The Customs Regulation
February 2013
The text of the new customs regulation (to replace Regulation 1383/2003/EC) now looks to be in its final form, having been approved in January by the relevant committee at the European Parliament. Certain final formalities will be completed in April and the new regulation will come into force in January 2014. The text can be seen here. It does not change the definition of the infringing goods that can be detained and seized by customs at the point of import into the EU, so the fundamental aspects of the old system remain.
Changes include:
- provisions to address the growing problem of counterfeits imported by post or courier in small consignments
- improvements to the accelerated procedure to secure destruction without a court order of the illegally imported goods detained
- relaxation of the rules (applied with varying strictness around the EU) about the use by rights holders of information learned from customs officers.
The last of these is especially helpful for brand owners since it means that if the goods detained prove to be illegal parallel imports or unauthorised overruns (which customs cannot seized under the regulation), the rights holders would be able to use the information learned about that consignment and the importer to take appropriate civil action against them. Currently such use is not strictly permitted.
The new regulation does not seek to change the rules on medicines and other goods in transit through the EU. The position therefore remains as determined in the Nokia v HMRC ECJ judgment, namely that even if the goods infringe rights in the country where detained, they cannot be seized unless there is a "substantial likelihood" that they will be diverted from their transit into the EU market. If there is to be any change here, it will come in the revisions to European trade mark law which is currently under review.
If you have any questions on this article or would like to propose a subject to be addressed by Synapse please contact us.
Christopher Benson
Chris is senior counsel and head of Trade Mark Prosecution team based in our London office.
