Customs Administration of the Netherlands Tax and Customs Administration Information sheet | April 2014 Intellectual property rights (IP rights) This information sheet covers the following subjects: • What you can do to have Customs take action if you suspect that your intellectual property rights (IP rights) are being infringed. • An explanation of the procedures for suspected infringement of intellectual property rights (IP rights). • What Dutch Customs does if it suspects that intellectual property rights (IP rights) are being infringed. • General information on the laws and regulations concerning intellectual property rights (IP rights) (Regulation 608/2013 of the European Union). • Transitional regulations of Regulation 1383/2003 to Regulation 608/2013. Customs IPR-team (Intellectual Property Rights Team) coordinates the supervision and monitoring of violations of Intellectual Property Rights (IP rights). They form the central point of contact for IP rights DO 952 - 1Z*2FD ENG Contents 1Combating infringements of intellectual property rights 2 2 Application of Regulation 608/2013 2 3Which IP rights does the Regulation cover? 2 4 What is considered a suspected? infringement of IP rights? 3 5 When is the regulation not applicable? 3 6Submitting an application for Customs action 3 6.1 Submitting an application for Customs action to the IPR-team 3 6.2 Information required for the application 3 6.3 Processing of the application 4 7 Ex officio action by Customs before an application is made 4 7.1 Submission of application within 4 working days 5 8 Perishable goods 5 8.1 What are perishable goods? 5 8.2 No ex officio Customs action 5 9 Procedure for Customs action 5 9.1 Customs requests information 5 9.2 Customs sends a notification 5 9.3 Response within 10 working days 5 9.4Extension of the period by a maximum of 10 working days 6 10 Inspection and sample analysis 6 11Why no ‘small consignments procedure’ in the Netherlands 6 12 Release of goods under guarantee. 7 13 13.1 13.2 13.3 13.4 13.5 Obligations of the holder of the decision 7 Permitted use of information 7 Meeting the notification obligations 7 Return of samples 7 Obligations regarding costs and translation 7 Valid reasons for not initiating civil proceedings 7 13.5.1Obligation breached only when destruction is approved 8 13.5.2 Communication of reason to the IPR-team8 13.5.3 What is a valid reason? 8 14Penalties against the holder of the decision 8 14.1 Use of information for other purposes 8 14.2Failure to meet the notification obligations to Customs 8 14.3 Samples not returned 8 14.4 Costs not paid 8 14.5 Failure to initiate civil proceedings 8 15 Liability for costs and losses 8 16 Transitional regime 8 16.1 Decision for customs action 8 16.2Procedures 9 17 More information 9 18 Address details of IPR-team9 1Combating infringements of intellectual property rights When carrying out its customs controls Customs may come across goods that probably infringe certain intellectual property rights (referred to below as IP rights). Infringements of IP rights (such as counterfeiting and piracy) are an international phenomenon and have serious economic and social implications. Not only do they disrupt the internal European market; they can also be harmful to consumers. Issues such as public health, public order and security may arise in this context. This situation can result in the diversion of trade flows and false competition, which may lead to partici pants losing confidence in the internal market and reducing their investments. It is therefore very important to protect IP rights. Customs has a task here under Regulation 608/2013 (referred to below as ‘the Regulation’). Customs is empowered to enforce IP rights to goods subject to customs supervision or customs controls. Enforcing IP rights at the external border - where the goods are under customs supervision or subject to customs controls - is an effective way of quickly offering the right-holder efficient legal protection. If the release of the goods is suspended or Customs detains goods at the external border, only one procedure is required. This is despite the fact that various separate procedures are needed for the same level of enforcement for goods found in free circulation owing to the fact that they are split up and delivered to traders. If you believe that your IP rights are being or will be infringed in the Netherlands or another EU Member State you can apply to Customs to take action against the infringement. If Customs approves your application and comes across goods described in your application, it will detain the goods. You will then be notified of this so that you can establish whether your IP rights are actually being infringed and are able to take action. It is also possible for Customs to establish a possible infringement of IP rights during a customs controls without the right-holder having made a request beforehand (ex officio action). In that case Customs will contact the right-holder, who can then submit an application and take measures to protect his rights. 