COMMISSION STAFF WORKING DOCUMENT Accompanying the document REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE Evaluation of the Application of the Regulation (EU) No 386/2012 of 19 April 2012
Date: 2020-11-24
Institutions: Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs, European Commission
Subjects: European Union Intellectual Property Office, application of EU law, intellectual property, operation of the Institutions

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 24.11.2020  SWD(2020) 282 final  COMMISSION STAFF WORKING DOCUMENT Accompanying the document REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE Evaluation of the Application of the Regulation (EU) No 386/2012 of 19 April 2012 {COM(2020) 755 final}  
 
 
COMMISSION STAFF WORKING DOCUMENT 

Accompanying the document 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, 
THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE 

Evaluation of the Application of the Regulation (EU) No 386/2012 of 19 April 2012 

1. 

2. 

INTRODUCTION ................................................................................................................................ 4 

BACKGROUND TO THE INTERVENTION ..................................................................................... 4 

Description and objectives .......................................................................................................... 4 

Baseline and points of comparison (2009-2012) ......................................................................... 7 

3. 

IMPLEMENTATION / STATE OF PLAY .......................................................................................... 9 

Framework, resources and network of representatives to the Observatory ................................. 9 

Studies, surveys and reports ...................................................................................................... 11 

Training, workshops and seminars ............................................................................................ 13 

Raising awareness ..................................................................................................................... 13 

Tools and databases ................................................................................................................... 14 

International cooperation ........................................................................................................... 14 

4. 

EVALUATION METHODOLOGY ................................................................................................... 15 

Limitations and robustness of findings ..................................................................................... 15 

5.  ANSWERS TO THE EVALUATION QUESTIONS ......................................................................... 16 

How relevant is the EU intervention in IP enforcement ............................................................ 16 

Effectiveness of the Regulation and its implementation ........................................................... 19 

Efficiency of the initiative and its implementation ................................................................... 29 

Coherence of EU intervention ................................................................................................... 35 

EU added value of the Office’s Observatory ............................................................................ 37 

6. 

CONCLUSIONS AND LESSONS-LEARNED ................................................................................. 38 

ANNEX 1: PROCEDURAL INFORMATION ............................................................................................ 42 

ANNEX 2: STAKEHOLDER CONSULTATION – SYNOPSIS REPORT ................................................ 46 

1 

 
 
 
Glossary 

Term or acronym 

Meaning or definition 

ACIST 

ACRIS 

Anti-Counterfeiting Intelligence Support Tool 

Anti-Counterfeiting Rapid Intelligence System 

Commission  

European Commission 

Council 

CEPOL 

EDB 

EU 

EIPPN 

EUIPO 

Eurojust 

Europol 

Council of the European Union 

European Union Agency for Law Enforcement Training 

Enforcement Data Base 

European Union 

European Intellectual Property Prosecutors Network 

European Union Intellectual Property Office 

European Union Agency for Criminal Justice Cooperation 

European Union Agency for Law Enforcement Cooperation 

Impact assessment 

Commission  Staff  Working  Paper  “Impact  assessment”  of 
24 May 2011, SEC(2011) 612 final 

IP 

IPR 

IPEP 

Intellectual property 

Intellectual property rights 

IP Enforcement Portal 

Observatory 

European  Observatory  on  Infringements  of  Intellectual  Property 
Rights 

2 

 
 
 
OECD 

Office 

OLAF 

Organisation for Economic Co-operation and Development 

European Union Intellectual Property Office (EUIPO) 

The European Anti-Fraud Office 

3 

 
1.  INTRODUCTION 

The  European  Union  Intellectual  Property  Office  (‘the  Office’)1  manages  the  European  Union 
trade  mark  and  the  Community  design  systems  (receiving,  examining  and  deciding  on 
applications for the registration of trade marks and designs as well as keeping public records of 
such  rights,  their  proprietors,  etc.)2.  In  addition,  the  Office  facilitates  the  activities  of  national 
authorities,  the  private  sector  and  the  EU  institutions  in  the  fight  against  infringements  of 
intellectual  property  (IP)  rights  (that  is,  not  only  trade  marks  and  designs  but  also  patents, 
copyright,  geographic  indications,  etc.).  This  second  set  of  tasks  were  entrusted  to  the  Office 
under Regulation No 386/20123 (‘the Regulation’) which further specifies that “In carrying out 
these tasks the Office shall organise, administer and support the gathering of experts, authorities 
and  stakeholders  assembled  under  the  name  ‘European  Observatory  on  Infringements  of 
Intellectual Property Rights’ (‘the Observatory’)”. 

This report evaluates the implementation and functioning of the Regulation, assessing whether its 
initial objectives are still valid and whether they were met in an efficient and coherent way. For 
that  purpose,  the  evaluation  examined  the  activities  carried  out  by  the  Office  under  the 
Regulation, since its entry into force on 5 June 2012, until 31 December 2019. The evaluation is 
required by the reporting obligation under Article 8 of the Regulation4. 

2.  BACKGROUND TO THE INTERVENTION 

Description and objectives 

The share of intangible assets in companies’ overall value has risen from 17% in 1975, over 68% 
in  1995,  to  84%  in  20155.  Intellectual  property  rights  (IPR)  help  businesses  to  ensure  that 
investment  in  intangibles  (such  as  inventions,  brands,  and  product  design)  results  in 
competitiveness  gains,  generating  revenues,  growth  and  jobs.  Trade  marks  allow  consumers  to 
identify good quality products and repeat rewarding experiences, therefore providing incentives 
for manufacturers to continually improve their products. However, popular branded products are 
too  often  copied,  using  poor  materials,  assembled  in  clandestine  sites  that  elude  safety 
regulations, deceiving consumers and putting their health and safety at risk. At the same time, the 

1  The  Office  was  initially  named  “Office  for  Harmonization  in  the  Internal  Market  (Trade  Marks  and 
Designs)”. The Office was created by Council Regulation (EC) No 40/94 which was repealed by Council 
Regulation  (EC)  No  207/2009  of  26  February  2009  on  the  European  Union  trade  mark  (OJ  L  78, 
24.3.2009,  p.  1).  Regulation  No  207/2009  was  amended  several  times  including  by  Regulation  (EU) 
2015/2424 of the European Parliament and of the Council, which operated the change of agency’s name 
to  European  Union  Intellectual  Property  Office  (EUIPO).  Regulation  No  207/2009  and  its  different 
amendments were codified by Regulation (EU) 2017/1001 of the European Parliament and of the Council 
of 14 June 2017 on the European Union trade mark 

2  Council  Regulation  (EC)  No  6/2002  of  12  December  2001  on  Community  designs  (OJ  EC  No  L  3  of 

5.1.2002, p. 1).  

3 Regulation 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 (OJ EC No L 
129 of 16.5.2012, p. 1). 

4 According to Article 8 of the Regulation “The Commission shall adopt a report evaluating the application 

of this Regulation by 6 June 2017”. 

5 S&P 500 intangible asset value study, 2017.  

4 

 
 
                                                      
advent  of  the  Internet  has made  it  easy  to  make  available  copyright  content  without  rewarding 
authors and creators for their works. 

As  with  any  illicit  market,  it  is  not  easy  to  determine  the  volume  of  counterfeiting  and  piracy. 
According  to  a  study  from  the  Organisation  for  Economic  Co-operation  and  Development 
(OECD) released in 20086 without regular, reliable and robust data on the scale, scope and impact 
of  the  problem,  it  is  not  possible  to  measure  trends  and  threats,  and  therefore  to  improve  the 
efficiency  of  IP  enforcement.  The  same  study  found  that  “Governments,  business  and  other 
interested  stakeholders  could  do  a  far  better  job  collecting  and  analysing  information  that  is 
essential  for  designing  and  implementing  effective  strategies  for  combating  counterfeiting  and 
piracy”. 

In  2009,  the  Commission  created  the  European  Observatory  on  Infringements  of  Intellectual 
Property7  (‘the  “Observatory’),  an  informal  platform  bringing  together,  and  enabling  close 
cooperation and dialogue between, the departments of the Commission, national authorities and 
private sector stakeholders concerned by the enforcement of IPR. Managed by the departments of 
the Commission, the Observatory’s main goals were to: 

  collect data on the scope, scale and impact of infringements of IPR in the EU;  

 

 

 

improve cooperation between those engaged in protecting and enforcing IPR;  

share best practice in enforcement; and  

raise awareness among consumers. 

In 20108, the Council of the European Union (“the Council”) invited the Commission to elaborate 
further  on  the  scope  of  competences,  tasks  and  role  of  the  Observatory,  supporting  its  activity 
through  existing  institutional  structures.  It  also  encouraged  national  authorities,  right  holders, 
consumer  organisations  and  other  stakeholders  from  all  sectors,  to  actively  participate  in,  and 
contribute to the work of the Observatory. Furthermore, the Council invited the Commission, the 
Member States and industry to provide the Observatory with available information and to jointly 
develop  and  agree  on  plans  to  collect  further  information,  and  to  jointly  develop  a  common 
methodology  for  collecting  data.  The  Council  also  encouraged  the  Commission,  the  Member 
States  and  stakeholders  to  implement  effective  awareness  campaigns.  In  addition,  the  Council 
also invited the Observatory to explore the need for the implementation of European Union level 
training programmes for those involved in combating counterfeiting and piracy. In addition, the 
Council  requested 
involving 
representatives  from  public  authorities,  private  sector  bodies  and  consumer  organisations,  to 
promote successful and proportional solutions against counterfeiting and piracy. The Council also 
invited the Commission to assess, in close cooperation with Member States, how best to enhance 
coordination, cooperation, information exchange and mutual assistance between all national and 
European authorities involved in combating counterfeiting and piracy with the cooperation of the 
economic operators. 

to  facilitate  regular  experts’  meetings, 

the  Observatory 

Following  the  Council’s  invitation  to  review  the  scope  of  competences,  tasks  and  role  of  the 
Observatory,  the  Commission  studied  possible  means  of  providing  the  Observatory  with  a 
sustainable  infrastructure  that  would  allow  it  to  fulfil  a  broadened  range  of  tasks,  in  a  more 
effective way. 

6 OECD, The economic impact of counterfeiting and piracy, 2008 

7 Communication from the Commission “Enhancing the enforcement of intellectual property rights in the 

internal market”, 11 September 2009 COM(2009)467. 

8  Council  Resolution  of  1  March  2010  on  the  enforcement  of  intellectual  property  rights  in  the  internal 

market (2010/C 56/01). 

5 

 
                                                      
As  a  result,  and  based  on  an  impact  assessment9,  on  24  May  2011  the  Commission  adopted  a 
proposal for a regulation that would entrust the management and the tasks of the Observatory to 
the  Office.  The  operational  aim  was  ensuring  “that  the  Observatory  had  the  necessary 
infrastructure to deliver its activities effectively, as quickly as possible and with minimum costs 
for the EU budget.” 

The Regulation was adopted on19 April 2012 and assigns the Office with the following specific 
tasks10: 

 

improving understanding of the value of IP and of the scope and impact of infringements 
of IPR;  

  enhancing knowledge of public and private sector practices to protect IPR;  

  assisting in raising citizens’ awareness of the impact of infringements of IPR;  

  enhancing  the  expertise  of  individuals  involved  in  the  enforcement  of  IPR;  and  on 

technical tools to prevent and tackle infringements of IPR;  

  providing mechanisms to improve the online exchange, between national authorities, of 
information  on  the  enforcement  of  IPR,  and  fostering  cooperation  with  and  between 
those authorities;  

  working  to  improve  international  cooperation  with  IP  offices  in  non-EU  countries  to 

build strategies and develop skills and tools to enforce IPR 

The  Regulation  sets  out  in  detail  the  activities  that  the  Office  should  carry  out  to  fulfil  these 
tasks11, namely; 

  Collecting, analysing and reporting data and information on the economic value of IP, on 
infringements  of  IPR  and  their  impact,  as  well  as  on  best  practices  for  preventing  or 
combating infringements; 

  drawing up publications and organising events to raise awareness amongst citizens of the 
impact of infringements of IPR, as well as assisting in national and European awareness 
actions  

  monitoring legal offers of cultural and creative content, and raising consumer awareness 

 

 

in this respect 
identifying  and  promoting  skills,  tools  related  to  preventing  and  combating  IP 
infringement, including training for officials involved in protecting  IPR 
improving information sharing on infringements of IPR between public administrations 
and relevant organisations;  

  programmes providing assistance to non-EU countries. 

The  Regulation  also states  that to  carry  out these  activities, the  Office  “shall  at  least  once  per 
year  invite  to  meetings  of  the  Observatory  representatives  from  public  administrations,  bodies 
and  organisations  in  the  Member  States  dealing  with  intellectual  property  rights  and 
representatives from the private sector, for the purpose of their participation in the Office’s work 
under this Regulation”12. The Regulation provides for the creation of working groups under the 
Observatory made up of representatives from Member States and the private sector 13. 

Under  Article  3  of  the  Regulation,  the  Office  “shall  at  all  times  ensure  that  the  activities 
entrusted to it by this Regulation are carried out by making use of its own budgetary means”. 

9 Commission Staff Working Paper of 24 May 2011, SEC(2011) 612 final, p. 21 (‘impact assessment’). 
10 Article 2(1) of the Regulation. 
11 Article 2(2) of the Regulation. 
12 Article 4(1) of the Regulation. 
13 Article 4(4) of the Regulation. 

6 

 
                                                      
Baseline and points of comparison (2009-2012) 

In  2009  there  was  little  data  available  on  the  volume  and  impact  of  counterfeiting,  piracy  and 
IPR. One of the more reliable sources of information available were the reports published by the 
Commission  on  annual  customs  detentions  at  EU  borders.  Such  reports  remain  today  a  major 
source of information on customs’ detentions. These relate to attempts to import physical goods 
into  the  EU.  The  reports  on  customs  detentions  do  not  cover  seizures  of  counterfeits 
manufactured  or  placed  on  the  single  market.  They  also  do  not include  data  on  other  forms  of 
infringement of IPR (such as online illegal offer of movies, music and live sport events protected 
by copyright).  

Statistical  data  were  otherwise  scarce  and  often  supplied  on  a  one-time-off  basis.  Business 
organisations representing the interests of owners of IPR, also published data, but using different 
and not always transparent, methodologies. 

There was also no coordinated effort for awareness raising and little was known about consumer 
behaviour  towards  counterfeiting  and  piracy,  consumer’s  perception  of  IP  or  the  views  of 
targeted groups such as young people. The Eurobarometer would sporadically include a limited 
number of questions on IP, with no follow-up in subsequent years.  

In  addition,  there  was  insufficient  cooperation  between  the  national  authorities.  Cooperation 
existed  in  customs,  promoted  and  coordinated  at  EU  level  by  the  Commission,  in  the  form  of 
training,  events  and  electronic  systems  to  exchange  information  on  IPR  infringing  goods. 
However, other authorities involved in the fight against counterfeiting and piracy, such as police 
forces  not  dealing  with  border  issues,  were  not  involved  in  this  cooperation.  There  was  no 
dedicated  permanent  mechanism  enabling  mutual  learning  through  experience  and  knowledge 
sharing focusing on IP enforcement in a comprehensive manner, bringing together all the relevant 
authorities  (customs,  police,  public  prosecutors,  officials  from  IP  offices  and  ministries  in  the 
Member  States,  etc.).  Moreover,  there  was  little  or  no  cooperation  at  EU  level  between  public 
authorities and holders of IPR and there was no online tool making it possible for right holders to 
share with enforcement authorities throughout the EU data relevant to facilitate the enforcement 
of IPR. 

Table 1 
Baseline 
(Commission own sources)  

Independent EU-wide data 

on the economic value of IP  

on infringements of IP 
(business models, methods and routes, etc.) 

on the volume and impact of infringement of IP 
(on loss of sales, jobs, taxes, etc.) 

Awareness 

Non-existent 

Non-existent 

Limited to customs data 

Campaigns, events, social media and publications 

National driven, sporadic and uncoordinated  

EU-wide independent research on IP awareness 
among consumers, young people, SMEs 

Best practices 

Enhance knowledge of best public and private 
sector practices to protect IPR 

EU wide information on legal offers 

Sporadic, very limited in scope and inconsequential 

Limited to customs and SMEs 

Dissemination information on the availability of 
copyright protected content to reduce demand for 

Non-existent 

7 

 
illegal offers 

Developing skills 

Training officials involved in the enforcement of 
IPR 

Limited to customs 

Technical tools 

Identifying and promoting technical tools, 
including track and trace systems for genuine goods 

Non existent 

Exchange of information tools 

Tools to exchange information on infringements of 
IPR between national authorities 

Limited to customs 

Non-EU countries 

Technical  assistance  to  non-EU  countries,  training 
programmes  and  events  for  officials  from  non-EU 
countries 

Limited to customs 

The  launch  of  the  Observatory  was  a  first  important  step  to  changing  the  state  of  affairs. 
However, there were limited human and financial resources available within departments of the 
Commission.  On  9  April  2012,  the  date  of  the  adoption  of  the  Regulation,  the  Observatory 
network  was  composed  of  27  representatives  from  Member  States  and  38  representatives from 
the private sector, which was in need of enlargement (in particular civil society representatives, 
but  also  relevant  international  organisations). The  Observatory  was  managed  by  a  team  of  two 
administrators  and  one  assistant  (who  was  temporarily  seconded  to  the  department  of  the 
Commission by the Office). 

Table 2  
Observatory Staff and Representatives by April 2012 
(Commission own sources) 

Staff assigned to the Observatory 

Representatives to the Observatory: 

Breakdown of representatives: 

Public sector 

Private sector 

Consumers and civil society 

Observers 

Members of the European Parliament 

3 

66 

27 

38 

1 

-- 

-- 

The departments of the Commission created the foundations of what the Office’s Observatory is 
today. While it was not able to collect, assess and report on levels of infringement or on the value 
of  IP,  it  paved  the  way  for  a  comprehensive  approach  to  statistical  data  on  IPR  and  their 
infringement  by  launching  a  study  on  methodology  to  measure  the  impact  of  infringements  of 
IPR. Due to the scarcity of human and financial resources, the Observatory’s remaining activities 
consisted  mainly  in  organising  meetings  with  stakeholders  to  exchange  best  practice.  Indeed, 
there was no appropriate funding to organise events, trainings and campaigns, and there was no 
suitable structure to develop and operate a major set of online tools for public authorities and IPR 
holders. 

8 

 
 
 
The  following  table  summarises  the  Observatory’s  activities  during  the  two  years  and  seven 
months  that  followed  its  creation  (September  2009),  until  they  were  transferred  to  the  Office 
(April 2012): 

Table 3 

Observatory output from September 2009 to June 2012 

(Commission own sources) 

STUDIES 

Legal studies on civil law enforcement of IPR 

Economic studies on IP 

Studies on awareness of IP 

Studies on infringements of IPR 

Studies on enforcement of IPR 

Other studies 

Total studies  

AWARENESS 

4 

--- 

--- 

--- 

--- 

--- 

4 

Awareness campaigns carried out or funded 

--- 

TRAINING 

Training events carried out 

Number of participants 

TOOLS & DATABASES 

Enforcement tools 

Legal use of IPR 

Training tools 

--- 

--- 

--- 

--- 

--- 

3.  IMPLEMENTATION / STATE OF PLAY 

Framework, resources and network of representatives to the Observatory 

In  order  to  implement  the  tasks  assigned  to  it  by  the  Regulation,  the  Office  created  the 
Observatory department14.  Its activities are funded by the Office’s budget which is financed by 

14 The term “Observatory” refers to the body of stakeholders foreseen in Article 4 of the Regulation, The 
Office named its new department the “Observatory” because the organisation of the meetings and the 
works of the Observatory is one of its main tasks. The literature reviewed in the evaluation, including 
the  study  by  Technopolis  (‘the  contractor’),  sometimes  refers  to  activities  of  the  Observatory  “. 

9 

 
 
 
 
 
 
                                                      
the fees the Office charges from the users of the EU trade marks and of the Community designs 
systems.  The  Office’s  Observatory  team  had  34  members  of  staff  at  the  end  of  201215.  By  31 
December 2019 this number had risen to 55, corresponding to 5,3% of the statutory Office staff16. 
The  Office’s  expenditure  on  the  Observatory  increased  from  €2.44  million  in  2012  to  €11.74 
million  in  2019.  The  following  table  indicates  the  number  of  staff  (at  the  end  of  year)  and 
spending of the Office’s Observatory department: 

Table 4 

Observatory staff and spending 

(source: EUIPO) 

2012 

2013 

2014 

2015 

2016 

2017 

2018 

2019 

34 

47 

29 

31 

37 

42 

52 

55 

2.44 

6.08 

7.09 

11.54 

9.35 

12.2 

13.3 

11,74 

Number 
staff 

of 

Spending 

(million €)17 

The number of representatives to the Observatory has also increased. Between 19 April 2012, the 
date  of  the  adoption  of  the  Regulation,  and  31  December  2019,  the  Observatory  network 
increased from 67 to 128 representatives. 

