CHAPTER IIIACTION BY THE CUSTOMS AUTHORITIES

SECTION 1Suspension of the release or detention of goods suspected of infringing an intellectual property right

Article 17Suspension of the release or detention of the goods following the grant of an application

1.

Where the customs authorities identify goods suspected of infringing an intellectual property right covered by a decision granting an application, they shall suspend the release of the goods or detain them.

2.

Before suspending the release of or detaining the goods, the customs authorities may ask the holder of the decision to provide them with any relevant information with respect to the goods. The customs authorities may also provide the holder of the decision with information about the actual or estimated quantity of goods, their actual or presumed nature and images thereof, as appropriate.

3.

The customs authorities shall notify the declarant or the holder of the goods of the suspension of the release of the goods or the detention of the goods within one working day of that suspension or detention.

Where the customs authorities opt to notify the holder of the goods and two or more persons are considered to be the holder of the goods, the customs authorities shall not be obliged to notify more than one of those persons.

The customs authorities shall notify the holder of the decision of the suspension of the release of the goods or the detention on the same day as, or promptly after, the declarant or the holder of the goods is notified.

The notifications shall include information on the procedure set out in Article 23.

4.

The customs authorities shall inform the holder of the decision and the declarant or the holder of the goods of the actual or estimated quantity and the actual or presumed nature of the goods, including available images thereof, as appropriate, whose release has been suspended or which have been detained. The customs authorities shall also, upon request and where available to them, inform the holder of the decision of the names and addresses of the consignee, the consignor and the declarant or the holder of the goods, of the customs procedure and of the origin, provenance and destination of the goods whose release has been suspended or which have been detained.

Article 18Suspension of the release or detention of the goods before the grant of an application

1.

Where the customs authorities identify goods suspected of infringing an intellectual property right, which are not covered by a decision granting an application, they may, except for in the case of perishable goods, suspend the release of those goods or detain them.

2.

Before suspending the release of or detaining the goods suspected of infringing an intellectual property right, the customs authorities may, without disclosing any information other than the actual or estimated quantity of goods, their actual or presumed nature and images thereof, as appropriate, request any person or entity potentially entitled to submit an application concerning the alleged infringement of the intellectual property rights to provide them with any relevant information.

3.

The customs authorities shall notify the declarant or the holder of the goods of the suspension of the release of the goods or their detention within one working day of that suspension or detention.

Where the customs authorities opt to notify the holder of the goods and two or more persons are considered to be the holder of the goods, the customs authorities shall not be obliged to notify more than one of those persons.

The customs authorities shall notify persons or entities entitled to submit an application concerning the alleged infringement of the intellectual property rights, of the suspension of the release of the goods or their detention on the same day as, or promptly after, the declarant or the holder of the goods is notified.

The customs authorities may consult the competent public authorities in order to identify the persons or entities entitled to submit an application.

The notifications shall include information on the procedure set out in Article 23.

4.

The customs authorities shall grant the release of the goods or put an end to their detention immediately after completion of all customs formalities in the following cases:

(a)

where they have not identified any person or entity entitled to submit an application concerning the alleged infringement of intellectual property rights within one working day from the suspension of the release or the detention of the goods;

(b)

where they have not received an application in accordance with Article 5(3), or where they have rejected such an application.

5.

Where an application has been granted, the customs authorities shall, upon request and where available to them, inform the holder of the decision of the names and addresses of the consignee, the consignor and the declarant or the holder of the goods, of the customs procedure and of the origin, provenance and destination of the goods whose release has been suspended or which have been detained.

Article 19Inspection and sampling of goods whose release has been suspended or which have been detained

1.

The customs authorities shall give the holder of the decision and the declarant or the holder of the goods the opportunity to inspect the goods whose release has been suspended or which have been detained.

2.

The customs authorities may take samples that are representative of the goods. They may provide or send such samples to the holder of the decision, at the holder’s request and strictly for the purposes of analysis and to facilitate the subsequent procedure in relation to counterfeit and pirated goods. Any analysis of those samples shall be carried out under the sole responsibility of the holder of the decision.

3.

The holder of the decision shall, unless circumstances do not allow, return the samples referred to in paragraph 2 to the customs authorities on completion of the analysis, at the latest before the goods are released or their detention is ended.

Article 20Conditions for storage

The conditions of storage of goods during a period of suspension of release or detention shall be determined by the customs authorities.

Article 21Permitted use of certain information by the holder of the decision

Where the holder of the decision has received the information referred to in Article 17(4), Article 18(5), Article 19 or Article 26(8), he may disclose or use that information only for the following purposes:

  1. (a)

    to initiate proceedings to determine whether an intellectual property right has been infringed and in the course of such proceedings;

  2. (b)

    in connection with criminal investigations related to the infringement of an intellectual property right and undertaken by public authorities in the F1United Kingdom;

  3. (c)

    to initiate criminal proceedings and in the course of such proceedings;

  4. (d)

    to seek compensation from the infringer or other persons;

  5. (e)

    to agree with the declarant or the holder of the goods that the goods be destroyed in accordance with Article 23(1);

  6. (f)

    to agree with the declarant or the holder of the goods of the amount of the guarantee referred to in point (a) of Article 24(2).

Article 22Sharing of information and data between customs authorities

1.

Without prejudice to applicable provisions on data protection in the F2United Kingdom and for the purpose of contributing to eliminating international trade in goods infringing intellectual property rights, F3... the customs authorities of the F4United Kingdom may share certain data and information available to them with the relevant authorities in third countries according to the practical arrangements referred to in paragraph 3.

2.

The data and information referred to in paragraph 1 shall be exchanged to swiftly enable effective enforcement against shipments of goods infringing an intellectual property right. Such data and information may relate to seizures, trends and general risk information, including on goods which are in transit F5... and which have originated in or are destined for the territory of third countries concerned. Such data and information may include, where appropriate, the following:

(a)

nature and quantity of goods;

(b)

suspected intellectual property right infringed;

(c)

origin, provenance and destination of the goods;

(d)

information on movements of means of transport, in particular:

  1. (i)

    name of vessel or registration of means of transport;

  2. (ii)

    reference numbers of freight bill or other transport document;

  3. (iii)

    number of containers;

  4. (iv)

    weight of load;

  5. (v)

    description and/or coding of goods;

  6. (vi)

    reservation number;

  7. (vii)

    seal number;

  8. (viii)

    place of first loading;

  9. (ix)

    place of final unloading;

  10. (x)

    places of transhipment;

  11. (xi)

    expected date of arrival at place of final unloading;

(e)

information on movements of containers, in particular:

  1. (i)

    container number;

  2. (ii)

    container loading status;

  3. (iii)

    date of movement;

  4. (iv)

    type of movement (loaded, unloaded, transhipped, entered, left, etc.);

  5. (v)

    name of vessel or registration of means of transport;

  6. (vi)

    number of voyage/journey;

  7. (vii)

    place;

  8. (viii)

    freight bill or other transport document.

F63.

The Commissioners for Her Majesty’s Revenue and Customs shall make the necessary practical arrangements concerning the exchange of data and information referred to in paragraphs 1 and 2 of this Article.