more
appropriate
legal
arsenal
to
supplement
the
intellectual
property
code.
In
theory,
in
the
case
of
dangerous
material
goods,
it
is
not
the
right
holder
that
should
intervene
first,
but
the
public
authorities.
The
focus
should
not
be
on
the
violation
of
intellectual
property
rights,
but
on
the
intention
to
harm
another
person’s
life
through
the
danger
posed
by
the
suspected
counterfeit
product.
Moreover,
the
limitations
of
seizures
and
legal
proceedings,
observed
in
recent
years,
speak
in
favour
of
a
more
nuanced
implementation
of
intellectual
property
legislation.
These
limitations
are
largely
the
result
of
conflicts
of
interest
between
the
right
holders
and
public
authorities
when
qualifying
the
act
of
counterfeiting.
It
is
not
uncommon
for
right
holders
to
try
to
come
to
a
friendly
settlement
with
the
counterfeiter
to
receive
rapid
compensation
and
avoid
long
and
expensive
legal
proceedings.
Nor
is
it
uncommon
for
trademark
owners
to
be
unwilling
to
bring
high-­‐
profile
hazards
to
the
public
knowledge
(the
pharmaceutical
industry
kept
the
facts
about
the
counterfeiting
of
its
brand-­‐name
medicines
hidden
for
a
long
time
and
the
agri-­‐food
Copyright-­‐
This
confidential
report
is
the
Intellectual
property
of
the
WAITO
Foundation
all
rights
reserved.
No
part
of
this
publication
may
be
reproduced
or
diffused
under
any
form
or
by
any
means,
including
photocopies
and
recordings,
or
by
any
information
storage
or
recovery
system.

15. 15
industry
continues
to
keep
cases
of
dangerous
counterfeits
secret).
This
is
not
to
mention
the
fear
of
customs
authorities
and
right
holders
of
being
sued
for
unjustified
infringement
proceedings;
nor
of
weak
intellectual
property
claims
being
disputed
or
the
possibility
of
losing
a
case
for
lack
of
control
over
supply
and
sub-­‐contracting
channels.
With
only
minimal
coherence
between
national
practices,
how
can
the
issue
of
seizures
be
resolved?
How
can
effective
action
be
taken
without
the
cooperation
and
evident
expertise
of
right
holders?
How
can
more
dissuasive
criminal
sentences
be
imposed
without
having
to
show
evidence
of
a
link
to
organized
crime?
Obstacles
to
implementation:
“key”
examples
To
understand
the
situation
on
the
ground,
it
is
important
to
consider
two
key
examples:
• the
“syndrome
of
the
customs
officer
in
a
goods
port”
• the
judge
and
the
demonstration
of
proof
The
“syndrome
of
the
customs
officer
in
a
goods
port”
The
intervention
procedure
of
the
customs
authorities,
at
least
in
Europe,
requires
a
certain
level
of
responsiveness,
largely
due
to
time
restrictions.
Seizures
are
generally
made
after
a
detention
at
customs,
with
the
exception
of
certain
European
Union
Member
States,
such
as
France,
that
immediately
seize
the
products
of
certain
trademarks.
The
customs
officers
are
therefore
dependent
on
the
right
holders
who
must
identify,
authenticate
and
confirm
the
counterfeit.
The
procedure
is
generally
the
following:
when
Customs
detect
products
that
they
suspect
of
counterfeiting,
they
search
for
the
right
holders
and
notify
them
of
the
suspicion
of
counterfeiting.
Experts
appointed
by
the
right
holders
go
to
the
customs
control
post
and
confirm
or
rejects
the
counterfeiting
claim
counterfeiting
in
a
verbal
statement.
This
confirmation
results
in
detention
at
Customs,
or
a
customs
seizure
depending
on
the
type
of
counterfeited
right
(trademarks,
designs
and
models,
copyright,
patents,
etc.).
Then
a
preventive
seizure
order
must
be
requested
from
the
local
public
prosecutor’s
office
and
it
must
be
implemented
within
a
set
period
(10
days
for
ordinary
goods
and
three
days
for
perishable
goods)
after
the
detention
at
customs.
In
the
event
of
a
customs
seizure,
a
summons
must
be
issued
or
a
criminal
complaint
filed
against
the
counterfeiter
or
the
distributor
of
counterfeit
products,
almost
simultaneously.
