Intellectual property rights — customs enforcement

KEY POINTS

This regulation particularly covers goods in the following situations:

• when declared for release for free circulation, export or re-export;
• when entering or leaving the customs territory of the EU;
• when the goods are suspended from customs clearance or are in a free zone or free warehouse¹.

It sets out procedures for applications to determine whether an IPR has been infringed. For the purposes of the regulation, an IPR could include:

• a trade mark;
• a design;
• a copyright under national or EU law;
• a geographical indication (such as Champagne or Parma ham);
• a patent under national or EU law;
• a supplementary protection certificate for medicinal products;
• a supplementary protection certificate for pesticides;
• an plant variety right under national or EU law;
• a semiconductor product design under national or EU law;
• an IPR that protects inventions under national or EU law;
• a trade name protected as an exclusive IPR under national or EU law.

The regulation:

• sets out the conditions for customs action where goods are merely suspected of infringing IPRs;
• sets out measures to be taken against goods that have been found to infringe IPRs;
• expands the range of IPR infringements covered and reinforces the competence of customs authorities to control all goods under customs supervision — this does not apply to non-commercial goods in travellers’ personal luggage;
• ensures that high-quality information is provided to customs to enable a comprehensive assessment of the risk of IPR infringement;
• sets out the legal basis for a central database for recording the applications for customs action and detentions of IPR-infringing goods as well as the exchange of information between customs authorities.

To reduce administrative burden, the regulation:

• sets out a common procedure for all kinds of IPR infringements falling within the scope of the regulation, under which goods may be destroyed without the need for the rightsholder to initiate legal proceedings, on condition that:
  • the rightsholder confirms in writing that in their conviction there is an infringement and that they agree to their destruction, and
  • the declarant or holder of the goods does not object to destruction;
• states that the procedure for small consignments applies only on prior request from the applicant and that the customs authorities may require the applicant to cover the costs — a small consignment is defined as a postal or express courier consignment, which either contains three units or fewer or weighs less than 2 kg.

In addition, the regulation:

• stipulates that national laws apply when granting the right to be heard of the persons concerned by the detention of goods;
• broadens and clarifies the cases where the rightsholder may use the information that customs disclose following a detention of goods;
• includes rules on data collection, processing, data retention periods and the exercise of rights and responsibilities in relation to existing legislation on data protection.