2 Application of Regulation 608/2013 The holder of an IP right is first and foremost himself responsible for taking action against an infringement of that right and has various alternatives under civil law at his disposal. There are situations in which enforcement under civil law is not sufficient, efficient or desirable because protecting the public interest necessitates intervention under criminal law. In those cases Customs applies criminal law rather than the procedures under the Regulation. Customs always takes action under criminal law when it comes across infringing goods among: • passengers • postal and courier shipments and cargo shipments if the infringing goods remain under a set quantity. The purpose of the Regulation is to prevent these goods getting into free circulation wherever possible. The Regulation therefore provides for a procedure that enables Customs to take certain action in the event of the suspected infringement of a certain IP right. Customs suspends the release of the goods or detains the goods, after which the holder of the decision has a certain amount of time in which to establish whether the goods are actually infringing his IP rights and whether he wishes to initiate civil proceedings against the infringement. Purpose of Regulation not absolute The primary purpose of the Regulation is to enable Customs to help the right-holders to enforce their IP rights. This is not absolute because goods suspected of infringing rights are released if the right-holder fails to meet the conditions of the Regulation with the set time periods. 3Which IP rights does the Regulation cover? Regulation 608/2013 is applicable to goods protected by the following IP rights (Article 2, paragraph 1): • trademark rights • designs and models rights • copyrights • related rights • patent rights • supplementary protection certificate • plant variety rights • designations of origin or geographical indications • geographical designations • trade names • utility model • topography of semiconductor products Customs plays a facilitating role in the application of the Regulation when goods that are probably infringing an IP right are found. Customs provides support facilities that make it possible for the right-holder to establish within a certain time period whether the goods in question are infringing his IP rights. The right-holder can if necessary initiate civil proceedings. Tax and Customs Administration | Intellectual property rights (IP rights) Intellectual property rights (IP rights) 2 4 W hat is considered a suspected? infringement of IP rights? 6Submitting an application for Customs action Article 2, paragraph 7 of Regulation 608/2013 indicates when goods are suspected of infringing an IP right. Goods suspected of infringing an intellectual property right are goods with regard to which there are reasonable indications that, in the Member State where those goods are found, they are prima facie: a) goods which are the subject of an act infringing an intellectual property right in that Member State b)devices, products or components which serve the purpose of enabling or facilitating the circumvention of any technology, device or component that prevents or restricts acts in respect of works not authorised by the holder of any copyright or related right. Examples include devices designed to remove or circumvent copy protection. c) moulds or matrices specifically designed or adapted for the manufacture of goods infringing an IP right. These moulds and matrices are placed on par with the infringing goods (Article 2, paragraph 7c) The Regulation provides 2 options for Customs taking action: 1 Customs acts on request (the right-holder has submitted an application). 2 Customs acts on an ex officio basis (of its own volition, without an application being made by the right-holder). 5 When is the regulation not applicable? Regulation 608/2013 is not applicable to: • goods protected by an IP right other than the IP rights stipulated in the Regulation • Community goods: −− Goods not originating from third countries. Customs does not have a task for community goods (unless they are declared for the customs export regulation). • Goods manufactured under conditions other than those agreed with the right-holder −− This concerns a legal relationship under private law in which Customs does not take action. Customs is not aware of which agreements have been made between the licence holder and the right-holder. In this case it is not relevant which IP right is being infringed (Article 1, paragraph 5). • Parallel trade and overruns −− Goods manufactured with the right-holder’s permission, but are found in an import, export or re-export situation without his permission (Article 1, paragraph 5). • Passenger luggage: −− Goods of a non-commercial nature found in the personal luggage of passengers (Article 1, paragraph 5). The procedures in the Regulation are not applied to passengers in the Netherlands: action is always taken under criminal law. • End-use regime. −− The Regulation is not applicable to goods released for free circulation under the end-use regime (Article 1, paragraph 3). Tax and Customs Administration | Intellectual property rights (IP rights) Intellectual property rights (IP rights) If the right-holder has submitted an application for customs action and the application has been approved, that party is designated as the ‘holder of the decision’. The right-holder can apply to Customs to take action if he believes that his IP right is being infringed. The right holder can apply for Customs action in any Member State. The application can be a national or a Union application. A Union application can only be submitted for IP rights based on EU law as operated in the EU. 6.1 S ubmitting an application for Customs action to the IPR-team The authority designated in the Netherlands to decide on requests for customs action is Tax and Customs Administration/Customs/ Groningen/IPR-team (referred to below as the IPR-team). 