There
is
always
time
to
file
civil
proceedings
if
this
was
not
done
when
the
case
was
filed.
The
“syndrome
of
a
customs
official
in
a
goods
port”
is
indicative
of
the
impracticality
lack
of
this
procedure.
If
we
take,
for
example,
the
port
of
Antwerp,
158
million
tonnes
of
goods
(2009)
in
thousands
of
containers
arrive
there
every
day.
A
small
group
of
authorized
customs
officers
must
examine
the
manifestos6
transferred
by
the
transporter
onto
their
computer
network,
identify
any
anomalies,
compare
them
with
any
on-­‐going
investigations,
find
the
suspected
containers
and
select
only
a
few
of
them
due
to
time
restrictions
and
the
available
means
of
identification.
6
Transport
documents.
Copyright-­‐
This
confidential
report
is
the
Intellectual
property
of
the
WAITO
Foundation
all
rights
reserved.
No
part
of
this
publication
may
be
reproduced
or
diffused
under
any
form
or
by
any
means,
including
photocopies
and
recordings,
or
by
any
information
storage
or
recovery
system.

16. 16
Moreover,
when
controls
are
carried
out
in
the
middle
of
the
night,
at
the
back
of
a
container,
without
being
able
to
contact
the
right
holders
to
get
the
information
required
to
start
the
detention
procedure,
customs
officers
have
little
room
for
manoeuvre.
Despite
the
use
of
fixed
scanners,
this
raises
the
question
of
how
many
of
these
containers,
transporting
illicit
products,
manage
to
slip
through
the
control
authorities’
nets.
“Probably
the
majority”,
is
the
baffled
guess
of
the
customs
officers
at
the
Port
of
Antwerp.
The
control
authorities,
essentially
represented
by
customs
and
the
police,
evidently
lack
the
tools
to
clearly
distinguish
genuine
from
counterfeit
products,
under
pressure,
without
having
to
rely
on
the
right
holder.
The
“syndrome
of
a
customs
official
in
a
goods
port”
must
not
be
seen
as
unavoidable
and
the
use
of
heavy
and
costly
x-­‐ray
equipment,
as
suggested
by
some
Member
States,
will
only
go
so
far
in
resolving
this
tricky
problem,
and
not
very
far
at
that.
The
judge
and
the
demonstration
of
proof
In
terms
of
judicial
action,
procedures
must
allow
the
evidence
of
counterfeiting
as
violation
of
intellectual
property
rights
to
be
produced.
This
implies
establishing
that
these
rights
exist
and
providing
material
evidence
of
their
infraction
through
counterfeiting.
Without
these
specific
elements,
and
without
the
effective
cooperation
of
the
right
holders,
the
judicial
authorities
cannot
apply
their
law
enforcement
instruments
effectively.
Likewise,
in
proceedings
involving
the
seizure
of
products
suspected
of
counterfeiting,
the
judicial
authorities
need
to
be
convinced.
However,
convincing
does
not
always
mean
proving.
Questioning
the
authenticity
of
a
product
and
its
origin,
to
determine
whether
it
is
a
counterfeit,
implies
finding
out
whether
the
product
has
the
fundamental
characteristics
constituting
an
infraction.
To
provide
solid
grounds
for
an
inquiry,
the
nature
of
these
characteristics
must
be
established,
before
determining,
practically
and
objectively,
whether
the
suspect
product
presents
them
or
not.
The
predominant
litigious
trend
in
recent
case
law
highlights
the
importance
in
implementing
law
enforcement
measures.
The
strengthening
of
penalties
for
counterfeiting
crimes
has
crystallized
the
debate
on
the
way
in
which
the
evidence
of
crime
is
administered.
Procedures
are
lengthy
and
give
counterfeiting
networks
the
time
to
disappear
and
regroup.
The
research
carried
out
by
right
holders
and
the
control
authorities
(customs
and
police)
are
rendered
useless.
It
is
a
waste
of
time
and
money,
which
is
becoming
unbearable
for
everyone.
We
are
also
increasingly
seeing
the
validity
of
intellectual
property
licenses
being
contested.
With
increasingly
“perfect”
copies,
proving
that
the
genuine
article
is
truly
authentic
requires
that
title-­‐holders
provide
further
information
and
thus
reveal
their
trade
secrets
to
whoever
wants
to
use
them.
