Seizure under national legislation

Usually the Customs authorities will proceed against infringing products under Community legislation. Not all areas of action, though, are covered by EU regulations. In these cases seizure under national legislation may be conducted.

In particular, this relates to cases of

• intra-Community trade,
• imports known as parallel and/or grey imports,
• so called production over-runs (articles produced in excess of the licensed quantities)

What are the conditions that must be met before the Customs can conduct a seizure under national legislation?

The conditions under which a seizure under national legislation can take place are specified in German legislation such as the Act on the Protection of Trade Mark and other Symbols (Markengesetz), the Copyright Act (Urheberrechtsgesetz), the Designs and Utility Models Act (Gebrauchsmustergesetz) and the Plant Varieties Act (Sortenschutzgesetz). The conditions under which infringing goods can be confiscated are regulated identical in all rules.

The customs authorities can seize goods when they are imported or exported. Here import and export means any shipment into or out of Germany. This includes not only imports from a third (non-EU) country but also shipments from a Member State. An import is complete when it has arrived at its first destination.

In each case, the right-holder must submit an application for seizure and provide the appropriate security (bank guarantee).

You can find more detailed information in the section "Application under national legislation".

The application under national legislation

The right-holder or beneficial holder can, of course, have a representative make the application.

In contrast to the procedure pursuant to Community legislation (Article 18 of Regulation (EU) No 608/2013), no goods may be seized unless an application has been granted. Neither can the application for a seizure be made retroactively.

In the case of an application that has been granted under national legislation the customs office may only then order a seizure when the infringement is manifest. "Manifest" means that during clearance, it appeared very likely to the customs official that there was an infringement. However, for action pursuant to Regulation (EU) No 608/2013 there need only be a suspicion.

In practice the most common reason for the failure of a seizure is because an infringement is not manifest. It is here that the customs authorities rely on the collaboration of the right-holder. When submitting the application, the right-holder must provide information that will allow customs officials to be able to identify an infringement. Without such information the customs office is unable to seize any goods.

What happens during a seizure?

The consignee (usually the importer, exporter, holder or owner) and the applicant are notified of the seizure. After delivery of the notification there is a period of two weeks within which an objection against the action of the Customs authorities can be lodged. If no objection is lodged the goods concerned are ruled to be forfeited.

Should an objection be lodged the applicant will be promptly informed of the fact by the Customs office and requested to inform it promptly whether he will continue with his application against the seized goods. Should he not continue with his application, the seizure is revoked. If he continues with his application he must present an enforceable court decision ordering the storage of the seized goods within 2 weeks.

If the holder accepts the interim injunction the goods are forfeit. If he does not, principal proceedings must be initiated. If a court confirms the rights infringement in its principal proceedings, the goods are also ruled to be forfeit. If the court does not confirm the infringement the Customs authority will revoke the seizure.

The forfeiture notice is served on the holder. It is of course possible to appeal against the forfeiture. Should no legal remedies be taken the forfeiture becomes legally binding two weeks after the service of notice, and the goods will be destroyed.