In January this year the new Customs Regulations (608/2013) came into force giving customs authorities extended powers to detain counterfeit goods at the borders of the EU. Whilst not changing the substantive law, which will hopefully be covered by the proposed new Community Trade Mark Regulations and Directive, it does offer improved procedural rules that should aid efficient enforcement of intellectual property rights.

Of particular interest is the issue of goods in transit through the EU and the powers now granted to customs to stop them. Previously customs officers had limited ability to take action if a consignment was not released onto the market but was, or was claimed to be, destined for a non-EU country where the rights holder possibly had no registered protection. There is now some helpful wording in the Regulations, such as Recital 15, which uses “reasonable indication” instead of “having sufficient reason to believe” that goods infringe intellectual property rights as the basis on which customs officials can suspend the release of or detain the goods. This means that customs officers can take into account inadequate or false transport documentation that arouse their suspicion that goods may be counterfeit and destined for a country within the EU.

Where the importer or consignee of the goods challenges a seizure and there is prima facie evidence in the supporting documentation that goods are not destined for an EU country, the burden of proof will shift onto them to convince the court that the goods should be released. Bearing in mind how difficult it is for the brand owner to prove a negative, this procedural change will greatly assist those trying to ensure counterfeit goods do not get released onto the market. It should make it harder for those trading in counterfeit goods to manipulate the system to avoid detention and lead to the destruction of goods if they get stopped. It is also anticipated that when a seizure is made the importer/consignee will be less likely to challenge the detention as they will know they are unlikely to be able to convince a court that the goods are not counterfeit.

Time will tell how effective the implementation of the Regulation will be, and brand owners are encouraged to share relevant information with the authorities. A review of the Regulations is scheduled for 2016. The subsequent report should make for interesting reading.