For
companies,
this
is
a
dangerous
spiral
that
only
benefits
the
counterfeiters.
But,
above
all,
it
is
a
spiral
posing
little
constraints
on
criminal
organizations,
against
which
the
intellectual
property
code,
when
applied
to
consumer
goods,
is
too
subtle
to
be
effective.
Copyright-­‐
This
confidential
report
is
the
Intellectual
property
of
the
WAITO
Foundation
all
rights
reserved.
No
part
of
this
publication
may
be
reproduced
or
diffused
under
any
form
or
by
any
means,
including
photocopies
and
recordings,
or
by
any
information
storage
or
recovery
system.

17. 17
Pharmaceutical
crime:
an
early
form
of
counterfeiting-­‐crime
It
was
in
this
context
that
the
Council
of
Europe
examined
an
innovative
legal
alternative
by
developing
a
legal
instrument
to
combat
pharmaceutical
crime
more
effectively.
During
the
meeting
at
Moscow
of
23
and
24
October
2006,
the
participants
of
the
conference
“Europe
against
counterfeit
medicines”
had
put
forward
a
proposal
to
develop
this
legal
instrument
in
order
to
protect
health
in
Europe.
The
participants
agreed
that
the
following
elements
should
be
taken
into
consideration
when
preparing
a
future
convention:
• the
definition
of
pharmaceutical
crimes
as
aggravated
crimes;
• the
penalization
of
the
manufacture
and
distribution
of
counterfeit
medicines;
• setting
up
a
network
of
contacts
in
each
of
the
sectors
concerned,
especially
in
the
health
and
legal
compliance
sectors;
• the
adoption
of
provisions
on
a
national
level
to
monitor
the
quality
of
components
for
pharmaceutical
use,
packaging,
manufacturing
processes
in
accordance
with
the
standards
established
by
the
European
Pharmacopoeia;
• greater
cooperation
between
the
bodies
responsible
for
implementing
laws
on
a
national
and
European
level.
At
the
end
of
2007,
eleven
experts
were
appointed
and
developed
the
draft
Council
of
Europe
Convention
against
Counterfeiting
of
Medical
Products
and
Similar
Crimes
involving
Threats
to
Public
Health.
Completed
on
26
February
2009,
this
draft
is
currently
being
examined
by
the
Committee
of
Ministers
of
the
Council.
This
draft
is
of
particular
interest
because,
for
the
first
time,
it
underlines
the
possibility
of
the
development
of
an
anti-­‐counterfeiting
law
enforcement
instrument
that
would
constitute
a
complete
departure
from
the
model
currently
used.
Thus,
for
example,
the
following
acts
are
classified
as
crimes
when
they
are
committed
intentionally:
• the
manufacture
of
counterfeit
medical
products,
active
ingredients
or
components,
including
their
adulteration;
• the
falsification
of
any
document
relating
to
a
medical
product,
an
active
ingredient
or
component;
• the
supply
or
offer
of
counterfeit
medical
products,
active
ingredients
or
components;
• the
promotion
of
counterfeit
medical
products,
active
ingredients
or
components.
• the
illicit
trafficking
of
counterfeit
medical
products,
active
ingredients
or
components.
Aggravating
circumstances
are
a
strong
feature
in
this
draft,
therein
highlighting
the
intention
of
harming
another
person’s
life.
These
circumstances
will
be
of
great
importance
in
determining
the
sanctions
to
be
applied.
This
is
evidently
the
case
of
an
infraction
that
causes
the
death
of
the
victim
or
harms
the
victim’s
physical
or
mental
health.
This
is
also
the
case
of
the
offenses
of
promotion
and
supply
using
mass
distribution
procedures,
and
offenses
committed
by
various
persons
acting
together,
and
those
committed
by
a
criminal
organization.
Copyright-­‐
This
confidential
report
is
the
Intellectual
property
of
the
WAITO
Foundation
all
rights
reserved.
No
part
of
this
publication
may
be
reproduced
or
diffused
under
any
form
or
by
any
means,
including
photocopies
and
recordings,
or
by
any
information
storage
or
recovery
system.

18. 18
The
signatory
parties
to
this
convention
(47
Pan
European
Member
States)
will
grant
themselves
the
right
to
enter
into
bilateral
or
multilateral
agreements
on
issues
addressed
by
said
convention,
in
order
to
complete
or
reinforce
its
provisions
or
facilitate
the
implementation
of
the
principles
that
it
enshrines.