The  public  sector  representatives  are  designated  by  the  EU  Member  States,  whereas 
representatives from the private sector are invited by the Office. The Observatory’s private sector 
stakeholders are organisations that are involved or experienced in the fight against infringements 
of  IPR18.  In  addition,  the  Office  invites,  to  the  meetings  of  the  Observatory,  members  or  other 
representatives  of  the  European  Parliament  and  representatives  from  the  various  relevant 
departments of the Commission19, as well as other EU bodies and international organisations. The 
list of Observatory members and of organisations invited as observers is available online20. 

Representatives to the Observatory contribute to the Office’s work by integrating working groups 
that follow-up on different clusters of projects. In 2012-2018, the Office structured the work of 
the Observatory around the following groups: (1) IP in the digital world; (2) Public awareness; 
(3)  Legal  &  international;  (4)  Enforcement,  and  (5)  Economics  and  statistics.  The  working 
groups  meet  twice  a  year.  In  these  meetings,  the  Office  reports  on  the  different  projects  and 
invites stakeholders to present their views on the progress made and on the next steps.  

However, it should be noted that all activities under consideration in the evaluation are activities of the 
EUIPO. The Observatory, that is, the network of stakeholders, does not have a legal personality and 
does  not  carry  out  any  activities  on  its  own,  but  rather  participates  at,  and  provides  input  to,  the 
activities of the Office. 

15  Initially  the  Observatory  integrated  the  Office’s  Academy,  a  unit  that  was  detached  from  it  in  2014, 

leading to a drop in staff of the Observatory department from 47 (in 2013) to 29 (2014).  

16 The EUIPO has 1031 statutory staff (officials, temporary agents, contract agents and special advisors) – 

source: 2019 Annual Report EUIPO. 

17 Including salaries of statutory staff and other staff related expenditure. 
18 The selection criteria is available online: - EUIPO-Observatory´s webpage 
19 The  invitation of  members or representatives of the  European Parliament and of representatives of the 

Commissions s expressly foreseen in Article 4(6) of the Regulation, 
20 https://euipo.europa.eu/ohimportal/en/web/observatory/observatory-network 

10 

 
 
 
                                                                                                                                                              
In 2019, the Office discontinued the Legal and international work group and created six expert 
groups: (1) Observatory outreach; (2) Impact of technology; (3) Cooperation with intermediaries 
and  (4)  SMEs,  (5)  Legal,  and  (6)  International.  While  members  of  working  groups  represent 
organisations that are members of the Observatory (example, an association of owners of trade 
marks), expert groups are composed of experts selected in their individual professional capacity. 
Expert  groups  help  the  EUIPO  in  making  concrete  steps  in  specific  projects  and  they  meet  as 
often as necessary. Working groups meet twice a year, and are used by the EUIPO as a means for 
to consult a broad range of representatives to the Observatory 

In  addition,  the  Office  organises  ‘statutory  annual  meetings’:  one  public  sector  stakeholders’ 
meeting, one private sector stakeholder’s meeting and one plenary meeting. The plenary meeting 
assembles  the  whole  Observatory  network.  In  addition,  the  Observatory  team  conducts 
videoconferences with the Observatory’s civil society stakeholders two to three times a year. 

Studies, surveys and reports 

Between  5  June  2012,  the  date  of  the  entering  into  force  of  the  Regulation,  and  31  December 
2019, the Office has published 84 studies related to its tasks under the Regulation21. 

IP contribution studies 

This first group concerns studies on the economic relevance of IP both for the EU economy and 
for the individual performance of businesses. So far, the Office has published eight studies in this 
area.  Some  of  these  studies  are  repeated  in  time  to  identify  trends.  In  2013,  for  example,  the 
Office  published  the  report  Intellectual  property  rights  intensive  industries:  contribution  to 
economic performance and employment in the European Union. The report was updated in 2016, 
and again in 2019. According to the 2019 edition, IPR-intensive industries account for 45% of 
EU  GDP  and  almost  one  third  of  all  jobs  (29.2%)  in  the  EU22.  The  Office  also  analysed  the 
relevance of IP for business: Intellectual property rights and firm performance in Europe (2015). 
This  study  has  shown  that,  on  average,  companies  that  own  IPR  generate  29  per  cent  higher 
revenue per employee, and they pay 20 per cent higher wages, than companies that do not use 
IPR. In 2019 the Office published the study High-growth firms and intellectual property rights. 
IPR  profile  of  high-potential  SMEs  in  Europe,  revealing  that  companies  that  have  IPR  activity 
have a much more likely to achieve subsequent growth than other companies. 

IP infringement studies 

The Office has published 28 studies on the volume and impact of infringements of IPR and other 
related matters such as the operational aspects of infringement activities. Looking at the scale of 
IP  infringement  on  a  global level, the  Office, in joint  cooperation  with  the  OECD,  published a 
report  Trade  in  Counterfeit  and  Pirated  Goods:  Mapping  the  Economic  Impact  (2016). 
According to its findings, in 2013 trade in counterfeit and pirated goods accounted for up to 2.5% 
of  global  trade  (and  5%  of  the  imports  into  the  EU).  The  Office  and  the  OECD  repeated  the 
exercise  in  2019.  The  results  revealed  a  rise  of  the  volume  of  global  trade  in  counterfeit  and 
pirated  products  (up  to  3.3  %  of  global  trade  and  6.8%  of  EU  imports).  The  Office  has  also 
conducted research on the economic impact of IP infringements, in terms of loss of sales, loss of 
government revenue and loss of jobs. The Office has done so using a sector by sector approach 
and it has covered 12 sectors so far, from cosmetics to tyres and batteries to recorded music. The 
Office  also  looked  to  other  impacts  such  as  in  the  Qualitative  Study  on  Risks  Posed  by 
Counterfeits to Consumers (2019). 

21 The studies, surveys and reports carried out by the EUIPO the under the Regulation are available online 

at https://euipo.europa.eu/ohimportal/en/web/observatory/observatory-publications. 

22 In its 2013 edition, IPR-intensive industries accounted for 38.1% of EU GDP and 27.8% of all jobs. 

11 

 
                                                      
Looking at the operational aspect of IP infringement, the OECD and Office complemented these 
reports  with  a  number  of  related  studies,  such  as  Mapping  the  Real  Routes  of  Trade  in  Fake 
Goods (OECD/EUIPO 2017) where China is identified the top producer of counterfeit goods in 9 
out  of  10  categories  of  goods  that  were  researched.  Other  studies  include:  Why  do  Countries 
Export  Fakes  (OECD/EUIPO  2018),  Misuse  of  Small  Parcels  for  Trade  in  Counterfeit  Goods 
(OECD/  EUIPO,  2018)  and  Trends  in  Trade  in  Counterfeit  and  Pirated  Goods  (OECD/EUIPO 
2019)  Online  Business  Models  Infringing  Intellectual  Property  Rights  -  Phase  1  (2016)  and 
Online Business Models Infringing Intellectual Property Rights - Phase 2 (2017). 

The Office has also joined forces with Europol. The two organisations carried out a study, which 
benefited from contributions by national enforcement authorities and the private sector, leading 
to the publication of the  2015  Situation  Report  on  Counterfeiting  in  the  European  Union. This 
study  identifies  the  main  traits  of  the  phenomenon  and  provides  illustrative  case  studies.  An 
updated version of the study was published in 2017 assessing the evolution and providing new 
insights  into  emerging  trends.  The  two  organisations  published  a  third  edition  in  2019,  titled 
Intellectual Property Crime Threat Assessment (2019). 

Enforcement studies  

The  Office  has  published  over  30  studies  on  the  legal  and  practical  aspects  of  enforcing  IPR, 
including among others the following: Study on voluntary collaboration practices in addressing 
online infringements of trade mark rights, design rights, copyright and rights related to copyright 
(2016),  Legislative  measures  related  to  online  IP  infringements  (2018);  Deposit  systems  for 
audio visual works (2017, with the European Audiovisual Observatory), Protection and Control 
of  Geographical  Indications  for  Agricultural  Products  in  the  EU  Member  States  (2017), 
Voluntary  Registration  and  Deposit  Systems:  United  Stated  and  China  (2018)  IP  Litigation 
Insurance Landscape (2018). 

To  help  European  businesses  in their exports or  overseas investment  operations,  between  2014 
and 2015, the Office published five guides to IP protection in non-EU countries (Turkey, Russia, 
India, China, Brazil and Ukraine). 

Furthermore,  the  Office  prepared  case-law  collections,  namely  Recent  European  Case-Law  on 
the infringement  and  enforcement  of  Intellectual  Property  Rights  (2019),  and  IPR  Enforcement 
Case-Law  Collection  -  The  liability  and  obligations  of  intermediary  service  providers  in  the 
European Union (2019). 

Raising awareness studies 

To support work in raising awareness, the Office has conducted research on Europeans including 
young people’s perception of IP and their behaviour towards counterfeits and piracy, as well as 
on best practice in IP and education. These studies include:  European Citizens and Intellectual 
Property:  Perception,  Awareness  and  Behaviour,  EUIPO  (2013),  Intellectual  Property  and 
Youth,  EUIPO  (2016),  Intellectual  Property  and  Youth,  EUIPO  (2019),  IP  and  Education  in 
Europe  (2015),  European  Citizens  and  Intellectual  Property:  Perception,  Awareness  and 
Behaviour (2017), and IP in Education Best Practice Report, EUIPO (2019). 

In Intellectual Property (IP) SME Scoreboard  (first published in 2016 and then updated 2019), 
the Office has also reported on the extent to which SMEs use the IP system and why. 

In  its  studies  Intellectual  Property  (IP)  SME  Scoreboard  of  2016  and  2019,  EUIPO  has 
furthermore reported on the extent to which SMEs use, or not, the IP system, and why. 

Other studies  

The Office has also published studies such as  Derivative Use of Public Domain Content - Film 
Industry Focus (2017), The Baseline of Trade Secrets Litigation in the EU Member States (2018), 
and A Satellite Account for the European Union Creative Industries (2019). 

12 

 
Training, workshops and seminars 

Every  year  the  Office  organises  more  than  three  seminars  with  its  network  of  judges.  This 
network is composed of judges dealing with IP infringements. Additionally, every two years the 
Office  organises  a  Judges  Symposium,  which  includes  members  of  the  Court  of  Justice  of  the 
EU, the General Court and of the Office’s Boards of Appeal. In cooperation with Eurojust, the 
Office  has  set  up  the  European  Intellectual  Property  Prosecutors  Network  that  brings  together 
prosecutors from the EU and neighbouring countries working with IP crime cases. The network 
shares best practices and has discussed a number of case studies involving successful criminal IP 
prosecutions. The European Intellectual Property Prosecutors Network meets once a year and that 
meeting  is  usually  followed  by  a  smaller  one-day  exchange  of  best  practice  with  a  number  of 
Chinese prosecutors. 

Furthermore, the Office provides training to law enforcement officers from national bodies such 
as  customs  or  police.  In  total,  the  Office  provided  88  training  events  and  knowledge-building 
seminars  between  2012  and  2019,  gathering  more  than  4,100  participants.  These  events  were 
often  organised  in  collaboration  with  the  departments  of  the  Commission  (DG  TAXUD  and 
OLAF)  and  EU  agencies,  such  as  the  European  Union  Agency  for  Law  Enforcement  Training 
(CEPOL),  the  European  Union  Agency  for  Law  Enforcement  Cooperation  (Europol)  and  the 
European Union Agency for Criminal Justice Cooperation (Eurojust). 

In  addition,  the  Office  created,  together  with  CEPOL,  a  virtual  training  centre  offering 
enforcement  officers  more  than  60  courses,  e-learning  modules,  webinars  and  other  useful 
training materials. 

The Office has also collaborated with the departments of the Commission to organise high level 
international  events  on  IP  enforcement.  These  included  the  2014  IP  Enforcement  Summit 
(London),  the  2017  IP  Enforcement  Summit  (Berlin)  and  the  2019  International  Forum  on  IP 
Enforcement  (Paris).  The  first  two  summits  were  co-organised  with  the  UK  and  German 
authorities. The 2019 International Forum on IP Enforcement was co-organised with the OECD 
which assembled more than 60 speakers and panellists, in addition to more than 280 participants. 

Raising awareness 

As an integral part of its research, or building up on its results, the Office has, in cooperation with 
the  relevant  national  authorities  and  private  sector  stakeholders,  carried  out  a  number  of 
awareness-raising  initiatives.  These  include  Ideas  powered,  by  which  the  Office  interacts  with 
young people using social media alongside with events titled IP Youth workshops23. The Office 
also  funded  30  awareness-raising  campaigns.  These  campaigns  were  organised  by  private  or 
public stakeholders under a grant scheme set up by the Office with a total budget of €1.5 million. 
These  initiatives  have  enabled  the  Office  to  create  a  repository  of  awareness  raising  material, 
which is freely available for bodies active in this field24. In addition, when the Office launches a 
major publication it carries out a media campaign to raise awareness. 

The  Office  has  also  made  available  online  guidance  on  copyright  (FAQs  on  copyright)  aimed 
primarily at consumers, but also useful for creators and users of copyright protected content. The 
Office’s FAQs on copyright aims at making information on copyright easily accessible and easily 
understandable,  therefore  helping  people,  entrepreneurs  and  businesses  to  avoid  involuntarily 
infringing IP rules. This information is country specific and therefore there is a set of FAQs for 
each Member State available online in at least two language versions: the official language of the 

23 In 2019, the fourth edition of the Ideas Powered Youth Workshop brought together 50 young influencers 

from the EU-28. For more information see the dedicated webpage 

24  The  repository  of  public  awareness  campaigns  and  respective  materials  are  available  online  at 

https://euipo.europa.eu/ohimportal/en/web/observatory/public-awareness-campaigns. 

13 

 
                                                      
Member State in question (or at least one of the official languages in case there are more than 
one) and English25.  

Tools and databases 

The  Office  developed  tools  and  databases  that  facilitate the  work  of,  and  cooperation  between, 
different  law  enforcement  authorities,  namely  the  Enforcement  Data  Base  (EDB),  the  Anti-
Counterfeiting  Rapid  Intelligence  System  (ACRIS)  and  the  Anti-Counterfeiting  Intelligence 
Support Tool (ACIST):  

- EDB helps right holders to protect authentic products against counterfeiting by making 
information  on  products,  registered  IPR  and  contacts  available  to  enforcement 
authorities. Police and customs officials from all the Member States, as well as staff from 
Europol  and  OLAF  can  access  this  tool  to  view  information  and  product  details, 
facilitating  the  identification  of  counterfeits26.  EDB  also  allows  companies  to  submit 
applications for action (AFAs27) to custom authorities.  

- ACRIS is a web-based tool developed at the request of the Commission’s department 
for  Trade.  It  allows  users  to  report,  in  a  structured  format,  all  data  relating  to  cases  of 
infringements of IPR affecting EU companies in countries outside the EU. Users report 
on their cases and corresponding enforcement actions with local authorities28.  

- ACIST includes statistics on detentions within the EU. Information is collected from the 
border and within the single market. It is harmonised between countries and authorities. 
Data  from  the  borders  of  the  EU-28  have  been  included  since  2012  as  well  as  data  on 
single market detentions from authorities in 25 Member States29. 

In June 2019, the Office launched the IP Enforcement Portal (IPEP)30 integrating EDB, ACIST 
and  ACRIS  into  a  single,  secured  EU  platform  that  allows  for  the  multilingual  exchange  of 
information  between  law  enforcement  authorities  and  right  holders,  which  is  available  free  of 
charge. The IPEP is accessible to 63 law enforcement authorities and over 800 IP right holders 
have registered to the IPEP. 

The  Office  has  also  developed  tools  to  benefit  Europeans.  For  example,  the  AGORATEKA 
portal helps consumers to identify legal content online (films, TV shows, music, e-books, games 
and sports events) in participating Member States31.  

International cooperation 

The Office acts as an agency implementing EU funded programmes, such IP Key China, IP Key 
south-east Asia, IP Key Latin America, and ARISE+ IPR (covering the ASEAN region), which 
aim at strengthening IP protection in these countries and regions. Moreover, the Office provides 
support  to  the  Commission’s  department  for  Trade  in  running  an  IP  focused  network  for  EU 
officials in EU delegations around the world. The Office has also carried out surveys intended to 
gather feedback from EU stakeholders on the level of IPR protection outside the EU and it has 
published guides on IP protection in non-EU countries (Turkey, Russia, India, China, Brazil and 

25 https://euipo.europa.eu/ohimportal/en/web/observatory/faqs-on-copyright 
26 Technopolis, Evaluation of the application of Regulation 386/2012, 2017, p.28-29. 
27  An  application  for  action  is  a  request  from  a  holder  of  IPR  to  customs  authorities  to  detain  goods 

suspected of infringing IPR of the applicant. 

28 Technopolis, Evaluation of the application of Regulation 386/2012, 2017, p.30 
29 Technopolis, Evaluation of the application of Regulation 386/2012, 2017, p.31 
30 For more information see the IPEP dedicated webpage.  
31 https://agorateka.eu/ea/ 

14 

 
                                                      
Ukraine). In addition, it has developed an extensive programme of bilateral cooperation involving 
the  signature  of  around  50  cooperation  agreements  with  IP  offices  in  non-EU  countries  and 
regional organisations around the world, also covering matters related to the enforcement of IPR, 
sharing information and IP economic-related studies. 

4.  EVALUATION METHODOLOGY 

The evaluation roadmap was published in September 2016. The roadmap sets out the purpose and 
scope  of  the  evaluation.  According  to  the  roadmap,  the  evaluation  would  use  the  following 
sources  of  information:  relevant  documents  (the  impact  assessment  accompanying  the 
Commission’s  proposal  leading  to  the  adoption  of  the  Regulation,  the  Office’s  annual 
programmes and annual reports, public statements from stakeholders), a study from an external 
contractor and a public consultation. 

The  study  was  commissioned  in  November  2016  to  Technopolis  (‘the  contractor’).  The 
methodology  used  in  its  preparation  included  desk  research  and  interviews.  A  total  of  113 
interviews  were  carried  out  mainly  with  stakeholders  participating  in  the  work  of  the 
Observatory,  but  also  with  members  of  the  Office’s  Observatory  team.  The  contractor  also 
contacted officials from national customs authorities that are not involved in the Observatory’s 
work, but who are in charge on a daily basis of IPR enforcement at the EU border. The contractor 
also  carried  out  an  online  survey,  sent  through  the  Members  of  the  Observatory,  and  their 
constituencies32. The study was concluded in August 2017 and it is available online33. 

Another  important  means  of  data  collection  was  the  public  consultation  which  ran  between 
3 July 2018  and  5 October 2018.  The  public  consultation  was  announced  on  Your  Voice  in 
Europe,  and  it  was  carried  out  through  an  online  questionnaire  made  available  in  the  24  EU 
official languages, using the EU’s EUSurvey consultation tool34. The public consultation received 
98  contributions.  The  synopsis  report  of  the  public  consultation  provides  information  on  who 
participated in the consultation and summarises the main results (see Annex 2). The results of the 
consultation are assessed in Annex 2 with reference to the various categories of respondents, such 
as individuals, professionals and organisations (that is, legal persons or entities), Members of the 
Observatory (a sub-category of the latter)35 

Limitations and robustness of findings 

The documents mentioned above provide a solid factual basis to assess of the Office’s activities 
under  the  Regulation,  the  resources  employed,  the  extent  to  which  the  cooperation  between 
stakeholders  became  a  reality  and  the  results  obtained  (the  development  of  new  research 
methodologies,  development  of  tools  and  their  use,  how  many  people  received  training,  how 
many studies were published, how many times they have been quoted in policy documents, how 
much  attention  did  the  Office’s  publications  received  from  the  media  etc.).  The  evidence  is  in 
general robust and publicly available. The body of evidence was independently examined by the 
contractor  who  complemented  the  analysis  with  the  feedback  provided  by  stakeholders,  both 
members and non-Members of the Observatory, through interviews and a survey. 

The  contractor  faced  some  difficulties  in  reaching  out  to  stakeholders  not  participating  in  the 
work  of  the  Observatory,  but  it  still  succeeded  in  receiving  input  from  a  number  of  customs 
officials outside the network who enforce IPR rights. 

32  For  further  details  on  the  contractors’  methodology  see  Technopolis,  Evaluation  of  the  application  of 

Regulation 386/2012, 2017, p.20. 

33 https://ec.europa.eu/growth/industry/intellectual-property/enforcement/infringements-observatory_en. 
34  For  further  information  on  the  procedural  aspects  of  the  public  consultation,  see  Annexes  1  and  2 

(questionnaire).  

35 For an explanation of these categories, please see the introduction section of Annex 2. 

15 

 
                                                      
This limitation was largely compensated by the public consultation which received contributions 
from  98  respondents  (of  which  only  18  are  Members  of  the  Observatory)  including  52 
individuals. 