6.2 Information required for the application The right-holder must submit the application for Customs action, provided as much detailed information as possible so that Customs can trace and identify the goods in the goods flow. The application is made in writing. With effect from 1 April 2014 the application will be submitted in digital form. Information including the following is required (Articles 5 and 6): • details of the applicant and the applicant’s capacity as the right-holder • supporting documents demonstrating that the applicant is entitled to submit the application • the IP right or rights to be enforced • in the case of Union application, the Member States in which Customs action is being requested • specific and technical details of authentic goods (e.g. markings, bar codes, images, technical differences between authentic and suspicious goods) • information Customs needs to easily recognise the goods • relevant information to analyse and assess the risk of infringement of the IP right or rights in question (such as recognised distributors, etc.) • whether certain information should be treated confidentially (Article 32, paragraph 5) • name and address of the applicant’s representative charged with legal and technical issues • approval for the processing of information issued by the Commission and Member States 3 • whether the applicant is applying for the small consignments procedure (Article 26) to be operated and approval of the costs • whether he wishes to receive further information pursuant to Article 17, paragraph 4 The applicant provides the following information if he is able to: • location of the goods or their destination • information to identify the consignment • planned date of arrival or departure of the goods • means of transport used • identity of the importer, exporter or holder of the goods • country or countries where the goods are manufactured, the routes followed • special and specific details concerning the type of IP right to which the application for action makes reference The applicant undertakes to: • immediately inform Customs of (Article 15): −− expiry of the IP right −− the fact that the holder of the decision is no longer entitled to submit the application −− changes to the information given in the application The applicant is obliged • to update the information provided if this could be relevant to Customs’ analysis and assessment of the risk of IP rights being infringed • to accept liability if he does not continue proceedings brought before the civil court or if it is subsequently established that the goods do not infringe an IP right (Article 28) • to bear any costs incurred (Article 29) The Implementing Regulation 1352/2013 contains forms that are used to apply for Customs action. 6.3 Processing of the application If the application is rejected the IPR-team gives reasons for this decision and provides information about the objection procedure (Article 8). The application for Customs action usually remains in effect for a maximum of one year. After that the applicant can request an extension. The IPR-team sends a copy of the decision on the application to the relevant Member State or Member States for which Customs action is also being requested. 7 Ex officio action by Customs before an application is made The Regulation provides 2 options for Customs taking action: 1. Customs acts on request (the right-holder has submitted an application). 2. Customs acts on an ex officio basis (of its own volition, without an application being made by the right-holder). There are cases where Customs comes across goods that are suspected of infringing rights but for which the right-holder has not submitted an application for Customs action (Article 18). If Customs comes across goods that are suspected of infringing rights but which are not covered by a decision granting an application, Customs can also suspend the release of these goods or detain them. We refer to this as ‘ex officio Customs action’. At this stage Customs does not release the goods and continues the customs control . No decision is made on suspension or release at this point. The IPR-team is the authority that makes a decision on suspension under the Regulation in the context the probable infringement of an IP right. The IPR-team notifies the right-holder and the declarant or holder of the goods, at which point the formal suspension of release begins. We refer to the period for this as a customs control . Processing of incomplete application The IPR (Intellectual Property Right) Team assesses whether the application is complete. If the application for action does not contain the compulsory information the IPR-team cannot continue to process it. The applicant is given a period of 10 working days to provide the omitted information. The decision period is suspended. If the information is not received within 10 working days the application is rejected (Article 7). Processing of a complete application The IPR-team processes the application and gives the submitting party its written decision within 30 days of its receipt. No charge is made for this. Tax and Customs Administration | Intellectual property rights (IP rights) Intellectual property rights (IP rights) As in the case where an application has been submitted, Customs can ask all persons or entities that may have the right to submit application to provide all relevant information (Article 18, paragraph 2). This is done before Customs makes the decision on whether to release or detain the goods that may be infringing IP rights. At this stage no information other than the actual or estimated number of goods, their nature and images of them may be provided. If the IPR-team asks the right-holder to provide information about the goods found, that party must respond within 3 working days. If the IPR-team does not receive the requested information within 3 working days, the IPR-team decides whether to release the goods or continue the procedure. 