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16.5.2012 Official
Journal
of
the
European
Union L
129/1
I
(Legislative acts)
REGULATIONS
REGULATION (EU) No 386/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 19 April 2012
on entrusting the Office for Harmonization in the Internal Market (Trade Marks and Designs) with
tasks related to the enforcement of intellectual property rights, including the assembling of public
and private-sector representatives as a European Observatory on Infringements of Intellectual
Property Rights
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
return for their work and that their investment in
EUROPEAN UNION,
research and new ideas is protected.
Having regard to the Treaty on the Functioning of the European
Union, and in particular Article 114 and the first paragraph of
Article 118 thereof,
(3) A
sound,
harmonised
and
progressive
approach
to
intel
lectual property rights is fundamental in the endeavour
to fulfil the ambitions of the Europe 2020 Strategy
including A Digital Agenda for Europe.
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national
parliaments,
(4) The
constant
increase
in
infringements
of
intellectual
property rights constitutes a genuine threat not only to
the Union economy, but also, in many cases, to the
Having regard to the opinion of the European Economic and
health and safety of Union consumers. Therefore,
Social Committee (
effective, immediate and coordinated action at national,

1 ),
European and global levels is needed to successfully
combat this phenomenon.
Acting in accordance with the ordinary legislative procedure ( 2 ),
Whereas:
(5)
In the context of the overall intellectual property rights
strategy envisaged by the Council Resolution of
25 September 2008 on a comprehensive European
anti-counterfeiting and anti-piracy plan ( 3 ), the Council
(1) The
economic
well-being
of
the
Union
relies
on
sustained
called on the Commission to set up a European
creativity and innovation. Therefore, measures for their
Observatory on Counterfeiting and Piracy. The
effective protection are indispensable in ensuring its
Commission therefore formed a network of experts
future prosperity.
from the public and the private sectors and described
the tasks of that network in its Communication
entitled ‘Enhancing the enforcement of intellectual
property rights in the internal market’. The name of
(2) Intellectual
property
rights
are
vital
business
assets
that
help to ensure that creators and innovators get a fair
the European Observatory on Counterfeiting and Piracy
should be changed to the European Observatory
on Infringements of Intellectual Property Rights (‘the
( 1 ) OJ C 376, 22.12.2011, p. 62.
Observatory’).
( 2 ) Position of the European Parliament of 14 February 2012 (not yet
published in the Official Journal) and decision of the Council of
22 March 2012 (not yet published in the Official Journal).
( 3 ) OJ C 253, 4.10.2008, p. 1.

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L 129/2
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Official Journal of the European Union
16.5.2012
(6) That
Communication
stated
that
the
Observatory
should (10) In
its
Resolution
of
22
September
2010
on
enforcement
serve as the central resource for gathering, monitoring
of intellectual property rights in the internal market ( 5 ),
and reporting information and data related to all
the European Parliament called on the Member States
infringements of intellectual property rights. It should
and the Commission to extend the cooperation
be used as a platform for cooperation between represen
between the Office and national intellectual property
tatives from national authorities and stakeholders to
offices so as to include the fight against infringements
exchange ideas and expertise on best practices and
of intellectual property rights.
make recommendations to policymakers for joint
enforcement strategies. The Communication specified
that the Observatory would be hosted and managed by
(11) In
its
Resolution
of
12
May
2011
on
unlocking
the
the services of the Commission.
potential of cultural and creative industries ( 6 ), the
European Parliament urged the Commission to take
into account the specific problems encountered by
(7)
In its Resolution of 1 March 2010 on the enforcement of
small and medium-sized enterprises when it comes to
intellectual property rights in the internal market ( 1 ), the
asserting their intellectual property rights and to
Council invited the Commission, the Member States and
promote best practice and effective methods to respect
industry to provide the Observatory with available
those rights.
reliable and comparable data on counterfeiting and
piracy and to jointly develop and agree, in the context
of the Observatory, on plans to collect further
(12) In
its
Resolution
of
6
July
2011
on
a
comprehensive
information. The Council also invited the Observatory
approach on personal data protection in the European
to publish each year a comprehensive annual report
Union ( 7 ), the European Parliament called on the
covering the scope, scale and principal characteristics of
Commission to ensure full harmonisation and legal
counterfeiting and piracy as well as its impact on the
certainty, providing a uniform and high level of
internal market. That annual report should be prepared
protection of individuals in all circumstances.
using the relevant information provided in that regard by
the authorities of the Member States, the Commission
and the private sector within the limits of data protection
law. The Council also recognised the importance of
(13) In view of the range of tasks assigned to the Observatory,
developing new competitive business models enlarging
a solution is needed to ensure an adequate and
the legal offer of cultural and creative content and at
sustainable infrastructure for the fulfilment of its tasks.
the same time preventing and combating infringements
of intellectual property rights as necessary means for
fostering economic growth, employment and cultural
(14) Council
Regulation
(EC)
No
207/2009
of
26
February
diversity.
2009 on the Community trade mark ( 8 ) provides for
administrative cooperation between the Office and the
courts or authorities of the Member States, and the
(8) In
its
Conclusions
of
25
May
2010
on
the
future
revision
exchange of publications between the Office and the
of the Trade Mark system in the European Union (
central industrial property offices of the Member States.