Another limitation that the contractor referred to is the relative infancy of their evaluation work, 
given  that  during  the  first  two  years  2012-2014,  the  Observatory  was  in  an  inception  phase. 
Therefore,  the  contractor’s  quantitative  basis  for  the  evaluation  mainly  refers  to  data  between 
2015 and 2017. In order to render the evaluation more meaningful the period to be covered by the 
evaluation was extended until 31 December 2019. 

Finally, while the work done by the Office is well documented36, the real impact of its activities is 
less so. The Office monitors the impact of some of its activities, such as measuring the outreach 
of publications through press clippings, monitoring downloads and quotations of its studies and 
carrying satisfaction surveys on meetings and training sessions, etc.). However, in the first years 
after the adoption of the Regulation, the Office focused on putting projects in action to fulfil its 
new tasks and did not have a comprehensive scheme for evaluating and measuring the impact of 
its activities. Naturally, the Office cannot be expected to be able to measure the extent to which it 
contributes to the ultimate policy objective of lowering levels of IP infringement, Still, it could 
offer  better  information  on  the  possible  impact  of  some  its  activities,  such  as  its  awareness-
raising actions and campaigns.. By the end of 2018, the Office announced that it would be setting 
up a tool for internal use which helps monitoring at least some of its activities, for example its 
awareness actions and campaigns.  

5.  ANSWERS TO THE EVALUATION QUESTIONS 

This section assesses the relevancy, effectiveness, efficiency, coherency and added value of the 
EU’s intervention37, taking in consideration the activity carried, and the main results achieved, by 
the Office in implementing the tasks assigned to it by the Regulation.  

How relevant is the EU intervention in IP enforcement 

The key question under the relevance criteria is whether the objectives of the Regulation are still 
valid and match the current needs and problems. 

There is no doubt that IP infringement continues to be a real problem having a major impact on 
the EU’s welfare: 

 

 

In 2017, customs authorities in the EU registered almost 60 000 detention cases (with 31 
million  articles  suspected  of  violating  IPR)38.  The  retail  value  of  the  articles  seized 
exceeded EUR 580 million. 

In  2013,  2.5%  of  value  of  the  world  trade  (USD  461  billion)  concerned  IP  infringing 
goods39.  In 2016, this value increased to USD 509 billion, equivalent to 3.3% of world 
trade. 

36 The Office used to include in its annual reports a section specifically dedicated to the Observatory and 
the activities of the Office under the Regulation. That was not the case of the 2018 and 2019 annual 
reports. Instead, the Office published a stand-alone annual activity report on the activities carried out 
under the Regulation. 

37  Relevancy,  effectiveness,  efficiency,  coherency  and  added  value  are  the  standard  criteria  that  the 
Commission  uses  when  evaluating  its  initiatives  in  accordance  with  its  better  regulation  guidelines 
(https://myintracomm.ec.europa.eu/sg/better_regulation/Pages/evaluation.aspx) 

38 Report on the EU customs enforcement of intellectual property rights: Results at the EU border, 2017, 

European Union, 2018. 

39  OECD/EUIPO,  Trade  in  Counterfeit  and  Pirated  Goods:  Mapping  the  Economic  Impact,  2016.  The 
report  assesses  data  on  seizures  collected  from  the  World  Customs  Organisation,  the  European 

16 

 
                                                      
  The EU is particularly hit: imports of counterfeit and pirated products into the EU rose 
from EUR 85 billion in 2013 (equivalent to 5% of total EU imports) to EUR 121 billion 
in 2016 (equivalent to 6.8% of total EU imports)40. 

  The figures above concern physical products only. Online illegal offer, and consumption, 
of  copyright  content  such  as  movies,  music  and  live  sport  events,  is  also  widespread. 
Between  2012  and  2016  piracy  in  the  EU  caused  the  recorded  music  industry  annual 
average losses of EUR 200 million and 1300 jobs41. 

IPR infringement, such as counterfeiting and piracy, hurt businesses and the economy but they 
also feed organised crime. In addition counterfeiters use manufacturing sites, processes, materials 
and  ingredients  that  often  do  not  comply  with  health,  safety  or  environmental  regulations. 
Therefore, consumption and use of counterfeited goods can have a serious impact on the health 
and  safety  of  consumers,  as  well  as  negative  environmental  consequences.  Counterfeiting  and 
piracy  can  only  be  tackled  through  the  cooperation  of  all  those  affected.  In  addition, 
counterfeiting is to a large extent carried out by criminal organisations operating globally42, and 
cannot be tackled without cooperation with third countries.  

The establishment of the Observatory and its entrustment to the Office in 2012 was a key element 
of the EU’s response to counterfeiting and piracy, alongside with the EU secondary legislation on 
IP and other initiatives (such as in the area of customs, international trade, etc.). 

The  contractors  concluded  that  the  most  valued  objective  of  the  Regulation  is  to  improve  the 
knowledge  of  public  authorities  and  private  sector  stakeholders.  Most  stakeholders  also 
supported  the  objectives  of  improving  day-to-day  cooperation,  and  raising  individuals’ 
awareness. A less consensual view seems to have emerged from the contractor’s interviews with 
stakeholders on the specific objective on cooperation with non-EU countries. However, these 
hesitations relate to the manner in which the Office has implemented the Regulation and not to 
the relevance of the objective itself43. Stakeholders interviewed by the contractors agreed in that 
“(…)  many  counterfeited  goods  come  from  third  countries.  Much  could  be  done  to  better 
understand  and  thus  address  counterfeiting  in  third  countries,  especially  in  China,  South  East 
Asia or South America.” This is in line with the views expressed by 59% of the respondents to 
the  public  consultation.  In  particular,  86%  of  the  participating  companies,  organisations  and 
professionals find it important that the Office helps authorities from non-EU countries to develop 
techniques, skills and tools for enforcing  IPRs44. Therefore, the tasks entrusted to the Office in 
relation with non-EU countries are relevant and should be maintained. 

Another  area  worth  mentioning  is  the  promotion  of  technical  tools  for  professionals  and 
benchmark techniques, including tracking and tracing systems which help to distinguish genuine 

Commission’s Directorate-General for Taxation and Customs Union and the US Customs and Border 
Patrol. 

40 OECD-EUIPO, 2019,  Trends in Trade in Counterfeit and Pirated Goods, Illicit Trade. These amounts 
do  not  include  domestically  produced  and  consumed  counterfeit  and  pirated  products,  and  pirated 
digital products distributed online. 

41 EUIPO, 2019 Status Report on IPR Infringement, 2019. 
42  IPR  infringing  items  detained  at  EU  borders,  such  as  counterfeited  goods,  originate  mainly  from 
mainland China, Hong Kong, Turkey and Vietnam. For an overview of the routes, key locations and 
transportation  methods,  see  EUIPO-  Europol  report,  Intellectual  Property  Crime  Threat  Assessment, 
2019. 

43 “Several stakeholders felt there is room for improvement in the implementation of this important specific 
objective  of  the  Observatory”,  Technopolis,  Evaluation  of  the  application  of  Regulation  386/2012, 
2017, p.45. 

44 See Annex 2, Public Consultation Synopsis Report. 

17 

 
                                                                                                                                                              
products from  counterfeit ones45.  Of  all  activities  assigned  to  the  Office by  the Regulation,  the 
promotion of the above mentioned technical tools was the one that received less positive replies 
as to its relevance46. There seems to be two reasons for this result: 

  Some individuals are concerned that such tools may invade their privacy47.  

  Right  holders  see  track  and  trace  systems  as  a  sensitive  issue,  involving  confidential 
commercial information. They also argue that such systems should not be standardised as 
there is no one size fits all solution, and some fear that the Office may end up promoting 
one specific solution to the detriment of other solutions. 

That  said,  most respondents  to the  public  consultation  (54%)  consider this  activity  to  be  either 
important (31%) or very important (27%).  

The departments of the Commission consider that it is still useful for the businesses, in particular, 
SMEs to be made aware of the different technical solutions available, and the Office can share 
relevant  information  in  that  respect  without  favouring  a  particular  track  and  trace  solution. 
Indeed,  track  and  trace  solutions  are  business-to-business  products  that  should  be  left  free  to 
compete in an open market without interference of public bodies. 

According to the feedback collected by the contractor, most stakeholders indicated that the scope 
of the Regulation is still appropriate and relevant and that there is no need to extend the scope of 
the  Office’s  tasks48.  That  was  also  the  dominant  view  expressed  by  respondents  to  the  public 
consultation  (39%  of  all  respondents).  Still,  according  to  the  contractor,  some  stakeholders 
indicated that the Office should have more powers, particularly in enforcement and sanctions49. 
Likewise,  some  respondents  suggested  that  the  Office  should  facilitate  the  exchange  of  data 
between law enforcement authorities across the EU, at EU level and to certain non-EU countries. 
However, this is an area where the Office is already active, since one of the tasks of the Office 
under  Article  2(1)(g)  of  the  Regulation  is  to  provide  “mechanisms  which  help  to  improve  the 
online exchange, between Member States’ authorities working in the field of intellectual property 
rights, of information relating to the enforcement of such rights, and fostering cooperation with 
and  between  those  authorities.”  While  some  of  the  replies  received  indicate  a  certain  lack  of 
awareness on the Office’s mandate, some others, provided by knowledgeable stakeholders, could 
indicate a wish for the Office to do more in certain areas covered by the Regulation. The same is 
true with most of other suggestions received through the public consultation (see Annex 2). 

In conclusion, the tasks and activities carried out by the Office under the Regulation are still valid 
and relevant. Both the contractor and the public consultation revealed a broad consensus on the 
tasks assigned to the Office under the Regulation. According to the contractor “the Observatory’s 
general and specific objectives are still considered to be relevant by the majority of stakeholders 
consulted”50.  The  contractor  found  “barely  any  differences  in  the  views  of  Observatory  staff, 
observers, EC representatives and MEPs, national authorities and civil society organisations  – 

45  Track  ad  trace  systems  are  used  in  logistics  to  determine  the  current  and  past  locations  (and  other 
information)  of  a  unique  item,  and  therefore  may  help  identifying  a  given  product  as  being  genuine 
and not a counterfeit. 

46  While  more  than  half  (54%)  of  the  respondents  consider  this  activity  to  be  important  (31%)  or  very 
important  (27%),  the  other  tasks  entrusted  to  the  EUIPO  received  between  62%  and  77%  positive 
replies. 

47 The fear presumably being that if a specific item can be located at any given point in time, the location of 

its proprietor and what use is made of the item in question can also be traced.  

48 Technopolis, Evaluation of the application of Regulation 386/2012, 2017, p.47. 
49 Technopolis, Evaluation of the application of Regulation 386/2012, 2017, p.47. 
50 Technopolis, Evaluation of the application of Regulation 386/2012, 2017, p.43. 

18 

 
                                                      
i.e. all agreed on the relevance of the objectives”51. The findings of the public consultation has 
also shown broad support for the tasks assigned to the Office. The respondents considered that all 
the  tasks  assigned  to  the  Office  were  important  with  approval  rates  between  54%  (research  on 
technical tools to prevent and tackle infringements of IPR, including tracking and tracing systems 
which  help  to  distinguish  genuine  products  from  counterfeit  ones)  and  77%  (research  on  the 
economic  and  cultural  value  of  IP  for  individuals,  businesses  and  society).  The  approval  rates 
were  higher  among  professionals  and  organisations,  from  73%  (technical  tools  to  prevent 
infringements  of  IPR)  to  95%  (training  on  IP  enforcement  and  tools  for  cooperation  between 
authorities).  

Effectiveness of the Regulation and its implementation 

In this section the evaluation assesses the progress made in achieving the objectives set out by the 
Regulation. 

Operational objective: sustainable infrastructure for the network 

The Office’s Observatory department 

The immediate operational objective of the EU legislator was ensuring “that the Observatory had 
the  necessary  infrastructure  to  deliver  its  activities  effectively,  as  quickly  as  possible  and  with 
minimum costs for the EU budget”52.  

The Office has met this objective. The Observatory team has now 18 times more staff than it had 
before the adoption of the Regulation and the Office has allocated on average an annual budget of 
€11 million  to  the  activities  linked  to  the  Observatory.  According  to  the  contractor,  the  Office 
“seems  to  be  well  equipped  in  terms  of  expertise  to  perform  the  tasks  attributed  to  it  by  the 
Regulation  under  evaluation”  and  the  evidence  collected  “does  not  suggest  that  there  are  any 
shortcomings  of  expertise”53.  Most  Observatory  members  (77%)  that  participated  in  the  public 
consultation considered that “the EUIPO is well equipped to carry out its tasks and activities, in 
terms of independency, funding, staff, expertise, IT and meeting capacities”54.  

Composition of the Observatory network 

The well-functioning of the Regulation requires more than adequate budget and staffing. Central 
to the Office’s missions is to ensure that its activities under the Regulation can benefit from the 
stakeholder’s expertise gathered by the Observatory. 

The Office has also met this objective. It has broadened the Observatory network by filling gaps 
in  its  earlier  composition.  The  number  of  representatives  more  than  doubled  and  it  is  now 
composed  of  123  representatives.  This  expansion  has  enabled  the  Office  to  benefit  from  a 
broader range of expertise, while ensuring that meetings remain manageable and workable. 

Table 5 

Staff and representatives 

Source: Commission and EUIPO 

Before 
transfer to 
the EUIPO 

31/12/2019 

51 Technopolis, Evaluation of the application of Regulation 386/2012, 2017, p.43. 
52 According to recital 13 of the Regulation: “in view of the range of tasks assigned to the Observatory, a 
solution is needed to ensure an adequate and sustainable infrastructure for the fulfilment of its tasks”. 

53 Technopolis, Evaluation of the application of Regulation 386/2012, 2017, p. 50. 
54 See Annex 2, Public Consultation Synopsis Report. 

19 

 
 
                                                      
Staff assigned to the Observatory 

Observatory representatives (total) 

Representatives from the public sector 

Representatives from the private sector 

Representatives from consumer organisations and civil 
society 

Observers 

Members or other representatives of the European 
Parliament 

3 

66 

27 

38 

1 

--- 

--- 

55 

123 

28 

68 

8 

14 

5 

Private  sector  stakeholders  include  organisations  representing  the  interests  of  IPR  owners  and 
industry sectors that rely heavily on IP (footwear, electric components manufacturers, composers 
and songwriters, journalists, publishers, movies and audiovisual software, toys, etc.). SMEs are 
represented  through  organisations  such  as  SMEunited,  Business  Europe  and  Eurochambres. 
Despite  the  significant  growth  in  participants,  one  third  of  the  respondents  to  the  public 
consultation considered that the Observatory network should include more stakeholders from the 
private sector, such as freelancer artists and legal practitioners, particularly litigators. 

The Observatory network also includes various international organisations and other institutional 
bodies,  such  as  the  World  Customs  Organisations,  Europol,  the  OECD,  OLAF,  the  European 
Patent Office, etc. 

The  participation  of  civil  society  organisations  has  also  increased  since  the  adoption  of  the 
Regulation  (from  one  to  eight  members),  including  organisations  representing  consumers’ 
interests,  civil  and  human  rights  associations.  However,  examples  of  missing  interest  groups 
mentioned  by  respondents  include  (i)  organisations  and  observers  of  human  rights  and  net 
neutrality  defenders,  (ii)  citizens  in  general,  (iii)  Pirate  Parties  International,  (iv)  Open 
Knowledge International, and (v) representatives of universities and research centres.  

It  should  be  recalled  that  the  main  purpose  of  the  Observatory  network  is  not  to  promote 
discussions on the added value of the IP system as such, but rather to help the Office in carrying 
out  its  tasks  of  supporting  the  enforcement  of  IPR.  While  the  composition  of  the  Observatory 
should be diversified and open to change, its core must be formed by stakeholders concerned by 
or most experienced in the fight against infringements of IPR – as provided for by Article 4(2) of 
the Regulation. In addition, there is a need to keep the number of participants to a workable level.  

Overall, most respondents (58%) – and 67% of professionals and organisations - considered that 
no interest groups were underrepresented in the Observatory. The study did not find any flaws in 
the composition of the Observatory network. 

Working with stakeholders 

The  good  functioning  of  the  Regulation  requires  the  Office  to  ensure  stakeholder  engagement. 
Having a broad, representative and balanced network of stakeholders from the public and private 
sectors  and  civil  society  is  not  enough.  It  must  result  in  a  meaningful  partnership  between  the 
Office and the network of stakeholders gathered under the Observatory. 

While it is for the Office’s governing bodies to ultimately decide what specific projects are to be 
carried  out,  the  annual  programmes  of  activities  to  be  carried  out  under  the  Regulation  (work 
programmes)  are  prepared  in  consultation  with  the  departments  of  the  Commission  and  all  the 
stakeholders gathered by the Observatory. It is also the Office who decides how much resources 

20 

 
 
it allocates to a specific study, campaign, tool or event, without consultation of the Observatory 
network.  The  funding  of  the  different  areas  of  activity  and  projects  is  a  matter  dealt  by  the 
EUIPO internally. 

Stakeholders  have  different  concerns  and  views  over  priorities  and  specific  actions.  These 
differences  are  visible  in  their  different  contributions  to  the  EUIPO’s  work  programmes.  Still, 
there is broad consensus over most of the activities that the Office has been developing under the 
Regulation  and  there  has  been  no  major  disagreements  on  the  content  of  the  different  work 
programmes and strategic plans. Consistency with the EU’s priorities has also been ensured. The 
public consultation has shown that the Observatory members are virtually unanimous in finding 
that the process leading to adoption of the Observatory’s work programme is transparent. 

The Office also implements its work programmes in regular consultation with the Observatory’s 
representatives, mainly through the working groups meetings that take place twice a year. More 
recently,  the  Office  has  also  created  expert  groups  (see  Section  on  current  situation).  It  is  too 
early to assess the effectiveness of these new work arrangements.  

While the creation of smaller and more targeted groups has clear advantages, the Office should 
maintain a strong level of engagement with all its representatives. Stakeholders should be given 
ample opportunities to participate actively in the Office’s work under the Regulation. Therefore, 
there  must  be  sufficient  exchanges  of  information  between  the  expert  groups  and  the  working 
groups or the stakeholders as a whole. The departments of the Commission should also continue 
to be invited to the meetings of both the working groups and the expert groups to ensure that the 
Office’s activities are consistent with Commission priorities.  

Some  stakeholders  have  indicated  some  instances  where  projects  have  been  planned  and 
announced  without  having  been  given  the  opportunity  to  provide  input  at  early  stage  of  the 
process.  This  is  certainly  not  the  rule,  but  this  evaluation  concludes  that  the  Office  must 
strengthen its efforts to systematically seek and obtain stakeholders feedback before and  during 
the execution of the actions set out in its work programme. The Office should therefore consider 
adopting  practices  that  promote  effective  consultation  of  the  Members  of  the  Observatory 
network. As an example, studies and reports could systematically describe the extent to which the 
Observatory’s representatives have been consulted. 

Conclusion  on  the  operational  objective  of  equipping  the  Observatory  with  a 
sustainable infrastructure 

In view of the above, it is concluded that the Office succeeded in  delivering on the operational 
objective. It has put a stable and sustainable framework at the service of the objectives pursued 
by  the  Regulation,  allocating  sufficient  human  and  financial  resources  to  its  new  tasks.  This 
evaluation  concludes  that  the  composition  of  the  Observatory  network  is  well  balanced  and  is 
consistent  with  its  mandate  of  helping  the  Office  in  carrying  out  the  activities  set  out  in  the 
Regulation.   

Furthermore,  the  Office  has  succeeded  in  building  good  cooperation  with  the  Observatory’s 
representatives. The public consultation has shown that there is a general positive perception on 
the way the Office informs, interacts with and listens to the stakeholders that participate in the 
Observatory’s  work.  ,  The  Office  should  continue  seeking  an  even  stronger  engagement  from 
stakeholders and provide them with ample opportunities for contribution in all its projects, as this 
has not been always fully achieved. 

The Office’s implementation of the tasks assigned by the Regulation 

The overall assessment of the different activities carried out by EUIPO under the Regulation is 
very positive, in particular for research, training, raising awareness and developing tools. 

Research, publications and training 

As seen above, the Office has since its inception gathered, analysed, published and shared quite a 
substantial body of information and intelligence. 

21 

 
The  Office  has  increased  substantially  the  output  of  the  Observatory  in  terms  of  publications. 
From the entry into force of the Regulation until 31 December 2019, the Office has published 84 
studies, at a rate of a study every 4.7 weeks. One major achievement has been the development of 
transparent  methodologies  for  the  collection,  analysis  and  reporting  of  independent,  objective, 
comparable and reliable data on infringements of IPR, a task of utmost importance that has been 
carried out well according to 83% of the Observatory’s stakeholders. 

