Acts of counterfeiting can be punished on the basis of criminal and customs law. Customs authorities are involved in the fight against counterfeiting and smuggling and are empowered to detain, seize, and destroy counterfeit goods. They intervene in criminal and customs proceedings to impose heavy fines on offenders. Owners of trademarks, designs, patents, and other intellectual property rights can apply to customs upstream, including through surveillance measures. What are these customs procedures? What to do in case of customs detention or seizure? The lawyers at Arénaire Avocats have developed strong expertise in customs procedures relating to counterfeiting.
Surveillance, detention, and destruction of counterfeiting goods by the customs authorities
These customs procedures are governed by the European Regulation n° 608/2013 of 12 June 2013. Thus, customs interventions are harmonised and standardised throughout the European Union.
The application for surveillance of intellectual property rights
To contain imports and exports of products infringing your intellectual property rights, it is possible to request the intervention of the customs authorities beforehand. Surveillance applications must comply with a strict formalism, contain precise information, and are limited in time. In order to set up an effective protection, our lawyers accompany and assist you in filing applications for surveillance of your intellectual property rights with the customs authorities.
Customs detention or release
In the event of a suspected import or export of counterfeit goods, the customs administration contacts the rights owner to examine the products and confirm, or not, the counterfeiting. Pending a response from the rights owner, the goods are temporarily detained. This is an infringement of the free movement of goods and is therefore subject to very strict rules on form and timing.
We act as agents for the owners of intellectual property rights and are contacted directly by customs. Our responsiveness enables us to meet the deadlines and work in conjunction with the customs administration. We also accompany the owners of the detained goods to defend their rights and, if necessary, to contest the counterfeiting nature of the products.
Destruction of counterfeiting goods
If the products detained are indeed counterfeiting goods, the customs authorities are entitled to destroy them under certain conditions. We closely monitor the entire procedure to ensure that no counterfeiting goods are circulating in the European Union.
If you are the owner of the goods to be destroyed and you dispute their counterfeiting nature, we will assist and represent you in opposition to the destruction.
Customs seizure of counterfeiting goods
The customs authorities are entitled to carry out unannounced interventions on the premises of companies.
The purpose of these measures is to identify suspected counterfeiting products and to collect evidence, such as samples, accounting documents, import declarations, etc. They will be used as evidence in criminal, customs and/or civil litigation.
Our lawyers are experts in customs procedures and represent you in these seizures.
Criminal customs litigation
At the end of the customs investigation, if the infringing nature of the goods is confirmed by the owner of the intellectual property rights, the customs authorities, in conjunction with the prosecutor, prosecute the owner of the goods. Three actions can then be taken jointly before the criminal court:
- The prosecutor prosecutes the accused, who may be sentenced to a criminal fine or even imprisonment.
- The customs authorities intervene in the proceedings to obtain the confiscation of the goods and the payment of an often very high customs fine.
- The owner of the infringed intellectual property rights can act as plaintiff to obtain compensation for damages.
Whether you are prosecuted for importing smuggling goods or are the owner of infringed rights, our lawyers provide legal counsel and represent you in all proceedings before the criminal courts. If necessary, we can assist you in negotiations and in the settlement of disputes through a transaction.
Arénaire Avocats: expert lawyers in criminal customs proceedings
After more than ten years of practice in customs and counterfeiting law, we have chosen to share our expertise. Thibault Lentini and Pierre Massot are the co-authors of the JurisClasseur booklet n°7531, entitled “Customs and counterfeiting – Customs powers in the fight against counterfeiting and proceedings initiated following customs intervention”, published in September 2019.
Do you need legal counsel and assistance from competent lawyers on customs procedures related to counterfeiting? Contact us and we will discuss your situation and needs and determine together what solutions we can provide.