2 ), the
Council called on the Commission to establish a legal
On that basis, the Office has established cooperation with
basis for the involvement of the Office for Harmon
national offices that are active in the field of protection
ization in the Internal Market (Trade Marks and
of intellectual property rights. Consequently, the Office
Designs) (‘the Office’) in enforcement-related activities,
already possesses, to a considerable extent, the necessary
including the fight against counterfeiting, in particular
experience and expertise to provide an adequate and
through fostering its cooperation with the national
sustainable infrastructure in the field of the Observatory’s
trade mark offices and the Observatory. In that respect,
tasks.
Directive 2004/48/EC of the European Parliament and of
the Council of 29 April 2004 on the enforcement of
intellectual property rights ( 3 ) provides, inter alia, for
(15) The
Office
is
therefore
well
placed
to
be
entrusted
with
certain measures to promote cooperation, including the
carrying out those tasks.
exchange of information, among Member States and
between Member States and the Commission.
(16) Those
tasks
should
relate
to
all
intellectual
property
rights covered by Directive 2004/48/EC, since in many
(9) In
its
Recommendation
of
26
March
2009
on
cases, infringing acts affect a bundle of intellectual
strengthening security and fundamental freedoms on
property rights. Furthermore, data and the exchange of
the internet ( 4 ), the European Parliament recommended
best practices are needed on the entire abovementioned
that the Council preserve full and safe access to the
range of intellectual property rights, in order to obtain a
internet while encouraging private/public cooperation in
complete picture of the situation and to enable compre
enhancing law enforcement cooperation.
hensive strategies to be devised with a view to reducing
infringements of intellectual property rights.
( 1 ) OJ C 56, 6.3.2010, p. 1.
( 2 ) OJ C 140, 29.5.2010, p. 22.
( 5 ) OJ C 50 E, 21.2.2012, p. 48.
( 3 ) OJ L 157, 30.4.2004, p. 45. Corrected version in OJ L 195,
( 6 ) Not yet published in the Official Journal.
2.6.2004, p. 16.
( 7 ) Not yet published in the Official Journal.
( 4 ) OJ C 117 E, 6.5.2010, p. 206.
( 8 ) OJ L 78, 24.3.2009, p. 1.

