Applying for action by customs authorities
Legal basis and legal consequences
With the exception of the special regulation in Article 4 of Council Regulation (EC) No 1383/2003, customs authorities only act at the right-holder's request.
This is where the field of intellectual property protection varies from the other prohibitions and restrictions that generally lead to the customs authority intervening on its own initiative.
Legal basis and legal consequences
The respective protected right determines the preconditions for an application as well as the application procedure:
- Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights
- Sections 146 to 150 of the Markengesetz (Trademark Act)
- Section 111b of the Urheberrechtsgesetz (Copyright Act)
- Sections 55 to 57 of the Geschmacksmustergesetz (Design Act)
- Section 142a of the Patentgesetz (Patent Act)
- Section 25a of the Gebrauchsmustergesetz (Utility Model Act)
- Section 40a of the Sortenschutzgesetz (Plant Variety Protection Act)
- Section 9(2) of the Halbleiterschutzgesetz (Semiconductor Protection Act)
- Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products
- Council Regulation (EC) No 1610/96 of the European Parliament and of the Council of 23 July 1996 concerning the creation of a supplementary protection certificate for plant protection products
- Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety protection rights
- Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs
- Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine
- Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks and repealing Council Regulation (EEC) No 1576/89
According to these regulations and upon request, there are two options:
- The customs offices may suspend the release of or detain goods, which are suspected of infringing certain intellectual property rights, when the goods are released for free circulation, when they are subjected to customs controls, when they are placed under a suspensive procedure (i.e. transit procedure, customs warehousing procedure, inward processing after the suspensive procedure, processing and temporary admission), when they are placed in a free zone or warehouse, as well as when the goods are exported and re-exported.
- The customs offices may seize the goods at import or export where the infringement of a right is manifest.
The abovementioned measures are informally referred to using the term "border seizure" and lead to the interruption of customs clearance and the imposition
of a prohibition on disposal.
As a customs clearance measure, border seizures should not be confused with seizures conducted in line with provisions on criminal proceedings.
Application pursuant to Community and national law
Council Regulation (EC) No 1383/2003 sets out the requirements for applications regarding registered trademarks, patents, copyright and related rights, design rights, supplementary protection certificates for medicinal products and plant protection products, plant variety protection rights as well as geographical indications and designations of origin.
Applications for the seizure of parallel or grey imports, intra-Community goods consignments and applications regarding utility model protection, the topography of microelectronic semiconductor products and non-registered trademarks or company names are based exclusively on German laws on protected rights.