Legal remedies against the actions of the customs authorities

Which legal remedies are available?

There are a number of legal remedies available against the actions of the customs authorities that come within the scope of industrial property rights. Appeals can be lodged both against decisions to destroy goods and against customs action under national legislation such as seizure and confiscation.

Appeal against the decision to destroy goods pursuant to Regulation (EU) No 608/2013

Because a decision to destroy goods is a customs decision, it can be appealed (Article 44, Union Customs Code; Section 347 et seq., German Fiscal Code, AO). The appeal must be lodged within one month of the announcement of the decision for the destruction of the goods.

Should an appeal be made, there will be an examination of whether the conditions laid down in the decision had been met, that is whether

• a valid application had been made,
• the detained goods came within the scope of the application,
• there had been a suspicion that property rights had been infringed,
• the agreement of the holder of the decision to destroy the goods, and (only under the standard procedure) his declaration of an infringement of property rights, had  been provided, and
• the declarant or the owner of the goods had agreed to the destruction.

Legal remedies against a confiscation under the national procedure

The beneficial owner of the goods may, e.g. pursuant to Section 148(3) of the Trade Mark Act in conjunction with Section 63(1) of the Administrative Offences Act, contest a court decision on confiscation. This will concurrently be deemed to be an objection, e.g. within the meaning of Section 147(2) of the German Trade Mark Act.

Subsequently, the customs office informs the decision holder of the objection, and requests him to promptly inform it of whether he maintains the application involving the consignment concerned (e.g. Section 147(2) of the Trade Mark Act). The right-holder must confirm his declaration without delay by fax.

If the applicant revokes his application, the customs authority will cancel the seizure without delay.

If the applicant maintains his application, he must provide an enforceable court judgement concerning the storage of the goods or a restriction on the disposal of the goods, within two but not later than four weeks (Sections 147 (3) and (4) of the Trade Mark Act ). The custom office takes all the necessary actions such as the continued storage of the goods infringing intellectual property rights. The seizure will be cancelled if the applicant is unable to provide the enforceable court judgement within two weeks or, if he shows good reason, within four weeks.

Legal remedies against a confiscation under the national procedure

An appeal can be lodged within two weeks of the notification of a confiscation (Section 148(3) and Section 87(3), German Trade Mark Act, in conjunction with Section 67, Administrative Offences Act). The competent Main Customs Office shall decide on any appeal.