The
Group
of
Specialists
on
Counterfeit
Pharmaceutical
Products,
created
by
the
Committee
of
Ministers
of
the
Council
of
Europe
and
under
the
authority
of
the
European
Committee
on
Crime
Problems,
thus
delivers
a
highly
uncomplimentary
verdict
on
the
legal
arsenal
currently
applied
to
curb
the
production
of
counterfeit
medicines.
Firstly,
without
severe
sanctions
to
suppress
the
counterfeiting
of
pharmaceutical
products
and
medical
devices
worldwide-­‐
and
often
without
any
criminal
law
provisions
whatsoever-­‐,
it
is
easy
to
produce
and
distribute
counterfeit
products
without
running
any
particular
risks,
let
alone
being
penalized
for
it.
This
loophole
partly
explains
why
pharmaceutical
crime
has
become
an
area
of
activity
for
organized
crime.
Moreover,
national
legislations,
where
they
exist,
vary
considerably.
The
Group’s
experts
insist
on
the
fact
that
varied,
deterrent
and
proportionate
penalties
are
essential
in
punishing
the
perpetrators
of
these
violations
and
contributing
to
their
effective
prevention.
They
also
specify
that
the
control
of
this
type
of
counterfeiting
cannot
be
limited
to
violations
of
intellectual
property
rights7,
and
argue
that
the
main
objective
of
a
future
anti-­‐counterfeiting
instrument
should
focus
on
criminal
law
measures
against
criminal
behaviour,
targeting
medicines
and
medical
devices,
and
threatening
public
health.
Lastly,
the
group
of
experts
indicates
that
“There
is
no
harmonisation
or
at
least
approximation
in
international
law
of
the
offences
relating
to
counterfeiting
of
medicinal
products
and
medical
devices.
Furthermore,
at
the
time
of
internationalisation
of
trafficking
of
counterfeit
medicinal
products
and
medical
devices,
aggravated
by
internet
trade,
which
undermines
the
credibility
of
legitimately
distributed
genuine
products
and
makes
it
impossible
to
guarantee
the
quality
and
efficacy
of
products
supplied,
there
is
no
international
legal
instrument,
aiming
to
combat
pharmaceutical
crime
and
defining
corresponding
offences”.
Consumer
protection
“There
is
no
such
thing
as
a
good
counterfeiter,
who
has
anti-­‐brand
strategy
and
produces
fake
handbags,
and
a
bad
counterfeiter,
who
wants
to
poison
medicine
consumers
or
endanger
children
who
are
given
counterfeit
toys.
They
are
one
and
the
same.
The
purchase
of
counterfeit
luxury
products
directly
finances
the
counterfeiting
of
non-­‐
processed
products.
In
the
field
of
illegal
imitation,
there
is
no
difference
between
criminal
capital
that
kills
and
that
which
does
not”.
The
situation,
as
described
on
16
November
2004
by
the
President
of
an
intellectual
property
rights
defence
association,
has
hardly
changed.
Although
he
is
essentially
right,
he
suggests
that
the
consumer
could
be
considered
as
the
counterfeiter’s
“accomplice”.
It
is
therefore
essential
to
re-­‐establish
the
distinction
between
the
good
and
bad
intentions
at
play
in
the
act
of
purchasing.
7
According
to
Information
Solution
for
Pharmaceutical
and
Healthcare
Industries,
an
international
service
provider
that
provides
the
pharmaceutical
industry
with
commercial
data
and
consultancy
services,
within
European
Union
Member
States,
the
proportion
of
the
volume
of
medical
products
on
the
market
that
are
not
protected
by
a
patent
varies
from
69%
(Italy)
to
90%
(Cheque
Republic).
According
to
the
European
Generic
medicines
Association,
the
proportion
of
generic
medical
products
(not
protected
by
intellectual
property
rights)
in
comparison
with
the
volume
on
the
market
in
certain
European
countries
lies
between
7.2%
(Italy)
and
79.3%
(Lithuania/Estonia).
Copyright-­‐
This
confidential
report
is
the
Intellectual
property
of
the
WAITO
Foundation
all
rights
reserved.
