Special cases
Intervention ex officio
A customs office can act ex officio, pursuant to Article 18 of Regulation (EU) No 608/2013, even before an application for action has been granted, if customs monitoring has established reasonable grounds for suspecting that goods infringe an intellectual property right, and if the products in question are not perishable goods.
The customs office can initially suspend the release of the goods for one day in order to determine who is entitled to submit an application. If the individuals or entities who are entitled to submit an application in connection with the suspected infringement have been identified, they will be notified of the suspension of release or detention of the goods. The customs office will also notify the declarant or the owner of the goods concerned. Should no person or entity entitled to submit an application be identified, the goods shall be released.
An application for action must have been submitted to the Central bureau of intellectual property rights (ZGR) within four working days of the announcement of the suspension of the release or detention of the goods. It will then be granted, initially for the seizure in question, and can be extended for a longer period when all the information pursuant to Article 6(3) of Regulation (EU) No 608/2013 has been provided.
The Central bureau of intellectual property rights (ZGR) is available to assist applicants.
If an application for action by the customs authorities is submitted within four days and is granted by the Central bureau of intellectual property rights (ZGR), it is followed by the regular procedure pursuant to Regulation (EU) No 608/2013.
In this context please be aware that the period of ten working days within which you must confirm whether or not the goods in question are infringing goods begins from the time of the suspension of their release or their detention.
ZGR-Online
Action pursuant to Community legislation
Goods in small consignments
For goods that are imported in small consignments and suspected of infringing a trade mark, geographical indication, copyright, or design, the procedure for the destruction of goods in small consignments pursuant to Article 26 of Regulation (EU) No 608/2013 applies.
Consignments are categorised as small if they
- contain not more than three units or have a gross weight of less than two kilograms,
- are forwarded by postal or express courier, and
- do not contain perishable goods.
If the Customs suspects that the goods infringe intellectual property rights they inform the declarant or the owner of the goods of their intention to destroy them. The holder of the decision is not informed. The declarant or the owner of the goods is given the opportunity of presenting a defence and/or lodging an appeal within ten working days of notification. If the latter does not lodge an appeal, approval will be deemed to have been granted, and the goods will be destroyed under customs supervision. If the holder of the decision lodges an appeal, he must initiate civil proceedings that will confirm whether an intellectual property right has been infringed.
The holder of the decision shall pay the costs arising within the framework of the destruction procedure.
Transit
If certain requirements are met, the customs authorities may also intervene under Regulation (EU) No 608/2013 in the case that goods infringing an intellectual property right (within the meaning of Article 2(7) of Regulation (EU) No 608/2013) are being transported across the territory of the Federal Republic of Germany to another EU Member State or to a third country.
If there are specific grounds for suspicion that the goods in question are intended to ultimately remain in the Single Market area or are likely to be re-imported into the EU, Customs may become active at any time. Such suspicion must have arisen following consideration of the situation as a whole, in the individual case.
Action in accordance with Regulation (EU) No 608/2013 may also be taken if there is a suspicion that non-Union goods have been affixed a trade mark (international, Union or German trade mark, protected trade name) without the consent of that mark’s owner and are being carried from a third country across the European Union to another third country, or across the Federal Republic of Germany to another EU Member State, without such goods actually entering the market.
Travel
Normally, where travellers are carrying non-commercial counterfeit or pirated goods in their personal luggage, the customs will not intervene.
However, commercial imports by travellers of goods infringing intellectual property rights also come within the scope of Regulation (EU) No. 608/2013, and/or national rules on seizure. Depending on the individual case the procedure to be followed is either as laid down in EU legislation, or in accordance with national rules, and will lead to destruction of the goods or, possibly, the initiation of civil proceedings.
Postal traffic
Post, freight, or parcel imports by the Deutsche Post AG, as well as by other transport, courier, or logistics services are in principle subject to inspection by the customs administration.
If these imports are commercial imports and the consignments include goods that infringe intellectual property rights, the customs take actions pursuant to Regulation (EU) No. 608/2013 and/or the national rules on seizure.
The customs authorities may initiate action pursuant to this Regulation in any case where a suspicion of infringement has arisen, in contrast to the national rules, which require a manifest infringement of intellectual property rights.
In both cases, intellectual property rights are only deemed to have been infringed if the offence occurs in relation with the course of trade. Indications of trade can, in particular, arise from the appearance of the consignment or the consignor’s details. A product is being used in the course of trade if it is being used for any business purpose of the owner or a third party. The customs detain e.g. goods in postal traffic from third countries that have been purchased in Internet trading if there is suspicion that they infringe intellectual property rights.
Please be aware that under certain conditions a simplified procedure for small consignments imported by post or courier service applies.
Early release of the goods
If the customs are informed, after suspension of release or after detention of goods subsequent to the initiations of civil proceedings to determine whether an intellectual property right has been infringed, the declarant or owner of the goods can apply to the customs for the release of the goods before the completion of the court proceedings.
Early release is conditional upon the following:
- that the presumptively infringed intellectual property right is a utility model, a patent, a semiconductor topography, or a plant variety right,
- that the applicant or the owner of the goods has provided a bail,
- that there are not any protective measures (e.g. interim injunction) imposed by the competent court,
- that all other customs formalities, in particular such as the payment of the relevant import duties, have been complied with.