4 The IPR-team assesses the report and must then identity the rightholder so that it can submit an application for customs action. The right-holder is established and informed within 1 working day. If the right-holder is identified he is informed that goods that may be infringing an IP right have been found. The IPR-team also informs the declarant or the holder of the goods that the procedure has been started. This notification represents the beginning of the formal suspension of release or detention of the goods and is when the time periods start. 7.1 Submission of application within 4 working days The right-holder must submit an application to the IPR-team within 4 working days of the IPR-team’s notification on the suspension of release or detention of the goods (Article 5, paragraph 3). This application can only be made nationally. The IPR-team informs the party who submitted the application whether it has been accepted or rejected within 2 working days. If the application is accepted the IPR-team also informs the declarant or the holder of the goods as such. If the application is turned down the IPR-team will immediately order the release of the goods so that they can continue on their way. 8 Perishable goods Perishable goods are subject to separate procedures and periods. 9 Procedure for Customs action 9.1 Customs requests information Situations may arise where Customs comes across perishable goods that are suspected of infringing an intellectual property right for which a decision granting an application for customs action has been issued. In that case Customs may ask you, the holder of the decision, to provide relevant information about the goods. Customs provides you with the following information about the goods: the actual or estimated number, the actual or suspected nature and, if available, images of the goods. 9.2 Customs sends a notification In cases where Customs suspends the release of or detains goods that are suspected of infringing rights, a notification to that effect will be sent to you as the holder of the decision. The declarant or holder of the goods is also informed of this. Customs provides information about the goods in this notification: the actual or estimated quantity, the actual or suspected nature and, if available, images of the goods. On your request, Customs will also if possible provide the following information: • the names and addresses of the addressee and the sender of the goods • the declarant or holder of the goods • the customs procedure • the origin, provenance and destination of the goods 8.1 What are perishable goods? Perishable goods are goods considered by Customs to deteriorate by being kept for up to 20 days from the date of their suspension of release or detention (Article 2, paragraph 20). It is therefore Customs that decides whether goods are perishable. Goods such as fresh flowers and food products with a ‘best before’ date will generally be considered to be perishable, for example. The calculation is made not in working days but in ordinary calendar days. The 20-day period starts with the IPR-team’s notification to the right-holder. The notification will generally be sent 4 working days after the goods are found and classified. 9.3 Response within 10 working days The 10 working day period begins on the date of the notification. You must respond in writing to the IPR-team within this period. Perishable goods are subject to a period of 3 working days. The periods start on the next working day at 00.00 hours following the date of the notification. You must clearly state in your response that: 1.an IP right is being infringed, and 2. approval has been given for the destruction of the goods. If your response is not received within 10 working days or does not provide clarity regarding the 2 stated points, Customs will release the goods. 8.2 No ex officio Customs action Situations may arise where Customs comes across perishable goods that are suspected of infringing an IP right for which no decision granting an application for customs action has been issued. In that case the release of these goods is not suspended and the goods are not detained (article 18, paragraph 1). No ex officio procedure is possible for perishable goods For cases concerning the possible infringement of an IP-right to perishable goods the right-holder must always have submitted an application in advance. Tax and Customs Administration | Intellectual property rights (IP rights) Intellectual property rights (IP rights) The declarant or the holder of the goods can make just one of the following responses to the IPR-team within the 10 working day period: a) He approves the destruction of the goods. b)He fails to respond within the set period. c) He objects to the destruction of the goods. 