No
part
of
this
publication
may
be
reproduced
or
diffused
under
any
form
or
by
any
means,
including
photocopies
and
recordings,
or
by
any
information
storage
or
recovery
system.

19. 19
The
purchasing
act:
psychological
considerations
The
large
majority
of
consumers
consider
that
illicit
trafficking
in
general,
and
counterfeiting
in
particular,
are
major
problems.
To
“buy
genuine”
or
“compliant”
products
on
a
daily
basis,
the
consumer
has
to
feel
at
ease
and
be
able
to
see
that
the
whole
consumption
chain
is
fair
and
genuine,
which
is
evidently
not
the
case.
The
consumer
and
the
trademark
These
personal
strategies
have
been
bolstered
by
a
critical,
almost
moral,
distance
acquired
in
respect
of
the
consumer
system,
raising
strong
doubts
about
it
and
making
people
disinclined
to
pay
a
high
price.
Why
pay
the
price
of
the
intangible
value
(the
trademark)
of
products,
when
we
do
not
know
whether,
and
how,
this
can
be
justified?
This
price
difference,
which
should
indicate
the
originality
and
uniqueness
of
the
trademark,
is
increasingly
seen
as
a
way
to
finance
marketing
and
communication,
rather
than
the
work
and
creativity
that
go
into
the
product.
For
the
consumer,
there
are
two
alternatives:
either
to
buy
a
similar
product,
meeting
the
same
criteria
as
the
brand
product,
but
at
a
lower
price;
or
find
a
brand
product
at
an
acceptable
price.
However,
while
the
illicit
purchase
of
so-­‐called
luxury
product
is
generally
done
knowingly,
the
purchase
of
consumer
goods
is
based
on
different
criteria.
Thus,
buying
brand-­‐name
clothes
at
a
market’s
cost
price,
knowing
that
only
authorized
shops
can
sell
the
brand,
automatically
makes
the
consumer
aware
of
his
responsibility.
However,
buying
a
brand
product
or
its
look-­‐alike
at
a
discount
price
in
a
hypermarket
is
an
act
of
opportunism,
done
in
good
faith.
This
distinguishes
the
dishonest
act,
severely
condemned
by
Marc
Antoine
Jamet
(occurring
in
an
illogical
environment8),
to
an
act
of
good
faith
(occurring
in
a
logical
environment),
which
is
innocent
until
proven
guilty.
This
nuance
between
the
accomplice
and
victim
consumer
points
to
the
potential
solutions
to
counterfeiting.
If
we
consider
that
the
consumer
is
the
victim,
solutions
should
focus
on
prevention
education
and
raising
awareness.
However,
if
we
consider
that
the
consumer
is
an
accomplice,
solutions
require
disciplinary
and
law
enforcement
measures.
Consequently,
penalties
and
law
enforcement
measures
are
only
valid
where
the
consumer’s
legal
situation
is
clearly
defined.
Moreover,
the
right
holder
is
responsible
for
providing
consumers
with
all
the
information
needed
to
make
an
educated
choice.
For
example,
France
is
now
affected
by
the
transit
of
counterfeit
medicines
that
pose
health
hazards.
Consumers
need
to
know
that
in
some
countries,
especially
in
Africa,
the
volume
of
counterfeit
medicines
is
particularly
high.
This
is
a
question
of
information.
Among
the
many
forms
of
counterfeit
Viagra,
some
do
not
even
contain
any
active
ingredients,
while
others
contain
adjuvants
that
increase
the
risks
of
heart
attack.
The
risk
in
consuming
counterfeit
medicines
is
increased
by
online
sales.
The
medicine
8
Counterfeiting
is
more
and
more
easy.
In
front
of
a
luxury
leather
goods
shop
in
Rome,
the
shop
window
dressers
sell
counterfeit
products
of
the
same
brand
when
the
shop
closes.
Everyday
consumables
such
as
cigarettes
can
be
bought
outside
distributions
circles.
What’s
more,
Internet
and
express
freight
enables
consumers
to
receive
counterfeit
products
in
less
than
48
hours.
Copyright-­‐
This
confidential
report
is
the
Intellectual
property
of
the
WAITO
Foundation
all
rights
reserved.
No
part
of
this
publication
may
be
reproduced
or
diffused
under
any
form
or
by
any
means,
including
photocopies
and
recordings,
or
by
any
information
storage
or
recovery
system.