Building  up  on  these  results,  the  Office’s  research  has  materialised  in  a  number  of  major 
publications providing valuable insights on the loss of sales, government revenue and jobs caused 
by  IP  infringements55.  Furthermore,  the  Office’s  studies  on  public  awareness  and  use  of  IP  by 
SMEs  are  a  key  source  of  information  for  designing  new  strategies  and  specific  actions  for 
awareness  raising  by  Member  States,  private  sector  stakeholders  and  EU  bodies.  Its  ground 
breaking  report  “Intellectual  Property  SME  Scoreboard”  on  use  of  IP  by  SMEs  is  based  on  an 
EU-wide  survey  reaching  out  to  around  9,000  SMEs.    The  SME  scoreboard  provides  insights 
over  the  different  reasons  why  the  IP  system  may  not  be  meeting  its  full  potential  in  terms  of 
helping SMEs to grow and prosper. The EUIPO has so far published two SME scoreboard reports 
(2016 and 2019), and plans to repeat the exercise every three years, in order to identify trends.  
Finally, the data that the EUIPO collects on the routes, methods and business models used by IP 
infringing  organisations  provide  enforcement  authorities  with  valuable  information  for  the  risk 
assessment and the strategic planning of operational actions by enforcement authorities across the 
EU. Such data also informs the Office’s training programmes, therefore contributing to improve 
the expertise of those involved in the enforcement of IPR. 

Some indicators provided by the EUIPO suggest that its Observatory dedicated webpage and its 
publications attract increased interest. 

Table 6 
Reach out of Observatory publications 
(Source: EUIPO 2019 Annual Report) 

2016 

2017 

2018 

2019 

Observatory website visitors (per month) 

5 558 

8 077 

12 924 

9 360 

Downloads  of 
Observatory website 

relevant  paper/publications 

from 

the 

Quotations  of  Observatory  studies  and  reports  by  EU 
institutions 

35 384 

152 968 

113 976 

126 010 

14 191 

9 343 

10 452 

18 215 

The  Office’s  extensive  training  programmes  carried  out  in  collaboration  with  the  relevant  EU 
bodies  (such  as  CEPOL,  Europol,  OLAF  or  Eurojust)  and  various  national  and  international 
authorities and organisations have closed the existing gaps in developing the required expertise. 
Today,  training  on  IP  enforcement  is  no  longer  limited  to  customs  officials,  but  is extended to 
police  officials,  judges  and  prosecutors.  This  is  an  activity  that  neither  the  Commission 
departments  nor  the  EU  bodies  mentioned  above  pursue  before  the  entry  into  force  of  the 
Regulation.  

To date, the Office has trained around 4,100 people working in IP enforcement in more than 88 
training events with participants coming from across the EU. The surveys carried out after each 
training  event  consistently  show  high  levels  of  satisfaction  among  participants.  Between  2015 
and 2018, the average satisfaction rate was 97.4%. Furthermore, according to the contractor “the 

55  All  works  published  by  the  EUIPO  in  the  context  of  the  Observatory  are  available  on  

https://euipo.europa.eu/ohimportal/en/web/observatory/observatory-publications 

22 

 
 
 
                                                      
 
training  programs  were  seen  by  interviewees  as  valuable  opportunities  for  exchange  of 
knowledge  between  judges  as  well  as  between  public  stakeholders  such  as  customs 
representatives  or  judges  and  private  stakeholders  such  as  companies  having  experienced 
infringement on the other side”56. The Office’s training programmes received positive responses 
from 72% of the Observatory’s stakeholders responding to the public consultation. 

Raising awareness 

The Office’s publications also contribute to the objective of raising awareness. First, the Office 
promotes  the  release  of  its  publications.  According  to  the  contractor’s  research,  the  Office’s 
studies  published  between  2012  and  2017,  were  mentioned  or  commented  in  nearly  2,000 
published articles and generated a total value of €8.3 million in advertising value equivalency57. 
Second, the knowledge generated by the Office’s research and publication activities, for example 
on the individuals’ behaviours towards counterfeiting and piracy, enables it to design and deliver 
effective awareness initiatives. 

In addition, the Office has invested €1.5 million in different awareness campaigns using a grant 
scheme.  The  campaigns  are  designed  and  implemented  by  third  parties,  usually  on  a  national 
basis. The campaigns implemented in 2018 and 2019 reached 60 million Europeans, at a cost of 
approximately €1 per 59 individuals reached. The ‘Authenticity campaign’58, carried out by three 
beneficiaries of €50,000 worth of grants each in 2016, is one such example. 

The authenticity campaign was implemented in three capital cities (Paris, Rome and 
Madrid) and a couple of smaller ones, with the support of local authorities. It 
targeted the general public in local environments through an advertising campaign 
in the city (bus and metro stations during the Christmas period), social media 
activities and in some cases training of enforcers. Based on the reporting of the 
project at the end, the campaign reached 4,2 million people on Facebook and more 
than 35 million people saw the poster campaign in major train and metro stations 
(data aggregated for all three countries). In Rome alone more than 200 local 
enforcers were trained and were followed up by seizures of counterfeit goods. The 
success of this campaign and the potential of the project developed at the end of 
2018 in the creation of a European Cooperation project (with national offices) in 
EUIPO to extend the piloted project at European level with a view to establish over 
the years a European network of “authenticity” cities. 

According  to  the  Office,  the  campaigns  organised  by  third  parties  in  Member  States  (and  co-
funded  by  the  Office  in  2017)  have  reached  60  million  Europeans  in  10  EU  countries, 
corresponding  to  12%  of  the  EU’s  population.  This  includes  800  000  teachers  reached  by  the 
campaign organised by the European Trade Union Committee for Education. 

In 2019, the Office conducted a Europe-wide media campaign coinciding with the publication of 
its 2019 Status Report on IPR infringement. The campaign covered all EU Member States and 
targeted print, online and audiovisual press for two weeks. 

Graphic 1 

56 Technopolis, Evaluation of the application of Regulation 386/2012, 2017, p. 55. 
57 These results are based on the monitoring carried for the EUIPO during the period of one week following 
each publication. For cost-effectiveness reasons, only five countries are monitored (Germany, France, 
Italy,  Spain  and  the  UK).  AVE  measures  the  benefits  a  client  gets  from  media  coverage  of  its 
campaign;  the  higher  the  AVE,  the  higher  the  visibility.  AVE  is  a  proxy  to  measure  readership  and 
audience.  

58 https://authenti-city.eu/ 

23 

 
 
                                                      
Reach out of 2019 Status Report media campaign 

(Source: EUIPO) 

The campaign was developed in close cooperation with Observatory stakeholders who provided 
support  and  shared  it  further.  According  to  the  Office,  the  campaign  reached  an  estimated 
advertising  value  over  €4.1  million  for  1,438  clippings  in  total.  The  campaign  also  reached 
qualitative  coverage  as  major  media  outlets  in  key  countries  reported  on  the  study  and  its 
findings. 

The  real  impact  that  the  Office’s  campaigns  have  in  influencing  consumer  behaviour  and 
lowering buying or use of IP infringing products is difficult to measure. Still, some positive signs 
are emerging. For example, 52% of people now consider having a ‘rather good’ understanding of 
IP, an increase of 10 points compared to 201359, and according to a Eurobarometer report from 
2018,  90%  of  respondents  agree  that  arrangements  need  to  be  in  place  to  limit  the  spread  of 
illegal content on the Internet. 

The evaluation concludes that the Office has delivered both in quantity and quality on its task of 
raising  awareness. This conclusion  seems  to  be  shared  by  most  stakeholders  represented  in  the 
Observatory - 88% of them indicated that the Office carried out its task of raising awareness well. 

The  Office’s  research  and  publishing  activities  are  particularly  useful  for  awareness  raising 
among policy makers. The Office’s studies, surveys and reports have been used in a number of 
Commission  proposals  and  initiatives,  such  as  the  2015  Single  market  strategy,  the  2016 
copyright package, the 2016 Start-up initiative and the 2017 IP package60 as well as the IP market 
watch  list61.  The  Observatory’s  public  sector  representatives  also  confirmed  the  usefulness  and 
importance of the Office’s publications. According to the contractor “At the national level, public 
stakeholders  were  particularly  enthusiastic  about  the  sectorial  studies  and  other  ‘quantifying’ 
reports; their use is often linked to awareness-raising campaigns where numbers are required”62. 
In  addition  “ten  national  authorities  interviewed  report  that  the  data  provided  by  the 
Observatory is regularly used in policy documents (although many of these seem to be internal 
documents)  and/or  in  internal  briefings  and/or  published  on  national  websites.  The  data  and 
studies therefore reinforce the capacity for IP enforcement in national policy making”63. 

59 EUIPO, European Citizens and Intellectual Property: Perception, Awareness and Behaviour (2017). 
60 Upgrading the Single Market: more opportunities for people and business, COM(2015) 550, 28 October 
2015; Towards a modern, more European copyright framework COM(2015) 626, 9 December 2015; 
Europe's  next  leaders:  the Start-up  and  Scale-up  Initiative,  COM(2016) 733,  22  November  2016;  A 
balanced  IP  enforcement  system  responding  to  today's  societal  challenges,  COM(2017)  707,  29 
November 2017. 

61 Commission Staff Working Document Counterfeit and Piracy Watch List of 7.12.2018, SWD(2018) 492 

final. 

62 Technopolis, Evaluation of the application of Regulation 386/2012, 2017, page 39. 
63 Technopolis, Evaluation of the application of Regulation 386/2012, 2017, page 52. 

24 

 
 
                                                      
Tools 

The Office has also achieved good results on creating tools to support enforcement of IPRs. Such 
tools  are  available  through  the  IP  Enforcement  Portal  (‘IPEP’).  While  IPEP  is  relatively  new 
(some of its components were launched in 2014, while others in 2016), it is clear that its usage is 
growing.  By  the  end  of  2019,  there  were  65  law  enforcement  authorities  with  access  to  IPEP. 
These  authorities  include  all  EU  customs  authorities,  Europol,  OLAF  and  police  forces  from 
Belgium, Bulgaria, Cyprus, Czechia, Germany, Estonia, Spain, France, Greece, Hungary, Ireland, 
Italy, Latvia, Malta, the Netherlands, Portugal and Romania. The tool assembles data, collected 
by the Commission’s department for Taxation and Customs Union, on border detentions from the 
EU’s borders. The EPIP also receives and makes available data on single market detentions of IP 
infringing goods (furnished by 25 Member States64). The tool  contains over 950,000 records of 
detentions  within  the  EU  and  at  its  borders.  The  estimated  value  of  these  detentions  is  over 
€30,500 million65. 

EPIP  is  also  used  by  owners  of  IPR  through  its  exchange  of  information  function  (previously 
known as EDB). These owners feed data to the Portal. Between 2014 and 2019, the number of 
private sector stakeholders using the tool has grown from 117 to 810. Between 2016 and 2019, 
the overall number of applications for action sent by IPR owners to customs authorities through 
the  Portal  rose  from  40  to  176.  Most  of  these  companies  also  use  the  report  non-EU  cases 
function (previously known as ACRIS). It is clear that the portal has a great potential. It may for 
example in the future be made available to Internet platforms such as online marketplaces so that 
they  can  verify  the  existence  and  ownership  of    for  example,  trade  marks  whenever  there  is  a 
reason to believe that counterfeited goods are being offered for sale through their services. At the 
same time, the Office should avoid that the portal duplicates already existing tools.  

Assessment on effectiveness 

The  entrustment  of  the  Observatory  and  other  related  tasks  to  the  Office  has  resulted  in  an 
increase in resources and in quantitative output which is reflected in the table below:  

Table 7 
Observatory resources and output evolution 
Source: EUIPO and Commission own data 

Staffing and Observatory network 

5/6/2012 

31/12/2019 

Staff assigned to the Observatory  

Representatives to the Observatory  

3 

67 

55 

127 

STUDIES  

Before the Regulation 

After the Regulation 

09/2009 – 05/2012 

05/2012-12/2019 

29 Months 

89 months 

Legal studies on civil law enforcement of IPR 

4 

Economic studies on IP 

Studies on awareness of IP 

- 

8 

8 

64  Germany  has  not  yet  joined  this  data  collection  exercise.  Sweden  and  Austria,  have  declared  that  no 
enforcement authority in their country has the power to act ex officio in the internal market detentions 
of IP infringing goods. 

65 The precise figure is: €30,479,106,850.25. 

25 

 
 
 
                                                      
4 

Studies on infringements of IPR 

Studies on enforcement of IPR 

Other studies 

Total studies 

AWARENESS 

Awareness campaigns funded 

TRAINING 

Training events carried out 

Number of participants  

TOOLS & DATABASES 

Enforcement tools (EDB, ACIST, ACRIS) 

Legal  use  of  IPR  (Agorateka,  Orphan  Works 
database) 

Training tools (Virtual Training Centre) 

28 

34 

6 

84 

30 

84 

4,100 

6 

3 

2 

1 

As indicated, the way in which the Office has been  carrying out those tasks has generally been 
much  appreciated  by  Member  States  representatives  and  private  sector  stakeholders  to  the 
Observatory. 

In  this  regard,  the  contractor  concluded  that  the  Office  had  improved  the  protection  of  IPR 
delivering  on  all  the  objectives  in  a  manner  that  was  independent  while  being  open  to  all 
stakeholders.  Likewise,  43%  of  respondents  to  the  public  consultation  consider  that  the  Office 
has  achieved  good  or  very  good  results  in  helping  to  improve  the  protection  of  IPR66.  The 
approval  rate  is  higher  among  professionals  and  organisations  (68%)  and  higher  still  within 
Members of the Observatory (88%).  

The overall result is therefore positive. However, some areas have emerged as requiring attention 
and possible improvement. These will be addressed below. 

i. Less is more? 

Some  stakeholders  consider  that  the  Office  may  be  delivering  too  much.  Some  representatives 
struggle  to  be  fully  dated  on  all  the  activities  and  projects  carried  out  by  the  Office.  The  vast 
number of streams of work has also caused occasional delays in meeting deadlines. 

The growing range of projects and activities is one of the factors that some stakeholders consider 
as  impairing  the  Office’s  effectiveness.  Some  of  these  views  may  be  related  to  the  vested 
interests  of  the  stakeholders  in  question.  The  International  trademark  association  (INTA)67  for 
example considers that  the focus of the Observatory work should be on delivering on the fight 

66 A quarter (24% ) of the respondents has a negative perception of the results achieved, while 31% did not 

express an opinion on the overall performance of the Office under the Regulation, and. 

67  INTA  is  an  association  of  brand  owners  and  IP  professionals  covering  7200  organisation  in  191 

countries. INTA is registered in the EU’s transparency Register. 

26 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                      
against infringements of designs and trademarks. That is understandable as INTA represents the 
interests of trade mark owners and of professionals in trade mark protection. Some other private 
stakeholders  would  like  to  see  the  Office  dedicating  more  projects  on  piracy  (infringements  of 
copyright)68. Associations representing the interests of holders of IPR (trade marks, copyright or 
other)  tend  to  be  less  supportive  of  projects  and  activities  that  are  not  directly  related  to  IP 
infringements, such as those that are closer to the concerns of consumer associations and other 
stakeholders from civil society. For example, one of these right holders organisations commented 
that  the  Observatory  “is  not  there  to  justify  IPR  infringements,  to  blame  all  piracy  on  the 
(overstated) lack of legal offers, to promote open licensing.” 

Such a range of opinions result from the heterogeneous nature of the Observatory membership, 
which  is  also  one  of  its  strengths.  As  mentioned  in  the  contractor’s  study:  “A  critical  success 
factor is  hence  the  openness  of  the  Observatory  to all  types of stakeholders  and  not  only right 
holders” and “it’s widely perceived independence from industry”69. 

The  growing  number  of  projects  in  which  the  Office  is  involved  can  lead  to  suboptimal 
implementation. At times, the Office takes on new projects without having delivered on or begun 
previously agreed actions. This was the case for the study on the role of social media in relation 
to IPR infringement, the study on search engines, the study on the availability of forward-looking 
blocking injunctions, as well as the mapping of market surveillance authorities. These initiatives 
were included in the work programmes of 2018 and 2019, but by the end of 2019 no substantial 
progress had been made. 

The  Office  should  therefore  manage  expectations  better  and,  where  appropriate,  allocate 
additional financial resources to its activities under the Regulation to keep up with its planning 
and avoid that certain projects are delayed for lack of budget. 

ii. Location 

The location of the Office´s headquarters (Alicante, Spain) is seen by some (10% of respondents 
and  33%  of  the  Members  of  the  Observatory)  as  problematic  given  that  many  private  sector 
stakeholders have their seat in Brussels (or attend meetings in Brussels on a regular basis). These 
stakeholders consider it to be time consuming to attend the Observatory’s meetings in Alicante. 
The Office has counterbalanced this by organising some if its meetings in Brussels. In addition, 
the  Office  funds  the  travel  and  accommodation  of  the  Members  of  the  Observatory  network. 
Participating in the work of the Observatory will always require time-consuming investment from 
the part of its members, justified by the relevance of its tasks and activities; and the meetings of 
the  Observatory  usually  have  a  good  attendance  rate.  In  2018,  the  representatives  from  28 
Member  States  and  42  representatives  from  private  sector  stakeholders,  civil  society  and 
observers attended the Observatory plenary meeting (70 attendants in total, out of 114 invitations 
sent). In 2019, 27 Member States and 44 representatives from private sector stakeholders, civil 
society  and  observers  attended  the  Observatory  plenary  meeting  (71  attendants  in  total,  out  of 
117 invitations sent). 

This  evaluation  concludes  that  the  location  of  the  Office  does  not  significantly  affect  the 
participation of stakeholders in the Office’s activities under the Regulation. 

iii. Collecting data from Member States 

The  Regulation  requires  Member  States  to  inform  the  Office  of  their  overall  policies  and 
strategies on the enforcement of IPR, provide available statistical data on IPR infringements and 
inform the Office of significant case-law.  

68  “Interviewees  dealing  with  digital  content,  copyright  infringement  etc.  pointed  to  an  imbalance  which  could  be 
explained  partly  with  the  fact  that  the  Observatory  was  integrated  in  OHIM/EUIPO  with  a  clear  focus  on 
trademarks  and  designs.  “I  can  understand  that  at  the  start  they  started  with  trademarks,  design,  the  core 
business of the Office. But there should be a change in their approach” (observer). Technopolis, page 74 

69 Technopolis, pages 59 and 60. 

27 

 
                                                      
Typically, a representative of a Member State to the Observatory comes from a specific IP related 
body in their country and often faces difficulties in obtaining data and support from other public 
bodies  that  may  not  have  IP  enforcement  within  their  priorities.  This  difficulty  has  been 
particularly acute in projects that involve collection of case-law or of data related to the costs of 
IP enforcement. 

The  Office  has  launched  a  reflection  together  with  the  Member  States,  which  led  to  an  agreed 
approach  on  how  to  minimise  the  difficulties  in  collecting  data;  namely  the  country  reports 
detailing  the  estimated  data  needs,  the  sources  and  contact  persons  and  guidelines  on  how  to 
transmit it to the Office. However, data collection from Member States remains a challenge. 

iv. Accessibility of the Observatory publications 

Research on IP and IP infringements is one of the most valued activities of the Office under the 
Regulation. However, the way its publications are made available to the public on the Office’s 
website  is  suboptimal.  The  search  area  displays  the  Office’s  publications  is  in  descending 
chronologic order and the key words search tool is not sufficiently helpful. As a result, finding a 
particular study can be cumbersome. The contractor’s study points out that some of the Office’s 
publications  lack  well  organised  publishing  information  (clear  indication  of  the  date  or  year, 
publication  number,  how-to-quote  guidance,  etc.).  The  Office  has  in  the  meantime  corrected 
some  of  these  shortcomings,  in  particular  on  publishing  information  of  its  new  studies  and 
reports,  but  navigation  between  the  different  publications  in  the  Office’s  website  could  still  be 
made easier.  

v. International cooperation 

The  public  consultation  showed  that  not  all  stakeholders  appreciate  the  manner  in  which  the 
Office  has  been  providing  technical  assistance  and  training  programmes  to  IP  offices  and 
officials in non-EU countries.  

While there is a broad consensus on the importance of the task, this is the activity with the least 
favourable evaluation among Members of the Observatory. However, it should be noted that this 
area  had  the  most  respondents  express  no  opinion  (69%  of  all  respondents,  63%  if  only 
professionals  and  organisations  are  considered,  and  55%  within  the  Members  of  the 
Observatory),  which  could  be  the  result  of  lack  of  awareness  on  the  activities  carried  by  the 
Office in  relation to  non-EU  countries. The  level  of positive  feedback  was  substantially  higher 
than  the  number  of  replies  expressing  a  negative  evaluation  of  the  Office’s  performance  (21% 
versus  9%  for  all  respondents,  30%  versus  6%  when  only  professionals  and  organisations  are 
considered and 33% versus 11% within the Members of the Observatory). 

The contractor’s study had already mentioned that “Some stakeholders lacked awareness of the 
Observatory’s  responsibilities  towards  international  cooperation  with  third  countries.”  The 
study also reports on the need for the Office to be fully aligned with the EU’s IP strategy in non-
EU countries, which is an integral part of the EU trade policy. 