5 Situation a Example In this situation the declarant or the holder of the goods approves their destruction. In that case you (the holder of the decision) or the declarant must make agreements on and arrangements for the destruction of the goods under customs supervision. For this purpose a ‘destruction notice’ is submitted to Customs. The declarant lodges an objection with the IPR-team on day 8. The IPR-team immediately informs the holder of the decision of this (within 1 working day). The holder of the decision must then immediately make a properly reasoned application for the extension. In this case no strict requirements are set for the substantiation because it takes time to initiate civil proceedings (including taking prejudgement attachment measures). The extension of the term will not generally come as any surprise to the declarant or holder of the goods. After all, the starting point of an objection is that civil proceedings are being initiated and it is not reasonable to expect civil proceedings to be initiated within 1 working day. This situation is different, for example, if the declarant or holder of the goods lodges an objection within 3 working days. In that case a judgement can be made on whether the holder of the decision could reasonably have been expected to initiate civil proceedings sooner, within the first period of 10 working days. It is also possible for you (the holder of the decision) to immediately inform the IPR-team in writing that civil proceedings are being initiated and that the further procedure provided for in Regulation 608/2013 will not be used. For that purpose evidence of this must be provided within the period of 10 working days to prevent Customs releasing the goods after this period. Situation b If the declarant or holder of the goods fails to respond to the IPRteam within the 10 working day period, this will be taken as approval for the destruction of the goods suspected of infringing rights. Other than that, the situation under a. applies. Situation c If the declarant or the holder of the goods informs the IPR-team within the 10 working day period that he does not approve their destruction or has other objections, you (the holder of the decision) must initiate civil court proceedings within this time period. More information is given in the ‘obligations’ section. Based on a properly reasoned application to the IPR-team, you, the holder of the decision, apply for an extension of the period by a maximum of 10 working days. 9.4 E xtension of the period by a maximum of 10 working days The holder of the decision must meet the conditions within 10 working days of the notification. This period of time is considered sufficient for the holder of the decision to make his assessments and judgements concerning the application of the procedures under Regulation 608/2013. The holder of the decision must inform the IPR-team within this period whether his IP rights are being infringed and approve the destruction of the goods. If this is not done, the suspension of the release or the detention of the goods is terminated. This period is not extended. The IPR-team can extend the period by a maximum of 10 working days on request only if the holder of the decision has to decide whether to initiate civil proceedings because the declarant or holder of the goods has objected to their destruction (Article 23, paragraph 5). For this purpose the holder of the decision must make a properly reasoned application to the IPR Team (see the example below). The IPR-team decides on the application for an extension to initiate civil proceedings within 1 working day. Tax and Customs Administration | Intellectual property rights (IP rights) Intellectual property rights (IP rights) Please note: The institution of civil proceedings is compulsory. According to Regulation 608/2013 the holder of the decision is obliged to initiate civil proceedings in cases in which the declarant or holder of the goods objects to the destruction of the goods. More information is given in the ‘obligations’ section. 10 Inspection and sample analysis You must make a request to the IPR-team for the inspection of the goods or to obtain a sample. Inspection The holder of the decision and the declarant or holder of the goods can make a request to inspect the goods (Article 19). The direct packaging and everything affixed to the packaging and/or the goods (stickers/labels) can be inspected. The inspection only covers the goods and the packaging. The holder of the decision is not permitted to inspect to the declaration details. Sample analysis A sample can only be issued in the case of counterfeit goods or goods obtained through piracy (Article 19, paragraph 2). No samples are issued for other infringements. It is however permitted to inspect goods in the case of other infringements. Customs will provide or send these samples on the request of the holder of the decision. The samples may only be used for analysis and to facilitate the further course of the procedure. The samples are analysed under the responsibility of the holder of the decision. He must send the sample back to customs after completing the analysis, but before the goods are released or their detention is ended at the latest. If the holder of the decision fails to meet the obligation to return the issued sample prior to release or ending of the detention, Customs can impose a penalty (Section 16, paragraph 2b). 