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16.5.2012 Official
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European
Union L
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(17) The
tasks
that
the
Office
should
carry
out
can
be
linked
(23) With
regard
to
representatives
of
the
private
sector,
the
to the enforcement and reporting measures laid down by
Office should, when assembling the Observatory in the
Directive 2004/48/EC. Thus, the Office should provide
context of its activities, involve a representative selection
services to national authorities or operators which
of the economic sectors — including the creative
affect, in particular, the homogenous implementation of
industries — most concerned by or most experienced
the Directive and which are likely to facilitate its appli
in the fight against infringements of intellectual
cation. The Office’s tasks should therefore be considered
property rights, in particular representatives of right
as closely linked to the subject matter of acts approxi
holders, including authors and other creators, as well as
mating the laws, regulations and administrative
internet intermediaries. Also, a proper representation of
provisions of the Member States.
consumers and of small and medium-sized enterprises
should be ensured.
(18) Assembled by the Office, the Observatory should become
a centre of excellence on information and data relating to
(24) The
information
obligations
imposed
by
this
Regulation
infringements of intellectual property rights, by bene
on the Member States and on the private sector should
fiting from the Office’s expertise, experience and
not create unnecessary administrative burdens and should
resources.
endeavour to avoid duplication as regards data already
provided by Member States and private-sector represen
tatives to Union institutions under existing Union
(19) The
Office
should
offer
a
forum
that
brings
together
reporting requirements.
public authorities and the private sector, ensuring the
collection, analysis and dissemination of relevant
objective, comparable and reliable data regarding the
(25) Since
the
objective
of
this
Regulation,
namely
to
entrust
value of intellectual property rights and infringements
the Office with tasks related to the enforcement of intel
of those rights, identifying and promoting best
lectual property rights, cannot be sufficiently achieved by
practices and strategies to enforce intellectual property
the Member States and can therefore, by reason of its
rights, and raising public awareness of the impact of
effect, be better achieved at Union level, the Union may
infringements of intellectual property rights. Furthermore,
adopt measures, in accordance with the principle of
the Office should fulfil additional tasks, such as
subsidiarity as set out in Article 5 of the Treaty on
improving the understanding of the value of intellectual
European Union. In accordance with the principle of
property rights, fostering the exchange of information on
proportionality, as set out in that Article, this Regulation
new competitive business models which enlarge the legal
does not go beyond what is necessary in order to achieve
offer of cultural and creative content, enhancing the
that objective,
expertise of persons involved in the enforcement of intel
lectual property rights by appropriate training measures,
increasing knowledge of techniques to prevent counter
HAVE ADOPTED THIS REGULATION:
feiting, and improving cooperation with third countries
and international organisations. The Commission should
be associated with the activities undertaken by the Office
Article 1
under this Regulation.
Subject matter and scope
This Regulation entrusts the Office for Harmonization in the
(20) The
Office
should
thus
facilitate
and
support
the
activities
Internal Market (Trade Marks and Designs) (‘the Office’) with
of national authorities, the private sector and the Union
tasks aimed at facilitating and supporting the activities of
institutions relating to the enforcement of intellectual
national authorities, the private sector and the Union insti
property rights and in particular their activities in the
tutions in the fight against infringements of the intellectual
fight against infringements of those rights. The exercise
property rights covered by Directive 2004/48/EC. In carrying
by the Office of its powers under this Regulation does
out these tasks the Office shall organise, administer and support
not prevent Member States from exercising their com
the gathering of experts, authorities and stakeholders assembled
petences. The Office’s tasks and activities under this
under the name ‘European Observatory on Infringements of
Regulation do not extend to participation in individual
Intellectual Property Rights’ (‘the Observatory’).
operations or investigations carried out by the competent
authorities.
The tasks and activities of the Office under this Regulation do
not extend to participation in individual operations or investi
(21) In
order
to
fulfil
those
tasks
in
the
most
efficient
manner,
gations carried out by the competent authorities.
the Office should consult and cooperate with other auth
orities at national, European and, where appropriate,
international levels, create synergies with the activities
Article 2
carried out by such authorities and avoid any duplication
of measures.
Tasks and activities

1. The
Office
shall
have
the
following
tasks:
(22) The
Office
should
implement
the
tasks
and
activities
relating to the enforcement of intellectual property
(a) improving understanding of the value of intellectual
rights by making use of its own budgetary means.
property;