The Office carries out international activities that both fall under the Regulation (with a focus on 
supporting EU activities on counterfeiting and piracy) and under the EU Trade Mark Regulation 
(related to the administration of trade marks and design systems). These activities are integrated 
in  the  Office’s  annual  work  programme.  However,  for  stakeholders  the  distinction  between 
different projects carried out under either of these regulations may not be clear.  

The  importance  of  cooperating  with  non-EU  countries  in  the  fight  against  counterfeiting  and 
piracy  cannot  be  overstated.  Criminal  organisations  involved  in  IP  infringements  operate 
globally, not nationally. Counterfeits placed on the EU market are mainly manufactured in non-
EU countries and imported into the EU. Border controls are therefore vital and could be increased 
but such measures alone will not eradicate counterfeit imports. Infringements of IPR taking place 
in  other  countries  also  harm  European  business  and  cooperation,  trade  diplomacy  and 
multinational engagement are indispensable. Not all countries have the same capacity, or give the 
same priority, to the fight against counterfeit and piracy. It is therefore important that the Office 
establishes cooperation arrangements with IP offices from non-EU countries. 

28 

 
The  Office’s  international  activities  consist  of  implementing  EU  funded  projects  for  the 
Commission.  The  Office’s  technical  expertise  and  its  network  of  contacts  with  relevant 
stakeholders in IP worldwide is a valuable asset. However, as the Regulation explicitly mentions, 
it  is  important  for  the  Office  to  consult  with  Member  States.  In  addition,  the  Office’s 
international  activity  should,  like  any  other  activity  under  the  Regulation,  benefit  from 
constructive  stakeholder  input.  The  recent  creation  of  an  expert  group  dedicated  solely  to 
international  activities  should  enable  more  engagement  with  Members  of  the  Observatory 
network.  

Efficiency of the initiative and its implementation 

The efficiency criterion considers whether the Office’s results in carrying out its activities under 
the Regulation were achieved in a cost-effective manner. 

Stakeholders  bear  costs  to  the  extent  that  they  allocate  time  to  participate  in  such  meetings. 
However,  the  costs  of  implementing  the  Regulation  are  mainly  covered  by  the  Office  budget, 
including the travel and accommodation costs of representatives and experts when they attend the 
various meeting of Observatory. The Office budget is solely funded by the fees paid by the users 
of the EU trade mark and designs systems. 

The  Office’s  total  annual  budget  allocated  to  the  activities  under  the  Regulation  is  on  average 
€9.25  million,  including  average  staff  costs  of  €3.75  million.  The  Office’s  Observatory 
department  started  its  activities  in  2012  with  an  annual  budget  of  €2.4  million  and  34  staff 
members70. To accommodate its expanding activities the Office’s Observatory department grew 
at a quick pace, quadrupling its budget and increasing the staff to 55 staff members. In 2019, the 
budget of the Observatory department was €11.73 million, corresponding to less than 5% of the 
Office’s overall spending (the Office’s total spending in 2019 was €237 million71). 

Graphic 2 

Budget and number of staff allocated by the Office to the Observatory department 

(Source: EUIPO) 

70  In  the  years  of  2012  and  2013  the  Observatory  department  included  the  Office’s  Academy.  The 
Academy subsequently became a department on its own. And that it is the reasons why there is a drop 
of staff between 2013 and 2014. 

71  Source: EUIPO Annual accounts 2019, provisional version 2019. 

29 

 
                                                      
60

50

40

30

20

10

0

Budget and staff  

 14,00 €  

 12,00 €  

 10,00 €  

 8,00 €  

 6,00 €  

 4,00 €  

 2,00 €  

 -   €  

s
n
o

i
l
l
i

M

2012

2013

2014

2015

2016

2017

2018

2019

Observatory team (Number staff)

total budget

In 2017 and 2018, the Office’s spending on the activities under the regulation was split between 
the different work streams, as indicated below (staff included): 

Table 8 

Observatory spending 

Budget 2017 Exec 

(Source: EUIPO annual reports) 
% of total 
budget 
12.7% 

1,553,905.30 € 

Budget 2018 

1,383,545 € 

% of total 
budget 
10.4% 

Subject Area 

Economic and Statistics 

Enforcement  

IP Enforcement Portal  

IP in the Digital World 

Legal and International 

Public Awareness 

Statutory Meetings 

5,575,706.05 € 

included in 
Enforcement 72 

1,201,656.28 € 

1,161,440.54 € 

1,678,011.48 € 

745,601.23 € 

45.7% 

3,643,234 € 

27.4% 

0.0% 

2,085,662 € 

15.7% 

9.8% 

9.5% 

1,202,767 € 

555,061 € 

9.1% 

4.2% 

13.7% 

3,725,501 € 

28.0% 

6.1% 

1.1% 

1.3% 

0.0% 

643,807 € 

35,510 € 

10,487 € 

2,520 € 

4.8% 

0.3% 

0.1% 

0.0% 

Orphan Works Deployment 

128,587.16 € 

Virtual Training Centre 

158,482.73 € 

EU SMEs and IP 

1,522.55 € 

GRAND TOTAL 

12,204,913.32 €  

13,288,093 € 

The  areas  with  the  highest  Office  spending  are  (1)  enforcement  and  the  Portal,  (2)  public 
awareness and (3) economic and statistics. 

72 The 2017 budget did not distinguish between the EU IPR Enforcement Platform 2020 and other activities 

related to enforcement. 

30 

 
 
 
 
 
 
 
  
  
 
                                                      
 
Indeed,  around  44%  of  the  budget  administered  by  the  Office’s  Observatory  department  is 
dedicated to enforcement activities. This includes the design, deployment and maintenance of IT 
tools and databases such as EDB, ACRIS, ACIST currently integrated into one single tool: the IP 
Enforcement  Portal73.  Enforcement  activities  also  include  the  training  programmes  for  officials 
involved in enforcement. Public awareness activities are also a major area of spending, which has 
doubled between 2017 and 2018, corresponding to 28% of the Observatory department’s budget. 

The Office spends around 11% of the Observatory department budget on economic and statistics, 
which  consist  in  research  and  publication,  one  of  the  activities  most  appreciated  by  Member 
States authorities, private sector stakeholders and the IP community in general.  

The costs of operating the Observatory can be benchmarked against a similar organisation, such 
as the European Monitoring Centre for Drugs and Drug Addiction (‘the Centre’). The Centre has 
been tasked with providing factual, objective, reliable and comparable information on drugs and 
drug  addiction  and  their  consequences.  Its  main  tasks  include  collecting  and  analysing  data, 
improving  data-comparison  methods,  disseminating  data  and  cooperating  with  peer  institutions 
within the EU and internationally. Both the Office and the Centre look at illicit and or undesired 
practices that harm individuals and society. Their functions are in that respect of a similar nature. 
The  Centre  has  been  operating  with  an  average  of  105  full-time  staff  per  year  and  an  average 
annual  budget  of  EUR  16  million74.  The  Office’s  Observatory  department  has  55  members  of 
staff  and  manages  an  increasing  average  budget  of  €9.25  million  (the  2019  budget  was  11.73 
million).  The  Observatory  department  has  almost  half  of  the  staff  of  the  Centre.  However,  it 
benefits  from  the  support  services  that  already  exists  in  the  Office  (such  as  Human  Resources 
departments, IT services, financial services, etc.). Taking these support services into account75, it 
is assumed that the two organisations are working on proportionately comparable resources76. 

As mentioned, representatives to the Observatory also bear costs, even if they may be considered 
minimal. Participation in the Observatory  meetings is voluntary and the Office bears the travel 
and  accommodation  costs.  Still,  it  represents  a  cost  in  terms  of  working  time  for  the  people 
involved.  These  representatives  have  to  prepare  their  participation,  collect  data  and  feedback 
from their constituencies, travel to and from the meetings, and subsequently report back on the 
outcomes of such meetings, in addition to providing further input in between meetings whenever 
necessary.  Being  a  representative  to  the  Observatory  is  voluntary.  Continued  interest, 
participation in the Observatory’s work and good attendance at meetings lead to the conclusion 
that the cost/benefit ratio for the Observatory stakeholders is positive. 

The implementation of the Regulation has brought about visible benefits, such as the availability 
of objective, reliable and comparable data on the value and role of IP as well as on the volume 
and impact of IP infringements. The data enables a better understanding of the challenges posed 
by  counterfeiting  and  piracy  and  feeds  policy  making  both  at  EU  and  national  levels.  The  IP 
enforcement tool is also a tangible benefit linking the different enforcement authorities and right 
holders across the EU. In addition to more and better data and tools, the Office has put in place, 
in cooperation with relevant national and EU bodies, training programmes. All the above outputs, 

73 In the table, the budget relating to the IP Enforcement Portal and the rest of the Enforcement activities is 

aggregated in 2017 and separated in 2018. 

74  Commission  Staff  Working  Document,  Evaluation  of  the  European  Monitoring  Centre  for  Drugs  and 
Drug Addiction SWD(2019) 174 final, page 10 and subsequent EMCDDA general reports of activities. 
75 EMCDDA support staff accounts to about 30% of overall staff. For the EUIPO it would estimate that 24 
persons may be needed if the observatory department was a standalone agency. Compare: Commission 
Staff  Working  Document,  Evaluation  of  the  European  Monitoring  Centre  for  Drugs  and  Drug 
Addiction SWD(2019) 174 final, page 28. 

76 The EMCCDDA manages €16 million with 105 staff, while the Observatory manages €12  million with 
an  estimated  equivalent  staff  of  79  persons  (see  previous  footnote)  leading  to  a  similar  amount  of 
budget managed per staff member €151-153 K 

31 

 
                                                      
including  the  Office’s  roles  in  funding  and  supporting  public  awareness  campaigns,  are  highly 
appreciated by stakeholders and national authorities, as shown both by the feedback collected by 
the  contractor  and  in  the  public  consultation.  In  addition,  the  Observatory  enables  a  regular 
sharing  of  information,  knowledge  and  best  practice  between  all  the  major  actors  in  IP 
enforcement.  The  value  of  the  network  effect  should  not  be  underestimated.  The  bringing 
together, on a regular basis, of a substantial number of authorities and stakeholders under a stable 
and durable collaborative framework, under agreed work programmes also facilitates every day 
cooperation  between  Member  States’  authorities,  as  well  as  EU  bodies  and  private  sector 
stakeholders outside the remit of the Observatory’s activities. 

These  benefits  are  difficult  to  quantify  and  therefore  this  evaluation  does  not  make  a  direct 
comparison  between  the  costs  and  benefits.  However,  some  proxies  provide  indications  on  the 
proportionality of the costs vis-a-vis the outputs of the Office’s work under the Regulation. Some 
proxies  related  to  efficiency  of  public  agencies  link  the  number  of  staff,  staff  budget  and 
operational budget (that is, budget of the Observatory department excluding salaries). The table 
below show the evolution of the ratios from 2012 to 2019: 

Table 9 
Evolution of EUIPO staff, staff budget and operational budget  
(Source: own calculations based on EUIPO/Observatory internal data and annual reports) 

Year/item 

2012 

2013 

2014 

2015 

2016 

2017 

2018 

2019 

Operational  expenditure 
per  staff  posts  (thousand 
Euros)77 

Operational  budget  vs 
staff budget78 

27 

52 

121 

292 

171 

178 

156 

111 

60% 

66% 

97% 

340% 

209% 

158% 

157% 

109% 

The table above shows that the Observatory department started by managing around €27,000 per 
member of staff per year. This ratio rose sharply to then slowly fall, due to increases in staff. In 
2019, the ratio was approximately €111,000 per member of staff. Monitoring is needed to ensure 
that both ratios maintain their current good levels and do not fall beyond the 2014 numbers. 

The table also shows that the operational budget since 2015 exceeds the staff budget. This ratio 
has been influenced by a sharp frontloading of budgetary resources that was matched by  much 
more  slow  increases  in  staff  numbers.  A  rapid  growth  in  the  initial  years  has  meant  that  the 
increases in budget was not accompanied an equally fast growth in staff. 

If  these  numbers  are  compared  with  the  distribution  of  staff,  support  and  operation  budgets  in 
other agencies, it can be observed that the ratio of operational budget versus staff budget of the 
Observatory  department  is  in  general  higher  than  the  ratios  observed  in  Centre,  and  the  EU 
Agency  for  Fundamental  Rights  (FRA)  and  lower  than  the  European  Agency  for  Safety  and 
Health (EU-OSHA) and the European Asylum Support Office (EASO). 

Table 10 
Staff, operational and non-operational budget of the Observatory and some EU agencies 
(Source: Evaluation of the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) 2018, 
SWD(2019) 174 final, and own calculations based on EUIPO Annual reports79 

77 The higher the amount of operational expenditure per staff post, the more efficient is an agency. These 
numbers need to be interpreted in a context as sometimes they are blurred by frontloaded budget for 
projects implemented over several years (see e.g. 2015) 

78 The  higher the proportion of operational budget compared to staff budget it  means that an operational 

budget is more efficiently managed from a quantitative perspective. 

32 

 
 
                                                      
Budget 

Staff 

Support/Administrative80 

Operational81 

EMCDDA 

60% 

10% 

30% 

FRA 

53% 

11% 

36% 

EUIPO 

EU-OSHA 

EASO 

44% 

n.a. 

55% 

36% 

8% 

52% 

21% 

12% 

67% 

Overtime increases in budget and staff posts triggered increases of outputs. The graphic 3 below 
shows that training events, studies and Observatory members increase at a pace lower than the 
budget increase. Still, between 2015 and 2019 the number of studies has doubled. The number of 
stakeholders increased sharply during 2012, to become more stable onwards, as it was felt that 
the  success  of  the  work  of  the  Office,  and  of  the  Observatory,  was  dependent  on  an  upfront 
comprehensive  and  balanced  composition  of  stakeholders’  representation  to  the  Observatory. 
That said, there are several indicators that have grown at a higher rate than the budget.  One such 
indicator is the number of meetings organised in the remit of the Observatory (dark brown line). 
This is also the case of several indicators relating to IT tools, namely: number of national police 
authorities who have access to the IP Enforcement Portal (light blue line), number of times that 
enforcement  authorities  have  accessed  the  IP  Enforcement  Portal  (light  green  line),  number  of 
companies using IP Enforcement Portal (violet line) and number of applications for action82 sent 
through IP Enforcement Portal (orange line). Overall, the Graph shows that increases in budget 
and staff are linked to the increase in outputs. 

Graphic 3 
Evolution of the budget, staff and outputs over time83 
(Source: own calculations based on data from EUIPO/Observatory internal data) 

79 The calculations are explained in Annex 3 of the final report of the external evaluation, Table 10, p. 74; 
these  are  based  on  the  2017  budgets  of  the  respective  agencies.  EUIPO  data  are  only  for  the 
Observatory staff and operational budget for 2017. 

80 In the case of the Observatory Department, because it is not a self-standing agency, but an administrative 

unit within the EUIPO, there is no support/administrative budget to consider. 

81 The  higher the proportion of operational budget compared to staff budget it  means that an operational 

budget is more efficiently managed from a quantitative perspective. 

82  Holders  of  IPR  request  customs  to  detain  goods  suspected  of  infringing  IPR  through  the  filing  of 
applications for action, often referred to as AFAs. The EUIPO’s IP Enforcement Portal facilitates the 
filing of the AFA form, the sending of the AFA, and the use of it, by customs authorities. 

83  The  total  budget  figure  (shaded)  is  expressed  in  €  millions,  while  staff  and  outputs  in  actual  numbers 
except  for  the  outputs,  where  (to  keep  everything  on  one  graph  showing  proportions)  the  numbers 
shown are divided by the number indicated next to the item description in the legend (e.g. the number 
of companies in IPEP is the actual number divided by 20). 

33 

 
 
                                                                                                                                                              
70

60

50

40

30

20

10

0

Indicators, staff and budget evolution 

 14,00 €  

 12,00 €  

 10,00 €  

 8,00 €  

 6,00 €  

 4,00 €  

 2,00 €  

 -   €  

2012

2013

2014

2015

2016

2017

2018

2019

TOTAL budget

Observatory staff

access to information by Enforcers in IPEP  /100

companies in IPEP /20

Police authorities in IPEP

AFA sent through in IPEP /4

Observatory stakeholders /2

Meetings (excluding training)

Enforcement training events

studies

From  a  stakeholder’s  perspective,  according  to  the  contractor’s  study,  most  interviewees  stated 
that  the  costs  borne  by  them  are  proportionate  to  the  benefits  generated  by  the  Observatory’s 
activities84.  While  participating  in  Observatory  meetings  and  activities  is  time  consuming, 
stakeholders stress that costs are worth the benefits. The high level of stakeholders’ engagement 
in  the  Observatory’s  work  also  indicates  that  they  find  it  cost  effective.  For  instance,  data 
collection takes time, but stakeholders would not carry out this task more efficiently at national 
level and, without the Office’s intervention national authorities would not aggregate data at EU 
level.  According  to  the  contractor’s  study,  “The  Regulation  bundles  resources,  capacity  and 
knowledge  and  expertise  into  one  single  organisation.  This  leads  to  lower  administrative  costs 
and burdens. Such efficiency could not be achieved at national level.” 

The public consultation feedback on efficiency does not seem to be very conclusive, but it leans 
more towards the positive side. Half of the respondents to the public consultation did not express 
an opinion on the question of whether the costs supported by the Office are proportionate to the 
generated outputs and benefits. For some respondents (8%), the Office is not investing enough. 
The rest  are  divided  between  those  who  find the costs justified  (21%),  those  who  find  that the 
same or better results could be achieved with a lower budget (11%) and those who find that the 
costs  are  not  justified  or  proportionate,  for  some  other  reason  (9%).  Criticism  of  the  Office’s 
spending  as  expressed  in  the  public  consultation  seems  to  be  more  linked  to  the  respondents’ 
particular  opinions  on  IP  or  on  what  the  Office’s  priorities  should  be  rather  than  to  possible 
inefficiencies  in  the  Office’s  budgetary  management.  As  an  example  of  the  first  group,  one 

84 Technopolis study, page 68. 

34 

 
 
 
                                                      
respondent finds that “the costs could be saved by dissolving the EUIPO.” In the second group, 
different visions on priorities are linked with the particular interests in which some stakeholders 
are vested (for example, trade mark owners prefer more investment in trade mark  matters) and 
which are not necessarily shared by stakeholders having different concerns. Within the group of 
professionals and organisations, the perception of whether the costs are justified in view of the 
results  obtained  is  much  more  positive,  with  39%  finding  that  the  costs  are  justified,  and  10% 
finding that the Office is overspending. 

According  to  the  contractor’s  study,  “The  general  conclusion  is  that  the  Regulation  under 
evaluation was implemented in an efficient manner. Despite some difference of views by different 
stakeholders on some particularities, the activities and projects carried out by the EUIPO are in 
general viewed as positive contributions to the enforcement of IP rights, to raising awareness, to 
generate  knowledge  and  expertise,  and  to  strengthen  cooperation  between  all  relevant 
stakeholders, while keeping to a minimum the costs incurred by all involved in the work of the 
Observatory (such as time expenditure). There are no indications that the Observatory team is 
over resourced or incurring in disproportionate expenditure in the pursuit of the tasks that were 
attributed to it by the Regulation.” While there is nothing to suggest that the Office is using its 
resources  inefficiently,  it  could  improve  considerably  the  information  that  it  provides  on  its 
activities spending under the Regulation (e.g. having a short addendum to the budget and budget 
execution  on  all  items  for  the  Observatory  expenditures  and  provide  Observatory  expenditure 
data on budgets dedicated to operational and staff costs). 

This  evaluation  concludes  that  the  Office  is  well  equipped  to  carry  out  its  tasks  under  the 
Regulation.  It  has  delivered  in  all  tasks  and  its  spending  is  justified  and  balanced  vis-a-vis  the 
results obtained. In the future, some aspects could be improved, in particular better data could be 
made available to assess more quantitatively the efficiency of the Observatory, also allowing for 
example  to  monitor  the  ratios  of  operational  expenditure  per  staff  posts  and  the  ratio  of 
operational budget vs staff budge, which should not fall beyond the 2014 numbers. 

Coherence of EU intervention 

The  tasks  attributed  to  the  Office  under  the  Regulation  were  designed  to  lower  levels  of  IP 
infringement.  More  fact-based  knowledge  serves  training  and  awareness,  more  integrated 
enforcement  tools  reinforces  cooperation  and  efficiency,  more  and  better  cooperation  in 
enforcement helps tackling supply of IP infringing products whereas awareness raising addresses 
demand.  Reducing  IP  infringements  within  the  EU  requires  reaching  out  to  non-EU  countries 
from which most counterfeits originate.  

Promoting and facilitating the use of IP and combating counterfeits and piracy in a coordinated 
manner  across  the  EU  is  a  key  element  to  reinforcing  a  business  environment  that  favours 
creativity  and  innovation.  The  Office’s  tasks  are  therefore  aligned  with  the  EU  priorities  of 
creating  jobs,  growth  and  investment,  reinforcing  the  single  market  and  promoting  a  fair  and 
rules based trading system. 

