Lobbying Activity
Meeting with Emmanuelle Du Chalard (Head of Unit Communications Networks, Content and Technology), Kilian Gross (Head of Unit Communications Networks, Content and Technology)
15 Sept 2025 · Exchange on Indicam’s position regarding current EU AI Policy
Response to Derogations to the prohibition of the destruction of unsold Apparel and Footwear
6 Aug 2025
INDICAM is the Italian Association that has as its mission the enforcement of the Intellectual Property Rights and the fight against counterfeits. Key provisions effectively enabling IP rights protection The derogation allowing destruction of products found to infringe IP rights (Art. 2(c)) is essential to ensure effective enforcement against counterfeiting and mirrors the evidence thresholds already relied upon in existing EU legislation, where judicial decisions, right holder notifications or substantiated internal findings can serve as a legal basis for lawful destruction (e.g. art. 23 Regulation (EU) 2013/608 concerning customs enforcement of intellectual property rights and destruction of goods). The inclusion of destruction based on enforceable contractual or licensing restrictions (Art. 2(d)) is appropriate, as it protects legitimate IP-based commercial strategies, particularly in the fashion sector where marketing authorisations are time-limited or territorially confined (e.g. apparel product availability is limited by seasonal collection or time-bound campaigns). In these contexts, contractual clauses (e.g. sell-off terms) are essential to preserve brand positioning and exclusivity, and mandatory stock retention beyond such terms would risk undermining the lawful exercise of IP rights and license agreements. Otherwise, sustainability obligations could inadvertently override lawful IP-related contractual terms. The provision addressing technical unfeasibility to remove or neutralise IP-sensitive design elements (Art. 2(e)) is well targeted, acknowledging that the reuse of such products when de-branding is not technically feasible would expose economic operators to risks of trademark infringement. Hence, under both EU and national IP law, the removal or alteration of trademarks from genuine goods without authorization of the legitimate right holder is prohibited (Art. 20(3) of the Italian Intellectual Property Code and CJEU case-law) and constitute unlawful modification of the goods, leading to dilution or impairment of the trademarks functions. For instance, in the case of a leather handbag whose material is embossed with a repeating monogram, it is technically impossible to remove the branding without destroying the very structure and aesthetic of the product itself, making lawful reuse unfeasible. Legal and operational concerns on the IP derogations The current reference to a final judicial decision in Article 2(c) risks unduly restricting the applicability of the derogation and should be revised to include all judicial decisions that are immediately enforceable, regardless of whether they are subject to appeal. This is particularly relevant for cases where IP infringement has been established through urgent proceedings resulting in binding interim measuressuch as pan-European injunctions issued under Regulation (EU) 2017/1001 and Directive 2004/48/EC. Excluding such enforceable measures from the scope of the derogation would weaken the effectiveness of judicial protection and undermine the practical enforcement of IP rights. Such an extension would be particularly proportionate and appropriate considering that Article 2(c) already allows the derogation to be triggered by a right holders notification or an internal investigation by the economic operator; circumstances that could offer a lower level of procedural guarantee than an enforceable judicial decision, although still subject to appeal.The obligation to justify destruction as proportionate in all IP-related cases regardless of whether the infringement has already been established by a judicial decision (Art. 2(c)) risks creating unnecessary procedural burdens and delaying destruction of clearly counterfeit goods. Such a requirement may undermine the effectiveness of enforcement actions and should not apply when infringement is confirmed through a judicial decision or a formal notification by competent authorities or right holders.
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