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Official Journal of the European Union
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(b) improving understanding of the scope and impact of
effects on small and medium-sized enterprises, as well as
infringements of intellectual property rights;
on health, the environment, safety and security;
(c) enhancing knowledge of best public and private sector
(e) collecting, analysing and disseminating information
practices to protect intellectual property rights;
regarding best practices between the representatives
meeting as the Observatory, and, if applicable, making
recommendations for strategies based on such practices;
(d) assisting in raising citizens’ awareness of the impact of
infringements of intellectual property rights;
(f) drawing up reports and publications to raise awareness
(e) enhancing the expertise of persons involved in the
amongst Union citizens of the impact of infringements of
enforcement of intellectual property rights;
intellectual property rights and to that end, organising
conferences, events and meetings at European and inter
national levels as well as assisting national and Europe-
(f) enhancing knowledge of technical tools to prevent and
wide actions, including online and offline campaigns, prin
tackle infringements of intellectual property rights,
cipally by providing data and information;
including tracking and tracing systems which help to
distinguish genuine products from counterfeit ones;
(g) monitoring the development of new competitive business
models which enlarge the legal offer of cultural and creative
(g) providing mechanisms which help to improve the online
content, and encouraging the exchange of information and
exchange, between Member States’ authorities working in
raising consumer awareness in this respect;
the field of intellectual property rights, of information
relating to the enforcement of such rights, and fostering
cooperation with and between those authorities;
(h) developing and organising online and other forms of
training for national officials involved in the protection
of intellectual property rights;
(h) working, in consultation with Member States, to foster
international cooperation with intellectual property offices
in third countries so as to build strategies and develop tech
(i) organising
ad
hoc
meetings
of
experts,
including
academic
niques, skills and tools for the enforcement of intellectual
experts and relevant representatives of civil society, to
property rights.
support its work under this Regulation;
2. In
the
fulfilment
of
the
tasks
set
out
in
paragraph
1,
the (j) identifying and promoting technical tools for professionals
Office shall carry out the following activities in accordance with
and benchmark techniques, including tracking and tracing
the work programme adopted pursuant to Article 7, and in line
systems which help to distinguish genuine products from
with Union law:
counterfeit ones;
(a) establishing a transparent methodology for the collection,
analysis and reporting of independent, objective,
(k) working with national authorities and the Commission to
comparable and reliable data relating to infringements of
develop an online network facilitating the exchange of
intellectual property rights;
information on infringements of intellectual property
rights between public administrations, bodies and organi
sations in the Member States dealing with the protection
(b) collecting, analysing and disseminating relevant objective,
and enforcement of those rights;
comparable and reliable data regarding infringements of
intellectual property rights;
(l) working in cooperation with, and building synergies
between, the central industrial property offices of the
(c) collecting, analysing and disseminating relevant objective,
Member States, including the Benelux Office for Intellectual
comparable and reliable data regarding the economic
Property and other Member States’ authorities working in
value of intellectual property and its contribution to
the field of intellectual property rights, with a view to
economic growth, welfare, innovation, creativity, cultural
developing and promoting techniques, skills and tools
diversity, the creation of high-quality jobs and the devel
relating to the enforcement of intellectual property rights,
opment of high quality products and services within the
including training programmes and awareness campaigns;
Union;
(m) developing, in consultation with the Member States,
(d) providing regular assessments and specific reports by
programmes for the provision of technical assistance to
economic sector, geographic area and type of intellectual
third countries as well as developing and delivering
property right infringed, which evaluate, inter alia, the
specific training programmes and events for officials from
impact of infringements of intellectual property rights on
third countries who are involved in the protection of intel
society and the economy, including an assessment of the
lectual property rights;