Most respondents interviewed by the contractor agreed that there is a broad coherence between 
the objectives of the Regulation and the Observatory’s work. The public consultation, carried out 
after the publication of the contractor’s study, confirmed this finding. Most respondents (56%) – 
71% in the case of professionals and organisations – also agreed that there are no contradictions 
between the Office’s different tasks under the Regulation.  

Some of the respondents considered that it is incoherent to ask the Office to research on the value 
of IP and at the same time carry out tasks relating to strengthening IP enforcement, which assume 
that IP is beneficial, a view that they dispute. However, it should be noted that the EU is strongly 
committed to the protection of IP. Assigning to the Office the task of researching on the value of 
IP  cannot  be  read  as  expressing  hesitations  about  the  benefits  of  IP  to  innovation, 
competitiveness and creation of jobs in the EU.  

Nevertheless, it remains relevant to investigate the extent to which the IP system contributes to 
the  economic  and  social  wellbeing  of  the  EU  and  its  citizens.  The  fundamental  aim  of  IP 

35 

 
protection  is  not  to  increase  profits  of  businesses,  but  to  seek  societal  gains  that  derive  from 
innovation  and  improving  living  conditions.  IP  policies  should  be  based  on  objective  research 
using  tested,  transparent  and  verifiable  methodologies.  Knowing  more  about  the  impact  of  IP 
protection  can  help  decision  makers  avoid  the  pitfalls  of  over  regulating  IP,  which  can  lead  to 
market foreclosure and the creation of barriers to market entry,  thus distorting competition and 
betraying  the  fundamental  raison  d’être  of  IP.  Better  knowledge  on  the  real  contribution  of  IP 
and of the effects of IP infringement also helps raising awareness, which is key to the efforts in 
lowering  demand  for  counterfeits  and  piracy.  Having  new  tools  to  facilitate  enforcement,  and 
sharing  knowledge  on  the  business  models  and  methods  used  by  organisations  profiting  from 
counterfeiting and piracy, supports lowering the offer of counterfeit and pirated products. 

Therefore, the objectives of improving the understanding of the value of IP and of the scope and 
impact of infringements of IPR are coherent with the general objective improving IP enforcement 
and lowering IP infringements. 

Additionally, the close cooperation between the Office and the departments of the Commission 
ensures that the implementation of the Office’s tasks is coherent with and provides support to the 
Commission’s  IP  policy.  The  Commission  departments  provide  a  coordinated  input  to  the 
preparation  of  the  Office’s  work  programmes  and  officials  from  the  different  Commission 
departments  participate  regularly  at  the  Observatory’s  meetings,  including  the  working  groups 
and  the  recently  created  expert  groups.  This  ensures  in  a  structured  manner  that  the  Office’s 
activities are consistent with the Commission’s priorities. However, the Office does not always 
communicate  on  its  activities  by  linking  them  to  the  overall  context  of  the  EU  IP  policy  and 
Commission initiatives, which can lead to uncertainty among stakeholders on how the two layers 
of EU intervention coexist.  

Overall,  inconsistencies  are  avoided  and  much  of  the  Office’s  work  complements and supports 
the Commission’s IP activities. The Office has become a key partner of the departments of the 
Commission  dealing  with  counterfeiting  and  piracy  (DG  GROW,  DG  TRADE,  OLAF,  DG 
TAXUD and DG CNECT). For example, the IP pre-diagnostic services for SMEs designed and 
made available by the Commission’s department for Internal Market, Industry, Entrepreneurship 
and SMEs (DG GROW) through the EU Programme for the competitiveness of enterprises and 
SMEs  (COSME)85.  The  Office  helps  the  Commission  in  co-organising  training  courses  for  the 
experts  responsible  for  carrying  out  IP  diagnostics.  The  Office  also  actively  participates  in  the 
work  of  the  voluntary  Memoranda  of  Understanding  between  IP  right  owners  and  online 
intermediaries facilitated by the Commission to curb the online offers of counterfeits and to limit 
the benefits of IPR-infringing websites.  

The  Office  also  supports  the  Commission’s  initiatives  in  copyright,  collaborating  with  the 
Commission’s department for communications networks, content and technology (DG CNECT). 
The Office has set up a single publicly accessible online database of ‘orphan’ works, such as a 
piece  of  music  or  literature  whose  authors  or  other  right  holders  are  not  known  or  cannot  be 
located86.  The  database  records  and  provides  information  on  orphan  works  contained  in  the 
collections  of  libraries,  educational  establishments,  museums,  archives,  film  or  audio  heritage 
institutions  and  public-service  broadcasting  organisations.  The  database  allows  these  cultural 
heritage  institutions  to  use  orphan  works  under  a  copyright  exception,  in  particular  to  create 
digital copies of the works and make them available to the public. 

85  Commission  Staff  Working  Document  "Putting  intellectual  property  at  the  service  of  SMEs  to  foster 
innovation and growth" SWD(20126)373, page 4. 
86  The  setting-up  of  the  database  was  foreseen  in  Article  3(6)  of  Directive  2012/28/EU  of  the  European 
Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works (OJ EC 
No L 299 of 27.10.2012, p. 5) 

36 

 
                                                      
Furthermore, the Office is carrying out preparatory work with a view to launching a portal on out 
of commerce works87. The portal will have a publicity purpose, i.e. to inform right holders and 
the  public  at  large  about  out-of-commerce  works  or  other  subject  matter  that  may  be,  or  are 
being,  used  by  cultural  heritage  institutions.  In  addition,  the  Office  promotes  the  legal  online 
consumption of protected works (such as music and movies) through its portal Agorateka which 
helps consumers to find legal sources where such works can be found, accessed and watched or 
listened  to.  Through  its  published  FAQ,  the  Office  is  making  information  on  copyright  easily 
accessible and easily understandable, therefore helping consumers, entrepreneurs and businesses 
to avoid involuntarily infringement of IP rules. 

The Office has a key role in implementing EU-funded projects in non-EU countries. The Office 
also  supports  the  Commission  efforts  to  provide  IP  relevant  information  and  knowledge  to 
officials in EU delegations around the world, and it has published guides to IP protection in non-
EU  countries.  All  these  activities  are  carried  out  in  line  with  the  priorities  established  by  the 
Commission’s departments for Trade. 

As  already  indicated,  the Office’s  research  and data gathering  studies and reports are  regularly 
used  in  the  Commission’s  IP  policy  documents  (the  2015  Single  Market  strategy,  the  2016 
Copyright  package,  the  2016  Start-up  initiative  and  the  2017  IP  package,  etc.).  The  Office  is 
conducting  research  on  the  impact  that  the  Trade  Secrets  Directive  may  have  in  trade  secret 
litigation  in  the  EU,  and  it  has  produced  a  first  report  offering  the  baseline  scenario  of  the 
litigation landscape. 

This evaluation concludes that the different tasks entrusted to the Office under the Regulation are 
mutually  supportive  and  consistent  with  the  overall  objective  of  improving  the  fight  against 
infringements of IPR, thus improving the functioning of the Union’s and national IP systems, and 
their different building blocks (trade marks, designs, patents, copyright, geographic indications, 
etc.). Furthermore, the activities of the Office under the Regulation are aligned with the EU IP 
policy, in particular in its efforts to improve the use and protection of IPR across the EU, at the 
EU borders and internationally. 

EU added value of the Office’s Observatory 

Both the public consultation and the contractors’ study showed a clear consensus on the added 
value  of  the  Regulation  and  of  the  activities  carried  out  by  the  Office  with  the  help  of  the 
Observatory. Transferring the Observatory from the Commission to the Office enabled scaling up 
the  benefits  of  the  stakeholder  platform  that  was  initially  created  with  the  investment  of 
additional resources resulting in a wide package of tools, publications and processes that are now 
put at the disposal of public authorities, private sector stakeholders and individuals across the EU. 

According to only 9% of respondents to the public consultation, infringements of IPR could be 
addressed just as well, or even better, at national level without involving the Office. A majority 
of 60% considered that this is not the case. This majority is larger in the case of professionals and 
organisations (80%). 

In the words of one respondent from a national customs authority, “the EUIPO has a crucial role 
in coordinating all the actors involved in IPR protection. It also has the capacity and resources 
to  raise  awareness  on  the  importance  of  IP  protection,  to  publish  studies  on  the  IPR 
phenomenon,  to  monitor  new  emerging  technologies  and  how  they  can  be  exploited  to  combat 
IPR infringements. All these activities would not be possible at national level.” 

Piracy and counterfeiting have a strong international nature, and as mentioned in the contractor’s 
study the scale and complexity of IPR infringement “is too large to be dealt with by individual 

87 Out-of-commerce works are works that are protected by copyright but no longer commercially available. 
The  setting-up of the portal  was  foreseen in  Article 10 of Directive (EU) 2019/790 of the European 
Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single 
Market (OJ EC No L 130 of 17.5.2019, p. 92). 

37 

 
                                                      
Member  States.  Also,  the  cross-border  nature  of  counterfeiting  makes  action  at  the  EU  level 
particularly  useful.”  The  same  applies  entirely  to  the  fight  against  piracy  (copyright 
infringement).  As  mentioned, the bundling  of  resources in  one  organisation  creates  efficiencies 
that would not be otherwise possible. However, most of the results achieved with the creation of 
the  Observatory  and  adoption  of  the  Regulation  would  not  have  been  possible  without  EU 
intervention.  The  vast  majority  of  data  that  is  now  freely  accessible  to  policy  makers,  public 
authorities,  business,  researchers  and individuals  was  not  collected,  assessed  and  shared  before 
the  Regulation.  Without  the  Office’s  work  under  the  Regulation,  it  is  difficult  to  imagine  that 
Members States would have been able to coordinate in the same way efforts to investigate into 
the value of IP, the impacts of IP infringement for the whole of the EU, or the perception of IP by 
consumers and young people in the EU.  

Different  Member  States  would  most  likely  have  used  different  fact-finding  methodologies. 
Therefore, the data collected at national level would not necessarily be comparable and it would 
be difficult to have aggregated figures providing an EU wide picture. In other words, there would 
be fewer data of poorer quality. This is particularly important because counterfeiting and piracy 
are  global  problems  and  require  an  EU-wide  strategy,  while  enforcement  actions  are  mainly 
carried out at national level. Therefore, coordination, cooperation, exchange of information and 
common  tools  are  key  factors  to  the  success  of  the  fight  against  counterfeiting  and  piracy. 
Fragmentation of resources and the lack of a united platform to join forces and share best practice 
would  mean  that  no  common  enforcement  tools  and  databases  would  have  been  created.  Joint 
actions would have been more difficult to organise. 

To conclude, the Observatory has a strong added value in terms of coordination and networking, 
leading to an improved knowledge base that could not have been achieved at national or regional 
level.  

6.  CONCLUSIONS AND LESSONS-LEARNED 

The overall conclusion supported by the contractor study and the public consultation is that the 
Regulation  is  working  well  through  the  Office’s  and  is  achieving  the  expected  results.  The 
evaluation is positive on the five evaluation criteria; however improvements can still be made. 

The Regulation and the entrustment of new tasks to the Office have reshaped the landscape of IP 
enforcement  in  the  EU.  There  is  now  a  stable  framework,  a  network  bringing  together  experts 
from  the  public  and  private  sectors  at  national  and  EU  levels  which  is  supported  by  sufficient 
funding. This new reality enabled substantial progress in the areas where there were clear gaps 
before  the  Regulation,  such  as  in  data  and  statistics  collection,  research  and  development  of 
knowledge, knowledge and best practices sharing, training and tools to help enforcement. 

The  first  conclusion  is  that  the  Office  has  implemented  the  activities  entrusted  to  it  by  the 
Regulation  in  an  effective  manner,  as  regards  the  management  of,  and  interaction  with,  the 
network of stakeholders that form the Observatory on IP infringements, and also in carrying out 
the specific tasks and activities set out in the Regulation. 

The  operational  objective of the  EU’s initiative  under  evaluation  was to equip  the  Observatory 
with sufficient resources and infrastructure. This objective has been met. 

The Office provided the Observatory with an infrastructure that had previously been missing and 
which is supported by  sufficient budgetary means, expertise, meeting facilities, communication 
tools and other necessary resources.  

The  Office  has  successfully  widened  the  network  of  representatives  to  the  Observatory,  while 
keeping its composition balanced in view of its objectives. In the words of the contractor’s study: 
“The Observatory has created a transnational community of people and organisations involved 
in  the  fight  against  counterfeiting  and  piracy.  The  Observatory  is  (…)  highly  effective  when  it 

38 

 
comes  to  creating  possibilities  to  exchange  information  and  best  practices  amongst  various 
target groups, including enforcement authorities and public and private stakeholders”88. 

Indeed,  one  of  the  first  effects  of  implementing  the  Regulation  was  that  cooperation  in  IP 
enforcement is now greatly facilitated. Bringing together the representatives from private sectors 
and the national administrations in the different meetings that the Office organises on a regular 
basis  and  their  engagement  and  contribution  to  the  different  activities  and  projects  has  helped 
continued cooperation between all relevant actors to address counterfeiting and piracy. 

The Office has delivered on all the tasks covered by the Regulation. 

Having developed a transparent and objective methodology subject to scrutiny and peer review, 
the  Office  carries  out  regular  research  and  publication  activities.  These  activities  enable  the 
assessment,  at  both  EU  and  national  levels,  of  the  economic  importance  of  IP,  its  use  by 
businesses,  people’s  perception,  the  volume  and  impact  of  IP  infringements,  as  well  as  the 
methods and routes used by infringers.  

The  information  produced  is  considered  factual,  objective,  reliable  and  robust.  As  a  result, 
policymaking,  training  of  enforcement  officials  and  awareness  raising  are  now  anchored  to  a 
wider set of accurate data. More importantly, these studies and reports are not one-off exercises, 
condemned to obsoleteness. They are repeated regularly to identify trends, allowing authorities to 
anticipate  needs  and  plan  appropriate  responses.  The  situation  has  therefore  improved 
considerably. According to the contractor’s study, “many interviewees indicated that prior to the 
Observatory,  there  was  very  little  information  available  on  the  scale  and  severity  of  issues 
related  to  IP  infringements,  and  the  damage  such  issues  cause  to  the  European  economy. 
Moreover,  stakeholders  felt  it  was  important  for  policy  makers  to  be  informed  by  independent 
and  reliable  data  and  information  (a  point  that  was  made  in  particular  by  national 
authorities)”89. 

The  Office  has  developed  a  series  of  annual  training  events  for  officials,  promoted  awareness-
raising  actions,  and  developed  and  made  available  tools  that  are  increasingly  used  by  public 
officials and private businesses across the EU. It has also carried  out a considerable number of 
activities in support of Commission initiatives. 

As a result, the Office has become a central source of knowledge and sharing of best practice on 
IP  infringements  in  the  EU  and  internationally,  with  an  unmatched  portfolio  of  publications 
relevant  to  all  stakeholders,  from  decision  makers  to  enforcement  officials,  owners  of  IPR, 
consumer organisations, researchers, etc. The Office is well recognised as a centre of excellence 
in providing information on IP, and as a platform for knowledge sharing, not only in Europe but 
also internationally. 

The  second  conclusion  is  that  the  objectives  set  out  in  Regulation  are  still  relevant  today  and 
probably more so than ever. Due to the growing value of intangible assets in today’s economy 
IPR  are  increasingly  important  for  the  performance  of  companies  and  the  economies  in  which 
they operate. The share of intangible assets in companies’ overall value has risen from 17% in 
1975,  over  68%  in  1995,  to  84%  in  2015.  Not  surprisingly,  there  is  an  increase  in  criminal 
activities looking for profits based on IP infringements. Imports of counterfeits into the EU have 
been increasing and are now estimated at €121 billion, or 6.8% of total EU imports. 

Both the contractor and the public consultation showed a broad consensus on the Office’s tasks 
under the Regulation.  

The third conclusion is that the objectives set out in the Regulation and the activities conferred 
to  the  Office  under  it,  are  mutually  supportive  and  coherent  with  the  EU  overall  policies  of 
facilitating the use and protection of IPR within the EU Member States, at the EU borders and 

88 Technopolis, Evaluation of the application of Regulation 386/2012, 2017, p.55 
89 Technopolis, Evaluation of the application of Regulation 386/2012, 2017, p.43. 

39 

 
                                                      
internationally.  Promoting  and  facilitating  the  use  of  IP  and  improving  conditions  to  combat 
counterfeits  and  piracy  helps  to  maintain  a  business  environment  that  rewards  creativity  and 
innovation.  The  Office’s  tasks  are  therefore  in  line  with  the  EU  objectives  of  creating  jobs, 
growth  and  investment,  reinforcing  the  single  market  and  promoting  a  fair  and  rules  based 
trading system, which looks after consumers, workers and the environment. 

The fourth conclusion is that the Office’s activities under the Regulation have clear added value. 
According to the contractor’s study,  “the scale and complexity of the counterfeiting and piracy 
challenge is too large to be dealt with by individual Member States. Also, the cross-border nature 
of the issue of counterfeiting yields action at EU level particularly useful. The Regulation bundles 
resources, capacity and knowledge and expertise into a single organisation. This leads to lower 
administrative  costs  and  burdens.  Such  efficiency  could  not  be  achieved  at  national  level.  The 
Observatory  has  a  strong  added  value  in  terms  of  coordination  and  networking,  leading  to  an 
enhanced knowledge base that could not be established at national  or regional level. The data 
and studies produced by the Observatory represent a useful means for policy makers at EU and 
national level to understand the scale and consequences of counterfeiting and to use as evidence 
for  policymaking  purposes”90.  These findings  were  further  confirmed  by  the  feedback  received 
through  the  public  consultation  which  showed  a  clear  consensus  on  the  added  value  of  the 
Regulation and of the Office’s activities with the help of the Observatory. 

The fifth conclusion of the evaluation is that the Office carried out its activities in an efficient 
manner. As intended by the Commission’s proposal leading to the adoption of the Regulation, the 
results  mentioned  above  were  achieved  without  costs  to  the  general  EU  budget.  While  it  has 
spent  an  average  of  EUR11 million  per  year  in  the  activities  covered  by  the  Regulation,  the 
Office  has  been  able  to  independently  fund  all  its  activities,  namely,  through  the  fees  that  it 
charges as a trade mark and designs register. Based on the contractor’s study, the Office’s data 
and the results of the public consultation, this evaluation concludes that the Office used its human 
and financial resources efficiently to deliver on the tasks set in the Regulation. 

The  growing  number  of  projects  and  activities  carried  out  by  the  Office  is  a  reflection  of  its 
ambition  and  the  dynamics  created  by  the  close  cooperation  between  a  motivated  team  and  a 
valuable  network  of  experts  and  stakeholders.  One  of  the  lessons-learned  is  precisely  that  the 
network of stakeholders forming the Observatory is its most valuable asset. The Observatory, as a 
platform where the experience and expertise of stakeholders from the public and private sectors 
and civil society are brought together to step up the fight against the counterfeiting and piracy is 
as  key  element  of  the  Regulation  and  it  is  vital  in  achieving  its  objectives.  The  Office  should 
therefore continue to promote stakeholder engagement.  

The  evaluation  has  shown  that  certain  lessons  can  be  learned  from  the  experience  gained 
through the application of the Regulation.  

First of all, although the Office keeps good record of its activities and deliverables, it should have 
in  place  systems  to  better  monitor  the  impact  of  its  activities.  This  is  particularly  important  as 
regards  the  actions  and  campaigns  aimed  at  raising  public  awareness.  The  Office  has  been 
improving  its  data  in  that  respect,  in  comparison  to  the  first  years  of  the  functioning  of  the 
Regulation. The Office’s efforts should be extended to all areas of activity under the Regulation 
and the monitoring should be complemented with cost-benefit analysis and efficiency indicators. 
A better view of how the different actions are contributing to the objectives of the Regulation is 
useful for setting of priorities and will be helpful in future evaluations. Furthermore, the Office 
should make sure that its annual reports provide the clear information on the work of the Office 
under  the  Regulation.  In  2019  and  2020  Office  published  an  informative  stand-alone  annual 
activity report on its activities under the Regulation in the precedent years. However, this report 
is not subject to the approval of the Management Board. 

90 Technopolis, Evaluation of the application of Regulation 386/2012, 2017, p.87. 

40 

 
                                                      
Second,  despite  the  overall  recognition  that  the  Office  has  succeed  in  maintaining  a  good 
collaboration  with  stakeholders,  Members  of  the  Observatory  network  have  called  for  earlier 
involvement of stakeholders in preparing the Office’s work programmes and in launching follow-
up projects, in particular for the Office’s activities in non-EU countries. The work of the Office in 
international cooperation on matters relating to enforcement of IPR should be subject to proper 
consultation of representatives from the Member States and benefit from stakeholders input. The 
results of the publication suggest that the Office could communicate better in this area. 