6 11Why no ‘small consignments procedure’ in the Netherlands Regulation 608/2013 has a separate procedure for small quantities of infringing goods in postal or courier shipments. The small consignments procedure is applied if, in accordance with Article 26, the goods: • have been counterfeited or obtained through piracy • are not perishable • are the subject of a decision on the granting of an application • are transported in small consignments (maximum 3 items/gross weight of 2 kg) The holder of the decision must request the application of the small consignments procedure in his application for customs action. This procedure is not operated in the Netherlands. Customs settles matters concerning consignments up to 25 items - in consultation with the Public Prosecution Service - and major cases where the public interest is at issue, under criminal law. 12 Release of goods under guarantee. In cases were infringement of one of the following IP rights is suspected Customs can release the goods under certain conditions (Article 24). The rights in question are: • designs and models rights • patent rights • plant variety rights • utility model • topography of semiconductor products. Customs releases the goods or ends their detention once the following conditions have been met: • The declarant or the holder of the goods has issued a guarantee sufficient to protect the interests of the holder of the decision • No prejudgement measures are in place. • All customs formalities have been fulfilled. The declarant or holder of the goods or the holder of the decision applies to the IPR-team to have the goods released. The IPR-team will approve the request if a guarantee has been issued to protect the rights of the holder of the decision. This is subject to the following conditions: • Customs does not set the amount of the guarantee • the guarantee is not issued to Customs • Customs does not check whether the level of the guarantee is sufficient Tax and Customs Administration | Intellectual property rights (IP rights) Intellectual property rights (IP rights) The IPR-team only checks whether the holder of the decision has agreed on this guarantee with the declarant/holder of the goods. If the holder of the decision has accepted the guarantee, there is nothing to prevent Customs releasing the goods. The level of the guarantee is not a matter for Customs and is the responsibility of the holder of the decision. 13 Obligations of the holder of the decision The holder of the decision for Customs action has the following obligations: 1 He is only allowed to use the information for the purposes of the Regulation. 2 He must meet the notification obligations to Customs 3 He must return any samples that have been issued. 4 He must meet any costs incurred. 5 He must give a valid reason for not initiating civil proceedings. 13.1 Permitted use of information The holder of the decision may not use the information issued by Customs for purposes other than those provided for in the Regulation. According to Article 21 the issued information may only be used for: • civil proceedings to establish whether an IP right is being infringed • criminal investigation into the infringement of IP rights • the institution of criminal proceedings and during these criminal proceedings • claiming compensation from the infringer or other persons • reaching agreement on the destruction of the goods • reaching agreement on the amount of the guarantee 13.2 Meeting the notification obligations In accordance with Article 15 the holder of the decision must immediately inform Customs of: • the lapse of an IP right stated in the application • the fact that the holder of the decision is no longer entitled to submit the application for other reasons • changes to the information given in the application to Customs 13.3 Return of samples As soon as he has completed the analysis the holder of the decision returns the samples to Customs, unless there are circumstances that prevent this from being done. The holder of the decision must in any event return the samples before the goods are released or their detention is ended (Regulation Article 19). 7 13.4 Obligations regarding costs and translation In accordance with Article 29, paragraphs 1 and 3, the holder of the decision pays any costs that are incurred by Customs (or other parties acting for Customs): • from the time of the detention or suspension of the release of the goods • for the sending of samples and facilitating inspections • if the infringing goods are destroyed in accordance with the normal or the small consignments procedure The holder of the decision can of course claim compensation from the infringer or other persons responsible for the infringement of intellectual property rights in accordance with the applicable law. The holder of the decision granting a Union application arranges and pays for all translations needed for the customs service acting for the goods that are suspected of infringing an intellectual property right (Article 29, paragraph 3). 13.5 Valid reasons for not initiating civil proceedings There may be cases where the goods suspected of infringing IP rights are not destroyed because the declarant or the holder of the goods has lodged an objection to this. In that case, the holder of the decision is obliged to inititate civil proceedings. It is only if the holder of the decision has a valid reason for not initiating civil proceedings that no penalty is imposed. 13.5.1 Obligation breached only when destruction is approved The obligation to initiate civil proceedings applies only if the holder of the decision - after being notified by Customs - indicates that the goods are infringing IP rights and he approves their destruction. If the holder of the decision does not respond at this stage of the procedure or fails to meet both conditions, he will not be considered to have breached the obligation to initiate civil proceedings. Customs will in this case release the goods. 14Penalties against the holder of the decision The holder of the decision has various obligations. If he fails to meet one of these obligations, Customs can impose a penalty in accordance with Article 16. 