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16.5.2012 Official
Journal
of
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European
Union L
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(n) making recommendations to the Commission on issues
(b) private-sector representatives.
falling within the scope of this Regulation, on the basis
of a request from the Commission;
6. Members
or
other
representatives
of
the
European
Parliament and representatives from the Commission shall be
(o) carrying out similar activities necessary in order to enable
invited to any of the meetings covered by this Article, either as
the Office to fulfil the tasks set out in paragraph 1.
participants or observers, as appropriate.
3. In
carrying
out
the
tasks
and
activities
referred
to
in
para
7. The names of the representatives attending, the agenda
graphs 1 and 2, the Office shall comply with existing provisions
and the minutes of the meetings referred to in this Article
of Union law on data protection.
shall be published on the Office’s website.
Article 3
Article 5
Financing
Information obligations
The Office shall at all times ensure that the activities entrusted
to it by this Regulation are carried out by making use of its
1. As
appropriate,
in
accordance
with
national
law,
including
own budgetary means.
the law governing the processing of personal data, Member
States shall, at the request of the Office or on their own initi
ative:
Article 4
Meetings of the Observatory
(a) inform the Office of their overall policies and strategies on
1. In order to carry out the activities referred to in
the enforcement of intellectual property rights and any
Article 2(2), the Office shall at least once per year invite to
changes thereto;
meetings of the Observatory representatives from public admin
istrations, bodies and organisations in the Member States
dealing with intellectual property rights and representatives
(b) provide available statistical data on infringements of intel
from the private sector, for the purpose of their participation
lectual property rights;
in the Office’s work under this Regulation.
(c) inform the Office of important case-law.
2. Private-sector
representatives
invited
to
meetings
of
the
Observatory shall include a broad, representative and balanced
range of Union and national bodies representing the different
2. Without prejudice to the law governing the processing of
economic sectors, including the creative industries, most
personal data and to the protection of confidential information,
concerned by or most experienced in the fight against
private-sector representatives meeting as the Observatory shall,
infringements of intellectual property rights.
when possible, at the request of the Office:
Consumer organisations, small and medium-sized enterprises,
(a) inform the Office of policies and strategies in their field of
authors and other creators shall be properly represented.
activity on the enforcement of intellectual property rights
and any changes thereto;
3. The
Office
shall
invite
each
Member
State
to
send
at
least
one representative from its public administration to meetings of
the Observatory. In that context, Member States shall ensure
(b) provide statistical data on infringements of intellectual
continuity in the Observatory’s work.
property rights in their field of activity.
4. The
meetings
referred
to
in
paragraph
1
may
be
comple
Article 6
mented by working groups within the Observatory made up of
The Office
representatives from Member States and representatives from
the private sector.
1. The
relevant
provisions
of
Title
XII
of
Regulation
(EC)
No 207/2009 shall apply to the carrying-out of the tasks and
activities provided for under this Regulation.
5. Where
appropriate,
and
in
addition
to
the
meetings
referred to in paragraph 1, the Office shall organise meetings
consisting of:
2. Using
the
powers
conferred
by
Article
124
of
Regulation
(EC) No 207/2009, the President of the Office shall adopt the
internal administrative instructions and shall publish the notices
(a) representatives from the public administrations, bodies and
that are necessary for the fulfilment of all the tasks entrusted to
organisations in the Member States; or
the Office by this Regulation.

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Article 7
(f) an overall assessment of the proper representation in the
Observatory of all the actors mentioned in Article 4(2).
Content of the work programme and of the management
report
1. The
Office
shall
draw
up
an
annual
work
programme
that Before submitting the management report to the European
appropriately prioritises the activities under this Regulation and
Parliament, the Commission and the Administrative Board, the
for the meetings of the Observatory, in line with the Union’s
President of the Office shall consult the representatives referred
policies and priorities in the field of protection of intellectual
to in point (a) of Article 4(5) on the relevant parts of the report.
property rights and in cooperation with the representatives
referred to in point (a) of Article 4(5).
Article 8
2. The
work
programme
referred
to
in
paragraph
1
shall
be
Evaluation
submitted to the Office’s Administrative Board for information.
1. The
Commission
shall
adopt
a
report
evaluating
the
appli
cation of this Regulation by 6 June 2017.
3. The
management
report
provided
for
in
point
(d)
of
Article 124(2) of Regulation (EC) No 207/2009 shall contain
at least the following information concerning the Office’s tasks
2. The evaluation report shall assess the operation of this
and activities under this Regulation:
Regulation, in particular as regards its impact on the
enforcement of intellectual property rights in the internal
(a) a review of the main activities carried out during the
market.
preceding calendar year;
3. The
Commission
shall,
when
preparing
the
evaluation
(b) the results achieved during the preceding calendar year,
report, consult the Office, the Member States and the represen
accompanied, where appropriate, by sectoral reports
tatives meeting as the Observatory on the issues referred to in
analysing the situation in the different industry and
paragraph 2.
product sectors;
(c) an overall assessment of the fulfilment of the Office’s tasks
4. The
Commission
shall
transmit
the
evaluation
report
to
as provided for in this Regulation and in the work
the European Parliament, the Council and the European
programme drawn up in accordance with paragraph 1;
Economic and Social Committee and shall undertake a broad
consultation among stakeholders on the evaluation report.
(d) an overview of the activities that the Office intends to
undertake in the future;
Article 9
Entry into force
(e) observations on the enforcement of intellectual property
rights and potential future policies and strategies,
This Regulation shall enter into force on the twentieth day
including on how to enhance effective cooperation with
following that of its publication in the Official Journal of the
and between Member States;
European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Strasbourg, 19 April 2012.
For the European Parliament
For the Council
The President
The President
M. SCHULZ
M. BDSKOV

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