Third, the Office should, when communicating on its projects and activities, refer to the relevant 
Commission IP policies and initiatives. This has not been always the case, which can give rise to 
confusion  on  how  the  projects  implemented  by  the  Office  tie  in  with  the  Commission’s  IP 
policies. Therefore, the Office should make sure that the alignment of the Office’s projects with 
EU  policies  should  be  clearly  communicated.  While  there  are  a  number  of  areas  where  this  is 
relevant (support to the use of IP by SMEs, the role of, and cooperation with, intermediaries on 
IPR enforcement and prevention of IP infringements) such efforts seem particularly important in 
the area of International cooperation. 

Fourth,  the  evaluation  has  concluded  that  collecting  data  from  national  authorities  is  at  times 
complicated.  Although  some  progress  has  been  made,  the  Office  is  encouraged  to  continue 
overcoming  the  existing  difficulties  in  obtaining  data  from  Member  States.  At  the  same  time, 
Member States should step up efforts to improve their contribution to the Office’s work in this 
area. 

Fifth, the Office has been quite successful in embracing new tasks and responsibilities but in a 
few  cases  planned  projects  have  suffered  delays.  Such  activities  should  benefit  from  sufficient 
resources and support to avoid that certain planned projects succumb to shifting priorities. The 
Office should consider creating mechanisms to ensure that all agreed projects receive sufficient 
resources and are properly prioritised to ensure that they are delivered on time. 

Sixth,  the  Office’s  studies  and  reports  are  of  high  quality  and  internationally  recognised  as 
relevant and objective, and should be sufficiently resourced. During the first years of the Office’s 
activity  under  the  Regulation,  these  studies  did  not  contain  clear  publishing  information  –  as 
mentioned  in  the  contractor’s  study.  This  has  been  corrected.  However,  there  is  still  room  for 
improvement, for example in the way in which studies are displayed and made available online, 
as it is not always easy to retrieve them on the Observatory’s website.  

This  evaluation  concludes  that  the  Regulation  has  met  its  objectives.  The  combination  of  the 
Regulation, the work put forward by the Office and the functioning of a fully-fledged and highly 
active Observatory, substantially changed the landscape of IP enforcement in the EU. The Office 
was able to develop links with the Member States authorities and all the relevant stakeholders. 
Furthermore, it has succeeded in working with the different departments of the Commission as 
well as with other EU institutions and bodies, therefore ensuring that its activities are consistent 
with  EU  policy  objectives.  The  Office  is  an  integral  part  of  the  Commission’s  response  to 
counterfeiting  and  piracy,  and  it  plays  an  important  role  in  supporting  the  implementation  of 
Commission  initiatives.  While  some  adjustments  can  be  made  in  specific  areas,  the  Office  has 
met expectations.  

There  is  no  system  capable  of  measuring  the  full  impact  of  the  Office’s  activities  in  the 
enforcement  of  IPR.  Despite  all  the  efforts,  IP  infringements  are  still  on  the  rise.  There  are 
numerous factors influencing the volume of IP infringing products, and there is no silver bullet to 
put an end to it. However, today, thanks to the Regulation, and the work developed by the Office 
with the support of those involved in the Observatory, authorities and stakeholders know  more 
about what those factors are, how IP infringers operate, the means and methods they use, what 
routes they take and how much damage they cause. The EU, its Member States and businesses 
are  now  much  better  equipped  to  curb  counterfeiting  and  piracy  than  they  were  before  the 
adoption of the Regulation. 

41 

 
 
42 

 
 
 
 
ANNEX 1: PROCEDURAL INFORMATION 

Lead DG, Decide Planning/Commission Work Programme references 

Lead  DG:  Directorate-General  for  Internal  Market,  Industry,  Entrepreneurship  and  SMEs  (DG 
GROW); Unit F3: Intellectual property and Fight against Counterfeiting 

Reference in e-Decide: 2017/GROW/016 

Organisation and timing 

On  10 February 2016,  DG  GROW  invited  the  relevant  DGs  to  participate  in  the  Inter-Service 
Steering  Group  (ISSG).  The  ISSG  consisted  of  SG,  SJ,  TAXUD,  TRADE,  HOME,  CNECT, 
JUST, JRC and OLAF. 

On 23 February 2016, ISSG met for the first time to discuss the roadmap. On 8 March 2016, DG 
GROW consulted the Office on the  draft roadmap. The roadmap was on 28/04/2016, under the 
title  ‘Evaluation  of  Regulation  No  386/2012  –  European  Observatory  on  Infringements  of 
Intellectual Property.’ 

On  7 July 2016,  the  ISSG  met  to  discuss  the  terms  of  reference  of  the  external  study.  On 
27 July 2016, DG GROW requested the contractor, Technopolis, to carry out a study evaluating 
the  application  of  Regulation  386/2012.  The  request  was  made  under  the  framework  contract 
ENTR/172/PP2012/FC – LOT 4. On 22 November 2016 DG GROW and Technopolis signed the 
contract for the external study.  

On 5 May 2017, the ISSG met to discuss the progress report by the contractor. On 14 June 2017, 
DG GROW consulted the ISSG on the draft of the final report submitted by the contractor. On 
21 August 2017, DG GROW consulted the ISSG on the second draft of the final report submitted 
by the contractor. On 23 August 2017, DG GROW consulted the Office on the second draft of 
the final report submitted by the contractor. On 20 October 2017, DG GROW consulted the ISSG 
on the final set of comments on the third draft submitted by the contractor. On 27 October 2017, 
DG  GROW  accepted  the  external  study.  On  5 March 2018,  DG  GROW  published  the  external 
study on the webpage dedicated to the Observatory and its evaluation.  

On  16 April 2018,  DG  GROW  consulted  the  ISSG  on  the  questionnaire  of  the  public 
consultation.  The  public  consultation  took  place  between  3 July 2018  and  5 October 2018.  On 
3 December 2018, DG GROW published the results of the public consultation and provided the 
ISSG with a first assessment of the results. 

On  2 July 2019,  DG  GROW  consulted  the  ISGG  on  the  first  draft  of  the  Staff  Working 
Document on the evaluation.  

On 27 July 2109, DG GROW consulted the Office on the first draft of the evaluation report. 

On  8 May 2020,  DG  GROW  consulted the  ISGG  and  the  Office  on the draft  of  Commission’s 
evaluation report and on the second draft of the accompanying Staff Working Document on the 
evaluation. 

On 25 May 2020, the ISSG  met to discuss the two drafts. The ISSG concluded  that apart from 
some  comments  that  would  be  sent  by  26 May 2020,  the  two  documents  were  ready  for  inter-
service consultation. 

Evidence, sources and quality 

The  Commission  evaluation  is  based  on  two  main  building  blocks,  complemented  by  further 
research: a study from a contractor and a public consultation. 

43 

 
 
 
The  study  was  commissioned  in  November  2016  to  Technopolis.  The  methodology  used  in  its 
preparation  included  desk  research  and  interviews.  A  total  of  113  interviews  were  carried  out 
mainly with stakeholders participating in the work of the Observatory, but also with members of 
the  Office’s  Observatory  team.  The  contractor  contacted  officials  from  national  customs 
authorities that are not involved in the work of the Observatory, but who are in charge on a daily 
basis of IPR enforcement at the EU borders. The contractor carried out an online survey, shared 
through  the  Members  of  the  Observatory  and  their  constituencies. The  study  was  concluded  in 
August 2017 and it is available online91. 

The contractor carried out the study on the basis on the following evaluation questions: 

Criteria  

Evaluation questions  

Relevance  

appropriate (relevant)?  

development of the scale and different types and sources of IP infringing activity?  

ll correspond to current needs/issues given the 

Effectiveness  

contributed to enhance the proper enforcement of IPR in the European Union?  

dertaken  by  the  Observatory 
impacted  the  level  of  IPR  infringements  in  the  EU  in  recent  years?  Where 
expectations have not been met, what factors have hindered their achievement?  

the 
implementation  of  Regulation  386/2012  more  or  less  effective  than  others?  If  so, 
what lessons can be drawn from this?  

Observatory or to the activities of its working groups?  

tasks given to it by the Regulation?  

Efficiency  

costs incurred to EUIPO, the public authorities and the other 

stakeholders to implement the Regulation?  

that derive from the Regulation?  

benefits for beneficiaries, stakeholders and civil society 

achieved by the Observatory (value for money)?  

justified and proportionate, given the benefits 

aspects of the implementation of the Regulation /functioning of the 
Observatory  are  the  most  efficient  or  inefficient?  What  factors  influenced  the 
efficiency of the results achieved by the Observatory?  

91 Technopolis, 

Evaluation 

of 

the 

application 

of 

Regulation 

386/2012, 

2017 

https://ec.europa.eu/docsroom/documents/28221 

44 

 
 
 
 
                                                      
Utility  

nt do the activities and results of the Observatory satisfy the 

needs and expectations of different types of stakeholders?  

geographical location or the type of IPR, and if so, to what extent and why?  

Coherence  

Regulation in coherence with each other?  

Regulation coherent with other EU objectives and actions?  

Regulation coherent with other international objectives and actions?  

Regulation coherent with national policies and actions?  

Complementarity  

in the field of IPR?  

the Regulation support EU and international actions 

Added value  

achieved at the national level (i.e. principle of subsidiarity)?  

require action at EU level?  

stopping the Observatory’s activities? 

(a) Desk research 

The  contractor  reviewed  all  the  Office’s  2013  to  2017  work  programmes,  the  2014-2018 
multiannual plan and the 2012 to 2015 annual reports. In addition, the contractor consulted the 
Office’s studies and reports published under the Regulation, as well as the minutes of meetings, 
summaries of events, satisfaction surveys, project briefs on various projects and tool, and further 
documentation indicated in Section 9.3.1 of the final report delivered by the contractor.  

The evaluation took also account of the Office’s 2018 and 2019 work programmes and the 2016, 
2017 and 2018 annual reports. 

 (b) Interviews, surveys and public consultation 

The contractor carried the following interviews: 

Types of stakeholders  

Number of interviews 

National public representatives  

Private industry  

Civil society organisations  

Others  

Observers/international organisations  

21 

51 

6 

7 

9 

45 

 
 
 
DGs  

MEPs  

Observatory staff  

Total  

7 

2 

10 

113 

Another  important  means  of  data  collection  was  the  public  consultation,  which  ran  from 
3 July 2018 to 5 October 2018. The public consultation was announced on Your Voice in Europe, 
and  it  was  carried  out  through  an  online  questionnaire  made  available  in  the  24  official  EU 
languages,  using  the  EU’s  EUSurvey  consultation  tool.  The  public  consultation  received  98 
contributions.  The  synopsis  report  of  the  public  consultation  provides  information  on  the 
participation to the consultation and summarises the main results (Annex 2). The results of the 
consultation  are assessed  in  that  report  with reference  to the  various  categories  of  respondents, 
such as individuals, professionals and organisations (that is, legal persons or bodies), Members of 
the Observatory (a sub-category of the latter). 

(e) Workshop 

On the 19 June of 2017, the contractor presented the preliminary findings of their study on the 
evaluation to the ISSG members.  

46 

 
 
 
 
 
ANNEX 2: STAKEHOLDER CONSULTATION – SYNOPSIS REPORT 

Introduction 

This  synopsis  report  summaries  the  public  consultation  accompanying  the  preparation  of  the 
report of the Commission evaluating the application of Regulation 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 Rights92. 

The purpose and scope of the consultation 

The  Office  is  an  agency  of  the  European  Union  (EU)  created  by  Council  Regulation  (EC)  No 
40/9493. The Office administers the EU trade mark and the Community design systems.  

In  2012,  the  Office  was  given  an  additional  set  of  tasks.  These  tasks  were  given  to  the  Office 
under Regulation No 386/2012 (‘the Regulation’) and generally aim at facilitating and supporting 
the activities of national authorities, the private sector and the EU institutions in the fight against 
infringements of Intellectual Property (IP). The Regulation also requires that in carrying out such 
tasks, the Office is to organise, administer and support the gathering  of experts, authorities and 
stakeholders assembled under the name ‘European Observatory on Infringements of Intellectual 
Property Rights’ (‘the Observatory’). 

The purpose of the public consultation was to collect the views of individuals and stakeholders 
on: 

  the relevance, coherence and added value of the Regulation; 

  the  effectiveness  and  efficiency  of  the  activities  put  in  place  by  the  Office  in  fulfilling  the 

tasks under the Regulation. 

The  public  consultation  looked  at  the  manner  in  which  the  Office  has  set  up  and  managed  the 
Observatory,  and  the  extent  to  which  the  Members  of  the  Observatory  are  engaged  in,  and 
contribute to, the pursuit of the objectives under the Regulation. 

The public consultation was announced on Your Voice in Europe, and it was carried out through 
an online questionnaire made available in the 24 official EU languages, using the EU’s EUSurvey 
consultation tool. It ran from 3 July 2018 to 5 October 2018. The public consultation received 98 
contributions.  The  views  of  the  respondents  cannot  be  interpreted  as  being  representative  in  a 
statistical sense. 

Who participated in the public consultation? 

The Commission received 98 replies to the consultation, including 52 from individuals replying 
in  their  own  name  and  not  in  any  particular  professional  capacity.  The  other  46  respondents 
replied  in  their  professional  capacity,  either  in  their  own  name  or  in  representation  of  an 
organisation (‘Professionals and organisations’). As explained below, this group contains a sub-
group  consisting  of  organisations  that  are  Members  of  the  Observatory  (18  respondents). 
Therefore,  the  other  28  respondents  in  the  category  ‘Professionals  and  organisations’  are  not 
Members of the Observatory. 

92 OJ EC No L 129 of 16.5.2012, p. 1. 
93  Initially  named  the  Office  for  Harmonization  in  the  Internal  Market  (Trade  Marks  and  Designs),  the 

EUIPO has its seat in Alicante, Spain. 

47 

 
 
                                                      
Individuals 

The 52 individuals responding to the consultation reside in 15 different Member States. The most 
represented  Member  States  were  Germany  (25%),  Spain  (13%),  Belgium  (11%),  Austria  (7%) 
and Portugal (7%). 

Respondents  in  this  group  had  different  levels  of  familiarity  with  the  Office  and  its  activities: 
42% had never heard about it before; 34% know, more or less, what the Office does and 13% are 
well aware of what it does. 

Professionals and organisations 

This category covers 46 respondents from a wide background, such as associations of holders of 
IPR  (11),  business  organisations  (7),  public  authorities  (6),  businesses  (5),  self-employed 
professionals and consultants (4), consultancy or law firms, consumer or other non-governmental 
organisations (3), organisations of professionals in IP (3), and one chamber of commerce. 

These  respondents  have  their  seat  in  15  Member  States  –  including  Belgium  (11),  France  (5), 
Czechia  (5)  and  Italy  (5)  –  and  three  are  seated  outside  the  EU.  However,  some  of  these 
respondents are European or International associations representing members across, and in some 
cases  beyond  the  EU.  For  example,  BusinessEurope  has  its  headquarters  in  Brussels  and  it 
represents 36 national business federations spread over 35 European countries94. 

Public  authorities  responding  to  the  consultation  consisted  of  departments  or  public  agencies 
concerned with IP (such as the Danish Patent and Trademark Office), or having a specific role in 
the enforcement of IPR, such as the Customs Department of Malta. 

Most respondents in the category ‘Professionals and organisations’ (73%) are well aware of the 
Office’s and its activities, and 17% know more or less, what the Office does. A minority (6%) 
had never heard about it.  

Members of the Observatory 

Under the ‘Professionals and organisations’ category, there were 18 respondents that form part of 
the network of stakeholders (from the public administration or private sector) assembled by the 
Office under the umbrella of the Observatory (see ‘Observatory’ in the pie chart below). These 
are  mainly  representatives  from  bodies  and  organisations  with  an  interest  in,  or  concerned  by, 
enforcement  of  IPR.  The  Members  of  the  Observatory  are  regularly  invited  to  participate  in 
meetings, events and projects organised by the Office under the Regulation. As an example, they 
are consulted on the drafts of work programmes and some of them participate in working groups 
following specific projects developed by the Office. 

The  Observatory,  as  a  network  of  stakeholders,  is  envisaged  in  the  Regulation,  and  the  Office 
should  at  least  once  a  year  “invite  to  meetings  of  the  Observatory  representatives  from  public 
administrations,  bodies  and  organisations  in  the  Member  States  dealing  with  intellectual 
property rights and representatives from the private sector, for the purpose of their participation 
in the Office’s work under this Regulation”95. 

The remaining respondents in the category ‘Professionals and organisations’ are not Members of 
the Observatory (see ‘Others’ in the pie chart below). 

94 BusinessEurope is registered in the EU’s transparency Register under No 3978240953-79. 
95  According  to  Article  4(2)  of  the  Regulation  “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 economic sectors, including the creative industries, most concerned by or most 
experienced  in  the  fight  against  infringements  of  intellectual  property  rights”  and  “Consumer 
organisations,  small  and  medium-sized  enterprises,  authors  and  other  creators  shall  be  properly 
represented”. 

48 

 
 
                                                      
98 Respondents 

52 Citizens 
by country of residence 

Observ
atory 
18% 

Others 
28% 

Citizens 
54% 

BE 
10% 

ES 
11% 

PT 
7% 

AT 
7% 

DE 
21% 

Others 
44% 

Citizens

Others

Observatory

Others

DE

ES

BE

AT

PT

Relevance of the Office’s mission, tasks and activities 

The Office’s mission on IP enforcement 

Most  respondents  (66%)  considered  that  the  Office's  overall  mission  of  facilitating  and 
supporting the activities of national authorities, the private sector and the EU institutions in the 
fight  against  infringements  of  the  IPR  is  important  and  relevant.  Some  respondents  (16%) 
considered that the mission was never, or is no longer relevant or important. The approval rate is 
substantially  higher  among  professionals  and  organisations  (95%)  than  with  individuals,  where 
only  40%  find  the  mission  important.  Almost  a  third  of  the  individuals  responding  (30%) 
considered that the Office’s mission to be irrelevant. These respondents do not see any particular 
benefit  in  protecting  IPR  in  general  or  copyright  in  particular,  as  expressed  in  their  additional 
comments to the question. 

The Office’s tasks 

The public consultation also focused on the Office’s different tasks under the Regulation. Article 
2 of the Regulation distinguishes between the tasks assigned to the Office and the activities that it 
must carry out in fulfilling such tasks. 

All  tasks  were  considered  as  important  by  respondents  with  an  approval  rate  between  54% 
(research  on  technical tools  to  prevent  and tackle  infringements  of  IPR,  including  tracking  and 
tracing  systems  which  help  to  distinguish  genuine  products  from  counterfeit  ones)  and  77% 
(research on the economic and cultural value of IP for citizens, businesses and society). 

Again, the approval rates were higher in the professionals and organisations category (from 73% 
to 95%). 

49 

 
 
 
Some respondents (19%) considered that there were contradictions between the tasks mentioned 
above.  Most  comments  received  referred  to  the  fact  that  these  tasks  assumed  that  IP  benefits 
authors, innovators and the society at large, an assertion that they dispute. Some indicated that it 
is  not coherent to  ask  the Office to research  on  the value  of  IP  and  at  the  same  time  carry  out 
tasks relating to strengthening IP enforcement. However, most respondents (56%)  – 71% in the 
case of professionals and organisations considered that there were no contradictions between the 
tasks. 

Most  respondents  (69%)  did  not  have  an  opinion,  or  did  not  reply  to  the  question,  on  whether 
there are gaps or contradictions between the EU’s overall objectives and activities, including in 
IP, and the Office’s tasks and activities in the context of its work with the Observatory and the 
fight against infringements of IP. A minority (9%) considered the Office's tasks to be inconsistent 
with  the  EU’s  overall  objectives  and  activities.  Around  13%  of  participants  replied  “some  of 
EUIPO's  tasks  and  activities  are  not  totally  aligned  with  the  EU's  overall  objectives  and 
activities”96. One individual pointed out that the EU wants to support and promote culture while 
IP  is  blocking  it  by  protecting  big  media  companies.  Another  commented  that  the  EU  should 
legislate in favour of consumers and not industry. 

96  Due  to  a  flaw  of  the  online  questionnaire  respondents  were  not  able  indicate  “no”  as  a  reply,  and 
therefore  some  of  the  respondents  may  have  replied  “no  opinion”  instead.  Some  others  ticked  “Some  of 
EUIPO's  tasks  and  activities  are  not  totally  aligned  with  the  EU's  overall  objectives  and  activities”  as  a 
replacement for “no”. This was the case at least of UNIFAB and AIM who provided additional comments 
to  clarify  that  they  see  no  contradictions  between  the  two  sets  of  objectives.  As  a  consequence,  the 
percentage of respondents who find that some Office’s tasks are not totally aligned with the EU’s overall 
objectives  is  11%  instead  of  13%.  AIM  is  an  organisation  representing  national  brand  association  in  21 
European  countries,  and  it  is  registered  in  the  EU’s  transparency  Register  under  No  1074382679-01. 
UNIFAB is a French association of right holders promoting the international protection of  IP. UNIFAB is 
registered in the EU’s transparency Register under No 527831213232-14. 