14.1 Use of information for other purposes If the holder of the decision uses the information issued by Customs for a prohibited purpose, Customs can impose a penalty by: • revoking the decision granting a national application and not extending the period in which Customs must take action • suspending the Customs action until the term in which action must be taken has expired • suspending a Union application in its territory 14.2 Failure to meet the notification obligations to Customs If the holder of the decision fails to meet the notification obligations provided for in Article 6, paragraph 3, Customs can suspend the decision for Customs to act until the period in which action must be taken has expired. 14.3 Samples not returned If the holder of the decision fails to meet the obligation to return the issued sample, Customs can suspend the decision for Customs to act until the period in which action must be taken has expired. 14.4 Costs not paid If the holder of the decision fails to meet the obligation to pay the costs, Customs can suspend the decision for Customs to act until the period in which action must be taken has expired. 14.5 Failure to initiate civil proceedings 13.5.2 Communication of reason to the IPR-team The holder of the decision will give the IPR-team the reason why he is not initiating civil proceedings regarding the goods suspected of infringing IP rights. 13.5.3 What is a valid reason? Regulation 608/2013 does not give any indications of what a valid reason is for not initiatingcivil proceedings. Is cost-benefit a valid reason? No, the fact that the number of infringing goods found does not weigh up against the costs and risks of civil proceedings is not a valid reason. The holder of the decision must consider this sooner, when he receives the notification. The quantity of goods is known at that time. At that stage the holder of the decision should not have approved the destruction of the goods. When he receives the notification the holder of the decision must therefore consider the possibility of the declarant or holder of the goods making an objection and the holder of the decision will have to initiate civil proceedings. Tax and Customs Administration | Intellectual property rights (IP rights) Intellectual property rights (IP rights) If the holder of the decision fails to meet the obligation to initiate civil proceedings (if the declarant or holder of the goods objects to their destruction) without a valid reason, Customs can suspend the decision for Customs to act until the period in which action must be taken has expired (Article 16, paragraph 2). The holder of the decision must give the IPR-team a reason why no civil proceedings have been initiated. 15 Liability for costs and losses The holder of the decision is liable for all costs and losses resulting from the detention or suspension of the release of goods. Customs is indemnified by means of the submitted application against all liability resulting from the suspension of the release or detention of the goods. 8 16 Transitional regime 18 Address details of IPR-team What are the implications of Regulation 1383/2003 being superseded by Regulation 608/2013? You can address your response, request for more information or questions to: 16.1 Decision for customs action Belastingdienst/Douane/Regiokantoor Groningen Team Intellectuele Eigendomsrechten (IER) PO Box 3070 6401 DN Heerlen Telephone: (088) 151 21 23 Fax: (088) 151 31 81 Email address: [email protected] Previous decisions remain in effect until the term of validity expires The applications granted under Regulation 1383/2003 will remain in effect for the period in which the customs authorities must take action as laid down in the decision granting the application. The decision for customs action will not be extended following the end of this period. At that point a new application for customs action must be submitted pursuant to Regulation 608/2013. Applications for customs action decision or extension submitted prior to 1 January 2014 Applications for customs action and requests for extensions to existing applications submitted prior to 1 January 2014 will be processed in accordance with Regulation 1383/2003, regardless of the time at which the decision was approved (before or after 1 January 2014). These remain in effect for the period stated in the decision on the application and will not be extended afterwards. After that a new application will have to be submitted in accordance with Regulation 608/2013. Application for revocation of existing decision and application for new decision under Regulation 608/2013 The holder of the decision can for reasons of his own make a request to have the existing decision for customs action revoked and submit a new application under Regulation 608/2013. 16.2 Procedures Procedures initiated prior to 1 January 2014 Regulation 608/2013 is not applicable to procedures initiated prior to 1 January 2014. These procedures will be settled under Regulation 1383/203. Suspension of the release/detention of the goods prior to 1 January 2014 will therefore be settled according to the procedures of Regulation 1383/2003. Procedures initiated after 1 January 2014 Suspension of the release/detention of the goods after 1 January 2014 will be settled under the procedures of Regulation 608/2013 regardless of the Regulation under which the relevant application for customs action was granted. 17 More information The text of Regulation 608/2013 is given in the EUR-Lex. More information about the application of and procedures under the Regulation are given on the site of the European Commission. Tax and Customs Administration | Intellectual property rights (IP rights) Intellectual property rights (IP rights) 9
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