The Intellectual property law means a trademark, a design, a copyright or any related right, a geographical indication, a patent, as provided for in national (national) or European Union law.
Most counterfeits and other goods that contravene these intellectual property rights are manufactured in a third country outside the European Union. Thus, the customs authorities of the Member States play an essential role in preventing the placing on the market of such counterfeit goods.
How do the customs authorities intervene?
The customs authorities have as control lever Regulation (EU) no. 608/2013 which stipulates the conditions and the procedures for intervention, in case the goods likely to infringe an intellectual property right are or should have been subject to customs supervision.
If goods that are likely to infringe an intellectual property right are identified, the customs authorities may suspend the granting of customs clearance for the goods or may withhold them. Therefore, if there is insufficient evidence at the time of import to prove that these rights have not been violated, the goods may be withheld. In this regard, the customs authorities ask for confirmation from the rights holder (eg the trademark owner). At the same time, the customs authorities may also refer the criminal investigation authorities.
How should importers act?
In order to prevent the goods from being blocked in customs, it is essential for importers to obtain information in advance about the goods purchased in the area of intellectual property rights, before the effective import formalities are carried out.
If the customs authorities decide to withhold the goods on suspicion of infringement of the intellectual property right, the importer has the possibility to request the early granting of the customs clearance until the suspicions are eliminated, in order to avoid blocking them.
More precisely, by lodging a guarantee, the amount of which is sufficiently high to protect the interests of the eventual owner of the trademark. Lately, there has been a significant increase in imports of consumer goods while tightening the conditions under which one can claim an intellectual property right over a trademark, a design or a model.
For example, we can mention the decision of the General Court of the European Union of June 2019 which concluded that the brand "Adidas", consisting of three parallel stripes applied in any direction, does not fulfill the conditions of the trademark registered in the European Union.
In this context, it is advisable for all importers of such goods to implement sufficient internal control measures to detect such cases in advance of the moment of customs clearance. In this way, the treatment of these goods with the customs authority can be clarified before a possible retention of the goods for suspicions of infringement of intellectual property rights.