50 

 
 
 
                                                      
The questionnaire also sought to unveil current gaps in the Office’s tasks. According to 31% of 
the respondents, the Office should receive additional tasks, whereas 39% did not see the need for 
it. 

Some stakeholders stated the Office should be given the task of facilitating the exchange of data 
among  national  law  enforcement  authorities  across  the  EU,  at  EU  level  and  certain  non-EU 
countries97.  Some  of  the  suggested  new  tasks  relate  to  supporting  small  business,  such  as  the 
development of a user-friendly website or an interface targeted at guiding start-up entrepreneurs 
on  how  to  use  IP  without  the  need  of  hiring  experts  in  the  field.  Some  respondents  suggested 
activities that the Office is already carrying98, and most of the suggested additional tasks concern 
specific studies and projects that could be considered as being covered by the broader tasks and 
activities already provided for in the Regulation. That is the case with: 

  gathering  information  on  the  Internet  Corporation  for  Assigned  Names  and 
Numbers  (ICANN)  “given  the  links  between  domain  names  on  the  one  hand  and 
counterfeiting  and  digital  piracy  on  the  other”99,  which  is  potentially  covered  by  the 
activity  of  collecting,  analysing  and  disseminating  relevant  objective,  comparable  and 
reliable data regarding infringements of IPR - Article 2(2)(b); 

  developing  tools  to  better  target  consignments  (sea  and  rail)  before  they  enter  into  the 
EU100;  which  could  be  covered  by  the  activity  of  working  with  Member  States’ 
authorities with a view to developing and promoting techniques, skills and tools relating 
to the enforcement of IPR - Article 2(2)(l); 
looking  at  the  remuneration  mechanisms  for  authors  in  the  different  sectors101  which 
could  be  seen  as  a  form  of  collecting,  analysing  and  disseminating  data  regarding  the 
economic  value  of  IP  and  its  contribution  to  economic  growth,  welfare,  innovation, 
creativity - Article 2(2)(c). 

 

A  couple  of  respondents  suggest  that  the  Office  should  evaluate  the  negative  consequences  of 
enforcing IPR and the abuse of the IPR. One of them, speaking as a small business, explains the 
idea further: 

“It’s very risky for us to sue large corporations with several times more lawyers than we 
have employees in total. Stronger IP enforcement regulations won't help in this regard. 
Large  corporations  seem  to  abuse  the  IP  enforcement  system  (patents in  particular)  to 
unfairly compete against smaller businesses. They file lots of trivial patents that would 
not  hold  up  in  court  if ever  actually  changed [challenged,  but  are still  granted  by  the 
European Patent Office and presumed valid. As a small company we don't have enough 
money  to  challenge  the  validity  of  a  patent  in  court;  instead  we  must  do  everything 
possible to avoid ever being sued. This has very chilling effects on what we do.” 

The Office’s activities 

The Regulation also lists a number of activities that the Office should carry out in fulfilling the 
above-mentioned tasks102. 

97 AIM (the European Brands Association) and International Chamber of Commerce (ICC) 
98 That is the case of at the request for “easy-to-use compilation database of jurisprudence”. The Office is 
developing a case-law database relating to enforcement of IPR. 
99 Sports Rights Owners Coalition (SROC). 
100 European Brands Association (AIM) and Business Action to Stop Counterfeiting and Piracy (BASCAP) 
101 Société Suisse des Auteurs (SSA) 
102 Article 2(2) of the Regulation. 

51 

 
                                                      
The  approval  rate103  ranges  between  58%  and  81%.  Once  again,  the  approval  rates  are  higher 
within professionals and organisations category (from 67% to 91%). 

Some respondents were not entirely convinced of the merits of mandating the Office to identify 
and promote technical tools for professionals and benchmark techniques (including tracking and 
tracing systems that help distinguishing genuine products from counterfeit): 

  According  to  the  European  Brands  Association  (AIM),  the  Office  should  not  be  asked  to 
“promote technical tools for professionals and benchmark techniques,” which by default are 
competing with commercial offers. AIM did not find it problematic for the Office to monitor 
emerging  technologies,  but  it  is  up  to  each  IP  right  holder  to  choose  which  one  is 
“appropriate for its own product and value chain.” For AIM ‘tracking and tracing systems’ 
involve  sensitive  commercial information and  cannot  be  standardised  or  mandated  by  an  IP 
office.  

  Union  des  Fabricants  (UNIFAB)  considered  it  useful  that  the  Office  monitors  and  shares 
information  on  technical  tools  including  track  and  tracing  systems,  but  underlined  that  it 
should refrain from promoting a particular solution. 

  Some other respondents, mainly individuals expressed concerns about the possibility that such 

tools could imply surveillance, censorship or the compromise of data protection. 

Fulfilling the new tasks, effectiveness of the office 

Taking up the job 

With the adoption of the Regulation, one of the first challenges faced by the Office was to build 
up a team and put in place the resources needed to ensure the fulfilment of its new mandate. 

In  this  respect,  half  of  the  respondents  that  are  Members  of  the  Observatory  agreed  with  the 
statement  “the  EUIPO  is  well  equipped  to  carry  out  its  tasks  and  activities,  in  terms  of 
independency, funding, staff, expertise, IT and meeting capacities”104. An additional 27% agreed 

103  Rate  of  approval  being  the  percentage  of  respondents  that  consider  that  the  Office  carries  out  a 

particular activity satisfactorily or very well 

104 Question 110 

52 

 
 
                                                      
in general but found that improvements could be made. The additional comments received from 
the respondents on possible improvements were focused on what in their view the Office should 
be  doing  and  how  (such  as  improving  its  website  or  increasing  the  use  of  video  conference 
meetings) rather than on the resources, equipment and expertise allocated to fulfilling the tasks or 
the Office’s ability to be independent or impartial in its publications and activities. Overall, 77% 
of  the  Members  of  the  Observatory  considered  that  the  Office  is  well  equipped  and  only  a 
minority of 5% disagreed. 

Most  individuals  (69%)  did  not  reply  or  did  not  have  an  opinion,  but  19%  shared  the  view 
expressed by the most Members of the Observatory. 

The Office’s activities 

The respondents were also asked for feedback on how well the Office has been carrying out each 
of  the  specific  activities  under  the  Regulation,  and  which  –  as  seen  above  –  most  of  the 
respondents saw as being important. 

Most individuals had no opinion on the Office’s effectiveness (between 53% and 67% depending 
of the specific activity at stake).  

A significant part of those who expressed an opinion disliked the manner in which the Office has 
been  carrying  out  its  activities.  For  example,  32  %  considered  that  the  Office’s  activity  on 
publications, events and projects to raise public awareness as either poor or very bad and one in 
four  took  the  same  view  about  the  Office’s  ability  to  develop  clear  methodologies  for  the 
collection and reporting data on infringement of IPR. 

This is in sharp contrast with the feedback provided by the respondents that are Members of the 
Observatory: 88% considered that the Office is doing a good job in raising public awareness and 
83%  had  the  same  opinion  on  the  Office’s  development  of  methodologies  for  collecting  and 
reporting on IP infringements. 

In  fact,  the  publication  of  reports  and  surveys  on  the  contribution  of  IP,  and  the  impact  of 
infringements of IPR is one activity that has almost unanimous appreciation among Members of 
the Observatory. Some 94% of the respondents in this category (and 69% of the broader category 
of  professionals  and  representatives  from  organisations)  considered  that  the  Office  has  been 
carrying out this activity well or very well. 

53 

 
 
International dimension: cooperation with non-EU countries 

Cooperation with IP offices from non-EU countries is the activity with relatively fewest positive 
responses among Members of the Observatory. While 77% of respondents in this category find it 
important for the Office cooperates with non-EU countries on matters related to the enforcement 
of IP, only 33% had a positive view of the manner in which the Office has been developing this 
activity.  
  The  International  Trademark  Association  (INTA)105  considered  that  IP  stakeholders  would 
“benefit from a road map of the EUIPO’s IPR strategy outside of the EU.” INTA considered 
for  example,  that  the  extent  to  which  the  Office  participates  in  the  funding  of  the  IP  Key 
programmes is not clear106, and it called for more information and a better cooperation with 
private sector associations.  

  The  European  Brands  Association  (AIM)  also  considered  that  involvement  of  holders  of 

IPR in the international activities of the Office could be improved.  

  According to a representative from a national intellectual property office, “There is a lack of 
transparency regarding EUIPO work in third countries. More efforts should be made to work 
in  partnership  with  Member  States,  a  number  of  which  have  their  own  IP  attachés  and 
programmes of work with third countries.”  

Most stakeholders, however, did not express an opinion on this matter (55%), and the ones that 
provided positive feedback (33%) far outweigh those who stated that the Office performs poorly 
in this area (11%).  

Tools and IP enforcement 

Most respondents that are Members of the Observatory (55%) appreciated the work done by the 
Office  in  identifying  and  promoting  of  technical  tools  for  professionals  and  benchmark 
techniques, including tracking and tracing systems that help to distinguish genuine products from 
counterfeit goods.  

When it came to a different set of tools, namely those that the Office has developed to facilitate 
the exchange of information between public authorities, and between private sector stakeholders 
and public authorities, the feedback was also mainly positive. The approval rate however, varies 
significantly depending of the tool in question. The main tools developed by the Office are EDB, 
ACIST and ACRIS, each of them serving different purposes, users and functions. 

ACRIS, created by the Office in cooperation with the department of the Commission for trade, is 

105  INTA  is  an  association  of  brand  owners  and  IP  professionals  covering  7200  organisation  in  191 

countries. It is registered in the EU’s transparency Register under No 10141574843-32. 

106 IP Key programmes are the  EU’s financial vehicles  for cooperation  with  China, South East  Asia and 

Latin America in the area of IP - https://ipkey.eu/en/china/about-ip-key 

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an  application  for  collecting  testimonies  from  EU  companies  affected  by  IP  infringements  in 
countries  outside  the  EU  and  information  on  the  follow-up  of  these  cases  by  local  authorities. 
ACRIS  is  the  tool  that  received  the  least  positive  replies  among  stakeholders.  However,  most 
stakeholders  did  not  provide  an  opinion  on  the  tool.  Only  6%  of  the  professionals  and 
organisations and 11% of the Members of the Observatory considered that the tool has little use. 
No stakeholders have called for the discontinuation of ACRIS and 33% see ACRIS as a useful or 
very useful tool. 

ACIST,  a  database  gathering  statistics  on  detentions  of  articles  suspected  of  infringing  IPR  is 
considered  useful  by  44%  of  the  Members  of  the  Observatory.  No  other  respondents  in  this 
category replied to this question.  

EDB allows right holders to upload information on their IPR along with contact information and 
product details, making it easier for authorities to identify counterfeits and take action. EDB is 
the Office’s tool that gathered the most positive feedback from the Members of the Observatory - 
7 out of 10 found it useful, with the remaining Members of the Observatory not expressing an 
opinion. 

The Observatory as a network of stakeholders 

According  to  Recital  21  of  the  Regulation,  to  fulfil  its  tasks  in  the  most  efficient  manner,  the 
Office  “should  consult  and  cooperate  with  other  authorities  at  national,  European  and,  where 
appropriate,  international  levels,  create  synergies  with  the  activities  carried  out  by  such 
authorities  and  avoid  any  duplication  of  measures.”  Moreover,  under  Recital  23  of  the 
Regulation  “With  regard  to  representatives  of  the  private  sector,  the  Office  should,  when 
assembling the Observatory in the context of its activities, involve a representative selection of 
the  economic  sectors  —  including  the  creative  industries  —  most  concerned  by  or  most 
experienced in the fight against infringements of IP rights, in particular representatives of right 
holders, including authors and other creators, as well as internet intermediaries. Also, a proper 
representation of consumers and of small and medium-sized enterprises should be ensured.” 

On  the  composition  of the  Observatory  and  proper representation  of  the  different  stakeholders, 
most  respondents  (58%)  considered  that  there  were  no  interest  groups  underrepresented  or 
missing. This majority is higher within the group of professionals and organisations (67%) and 
higher still within the group of respondents that are Members of the Observatory (72%). Some 
disagreed  and  suggested  the  involvement  of  additional  stakeholders,  such  as  Pirates  party 
international, Human rights groups, internet users groups, Universities, research centres, creators 
of start-ups, market surveillance authorities and litigators (legal practitioners). 

In general, Members of the Observatory had a positive view on the way they are involved in the 
work developed by the Office. Most considered that the Office had created fruitful cooperation 
with  the  representatives  of  public  and  private  sectors  (89%)  and  helped  them  to  participate 
actively in the activities developed by the Office (83%). However, a number of the Members of 
the Observatory had suggestions for improvement. 

  BASCAP107, the Federation of European Publishers  (FEP)  108 and AIM indicated that it 
would be useful if the Office could promote more cooperation between the private and 
public sector representatives, as these two groups do not always understand each other’s 
priorities, limitations and challenges. 

107  BASCAP  (Business  Action  to  Stop  Counterfeiting  and  Piracy)  is  a  platform  within  the  International 
Chamber of Commerce (ICC). ICC is registered in the EU’s transparency Register under No 50674299591-
83. 
108 FEP represents 28 national associations of book publishers across Europe. FEP is registered in the EU’s 
transparency Register under No 398541467-53. 

55 

 
                                                      
  ANDEMA representatives to the Observatory considered that all too often Observatory 
meetings turned into events where participants were explained what the Office was doing 
rather than holding proper working meetings of working groups. 

Organisation of the meetings of the Observatory 

Almost  all  the  Members  of  the  Observatory  responded  to  the  questionnaire  (94%)  were  happy 
with  the  organisation  of  the  Office’s  meetings.  More  specifically:  50%  considered  that  the 
meetings  were  very  well  organised  and  44%  considered  the  meetings  to  be  well  organised  but 
with room for improvement, for example: 

  For  BusinesssEurope,  the  Office  should  avoid  overlaps  in  the  scheduling  of  different 
meetings  and  should  make  available  the  yearly  planning  of  meetings  in  advance.  AIM 
agreed and added that the planning of meetings should also avoid clashes with meetings 
organised  by  other  bodies  such  as  the  World  Intellectual  Property  Organisation  or  the 
World Customs Organisation. 

  For AIM, the plenary and common sessions should leave more time for debate and focus 
less  on  historical  overviews  of  work  streams.  Those  meetings  should  also  have  fewer 
speakers and fewer pre-prepared statements.  

  The  Society  of  Audiovisual  Authors  (SAA)109  and  International  Video  Federation 

(IVF)110 would prefer to have more meetings in Brussels and fewer in Alicante. 

Information and consultation of the Members of the Observatory  

Some  stakeholders  are  not  sufficiently  aware  of  all  the  projects  carried  out  by  the  Office.  One 
stakeholder representative stated that “Sometimes I have the feeling that I am lost in the massive 
amount of initiatives, studies that are being carried out. When I ask other Members, most of them 
have  the  same  feeling.”  AIM  and  BASCAP,  on  the  other  hand,  considered  that  they  were  not 
always sufficiently consulted and as a result, sometimes certain decisions on projects and events 
came  as  a  surprise  and  announced  as  a  done  deal.  INTA  also  stated  that  some  activities  and 
projects  were  planned  and  structured  without  the  active  contribution  of  experts  and 
representatives  at  the  very  beginning  of  the  projects.  According  to  BusinessEurope  “The 
consultation process should be more structured and permanent. This is why BusinessEurope has 
suggested that the Observatory strengthens its presence in Brussels.” 

It is therefore not surprising that while some Members of the Observatory were happy with the 
way the Office informs (27%) and consults them (22%), a bigger portion agreed yet considered 
that improvements were possible or needed both on the information to be provided (44%) and on 
the  way  they  were  consulted  (55%).  Only  11%  of  the  Members  of  the  Observatory  considered 
that the Office did not adequately inform or consult them. 

Most  Members  of  the  Observatory  considered  that  the  Office  adequately  took  their  views  into 
account, while 38% did not have further remarks, 44% considered that improvements are needed. 
Additional  comments  suggested  that  consultations  should  be  done  in  a  more  structured  and 
systematic manner and that meetings should allow more time for discussion. 

The process leading to adoption of the Observatory’s annual work programme was seen as being 
transparent by 61% of the Members of the Observatory. An additional (33%) agreed in general 
but  considered  that  improvements  were  needed.  In  this  regard,  some  respondents  would 

109 SAA is an association of European Collective Management Societies representing audio-visual authors. 
SAA is registered in the EU’s transparency Register under No 99336382936-11 
110  IVF  represents  national  associations  and  individual  companies  of  the  video  publishing  sector.  IVF  is 
registered in the EU’s transparency Register under No 7013477846-25 

56 

 
 
                                                      
appreciate being involved at an earlier stage in the process and not only asked to comment on a 
draft proposal. 

The Office’s overall performance 

A  significant  part  of  the  respondents  (43%)  believe  that  the  Office  has  achieved  good  or  very 
good  results  in  helping  to  improve  the  protection  of  IPR,  whereas  24%  considered  that  it  had 
achieved  no  meaningful  results  or  only  poor  ones.  The  approval  rate  was  higher  among 
professionals  and  organisations  (68%)  than  within  individuals  (23%).  Over  a  third  (36%)  of 
individuals  considered  that  the  Office  had  not  achieved  any  meaningful  results.  On  the  other 
hand, 88% of the Members of the Observatory considered that the Office had achieved good or 
very good results in improving the protection of IPR in the EU. 

According  to  half  of  the  respondents,  there  were  no  particular  circumstances  preventing  the 
Office  in  carrying  out  its  tasks  and  activities.  In  total,  29%  of  the  respondents  considered  that 
there were such circumstances: 

  14% of all respondents and half of those in the category ‘Members of the Observatory’ 
agreed  with  the  following  statement  “the  EUIPO  works  on  too  many  projects  and 
activities and not all them are sufficiently relevant or useful.” 

  10% of all respondents and 38 % of those in the category ‘Members of the Observatory’ 
agreed with the following statement “it is difficult or time consuming for participants to 
attend the Observatory’s meetings and events that take place in Alicante.”  

  10% of all respondents and 33 % of those in the category ‘Members of the Observatory’ 
agreed with the following statement: “it is too difficult to get data from Member States.” 

Efficiency and added value of the initiative 

The questionnaire included succinct information on the Office’s spending on its IP enforcement 
related  activities  (namely  around  €7  million  annually  in  2016  and  2017111)  and  referred  to  the 
study from the consultant which included further budgetary information and analysis. 

Half  of  the  respondents  did  not  respond  or  did  not  have  an  opinion  on  whether  the  Office’s 
spending  was justified in  view  of the  results  achieved. The ones  who  did  can  be  split  into  two 
categories: 

a)  Those  who  considered  the  costs  justified  and  proportionate  (21%),  and  those  who 
considered  that  the  Office  should  be  allocating  more  money  to  its  activities  under  the 
Regulation (8%). 

b)  Those  who  considered  that  the  Office  was  overspending  and  that  the  same  or  better 
results could be achieved with a lower budget (11%) and those who considered that the 
costs were not justified or proportionate for other reasons (9%). 

Therefore,  for  29%  of  the  respondents  the  Office  should  maintain  or  increase  its  spending, 
whereas 20% were critical of the Office’s budget. The comments received from respondents in 
the last category were mainly from individuals that oppose the concept of IP. According to one 
respondent “the costs could be saved by dissolving the EUIPO.” Another considered it abnormal 
to spend public money to protect the economic interests of the very few. Others considered that 
there were more pressing issues or that IPR were granted for too long a period of time. 

Some IP right holders organisations also considered the costs unjustified to the extent that “some 
of  the  studies  that  are  being  carried  out  are  not  that  extremely  important  for  the  Observatory 
tasks”  (ANDEMA),  or  that  spending  should  focus  on  trade  mark  or  designs  matters  (AIM). 

111  In  2016  and  2017,  the  Office  spent  EUR  7  million  and  EUR  7.2  million,  respectively,  on  activities 
related to its work with the Observatory and the fight against infringements of IPR (excluding salaries of 
statutory  staff  and  other  staff-related  expenditure).  This  information  was  made  available  in  the 
questionnaire and further information being available in the documents was made available for the purpose 
of the public consultation, including the Technopolis study.  

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According to the Society of Audiovisual Authors (SAA) more money should be allocated to pay 
for  the  relevant  Office’s  staff  to  come  to  meetings  in  Brussels,  so  that  more  meetings  of  the 
Observatory meetings could be organised there.  

Within  the  category  of  professionals  and  organisations,  36%  considered  the  costs  justified  and 
proportionate,  8%  considered  that  the  Office should be  investing  more,  8% considered  that  the 
costs were not justified and proportionate, and 2% considered that the Office was overspending. 

According  to  9%  of  respondents,  infringements  of  IPR  could  be  tackled  just  as  well,  or  even 
better, at national level without involving the Office. A majority of 60% considered that this was 
not the case. This majority is bigger in the professionals and organisations category (80%) and 
bigger still in the Members of the Observatory category (88%). 

58