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horak.
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Tel +49.511/357356-0
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horak.
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Border Seizure horak Attorneys at Law - Hanover/ Munich - Germany

Counterfeit or illegally manufactured products which are placed on the market as counterfeit trademarks can be confiscated by the customs authorities under certain conditions.

In this case, we talk about „Border Seizure“(or „Grenzbeschlagnahme“ in Germany) since these seizures take place at the borders.

A distinction is made between:

  • Border Seizure according to Community Legislation and
  • Border Seizure according to national and international legal provisions.

Border Seizure according to Community Legislation (EU Law Border Seizure)

In order to prevent imports of illegal products from non-European countries (the so-called third countries), an appropriate settlement has been established by the EU Regulation (EC) No 1383/2003. The Regulation shall also apply only where the goods are non-Community goods that are under customs supervision or in a free zone.

The application concerning the Community Legislation can be made for almost all industrial /  intellectual property rights. The scope of application covers imports of infringing goods from third countries (even if the goods have already passed the border, but are still under customs supervision, as well as in case of exports to third countries).

Anyone owning one of the following protectives rights is entitled to motion:

  • Trademark or a sign;
  • Patent;
  • A certificate according to the regulation (EEC) No 1768/92 or Regulation (EC) No 1610/96;
  • Copyright or similar protection right;
  • Registered design patent;
  • Protection Variety Law;
  • Protected designation of origin etc.

If there is the suspect that a good is infringing an existent intellectual property (trademark, copyright, design rights, patents, supplementary protection certificates, plant variety rights, designation of origin and geographical indications), the customs authorities shall suspend the release of that product or hold that back.

The suspension of release (Aussetzung der Überlassung- AdÜ) is expressed after the customs declaration has been accepted. In all other cases, a restraint order is carried out (Zurückhaltung- ZvW). The legal consequences of the two measures are identical.

Important: In the case of Community Legislation protection, the application is released for all other Member States; In the case of national protective rights, a separate application must be submitted for each country.

Border Seizure according to national legal provisions (German Law Border Seizure)

Generally, the customs authority will act in accordance with the Community Legislation in case of proceedings against infringing goods. However, the customs authority also has the possibility to take action in intra-Community trade, as well as in cases of products imported in parallel etc. In all those mentioned cases, seizures concern national legal provisions.

Those regards:

  • Parallel imports/ grey import
  • Intra-Community trading
  • Unregistered trademarks and trade names
  • Usage patterns and semiconductor protection.

The customs authorities may confiscate during the export or import. With import and export, is intended every transfer from and in the Federal Republic of Germany. This includes not only transfer from a third country, but also the movement from another Member State. An import is completed with the arrival of the goods at the first destination.

Implementation of Border Seizure

An application must be submitted by the legal owner and a corresponding security deposit (banker´s guarantee). The application requirements are essentially the same as those of the application form under Regulation (EC) No 1383/2003. Contrary to the procedure declared by the Community Legislation (Article 4 of Regulation (EC) No 1383/2003), seizure is prohibited without an authorized application.

In the event of submission of an authorized application, the customs office may order a seizure if the infringement is obvious. This means that the local customs officer must be clearly aware of the infringement and that there should be no reasonable doubt. In practice, the examination of the obvious is the most difficult. Here the customs authorities are dependent on the co-operation of the rights-holder. As soon as the application has been submitted, the rights-holder must make identification notices which enable the customs officers to establish a breach of the law without a doubt. Without such indications, the customs office is not in a position to undertake seizures.

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© German lawyer Michael Horak 2002-2017

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