Detentions and seizures at the borders are amongst the most valuable and effective weapons available to brand owners in the fight against counterfeits. Turkey is a key, strategic country in this regard. It is a known manufacturer and exporter of many types of counterfeit goods and a key transit post. It also has land borders with the European Union (EU).
A new Customs Regulation, which came into force on 7 October 2009 and which significantly improves the processes and procedures is, therefore, particularly welcome. The highlights of the new Regulation are as follows.
Annual Application
Previously, applications had to be renewed monthly. Now, renewals are only required annually. It is, however, still necessary to file applications individually with each Customs post you wish to cover. This is not as arduous as it might first appear since most rights holders will limit their applications to a small number of key ports.
It should soon be possible to file electronically, which will obviously simplify things.
Coverage
The Regulation makes it clear that Customs may detain/seize imports, exports and goods in transit. Previously it was not clear if exports and goods in transit were included.
Declaration/Undertaking
The application needs to be supported by a declaration/undertaking which, in effect, indemnifies Customs for any costs resulting from a seizure based upon flawed information provided by the rights holder. This mirrors the procedure in the EU. Previously rights holders had to put up a bond/guarantee in respect of every consignment seized, which was an obvious disincentive.
'Simplified Procedure'
Rights holders can seek the consent of the owner of the goods (the importer/exporter/declarant) that the goods be destroyed. Such consent needs to be received within 10 working days of notification of the initial detention (extendable for a further 10 working days). This is a similar procedure to that provided for in the EU Regulation. Unfortunately, silence from the owner of the goods will not suffice to allow destruction.
In the absence of consent to destruction the rights holder must commence a civil action and obtain a cautionary attachment (interim injunction) within the 10 (plus 10) day deadline. In the absence of this the goods will be released. This is a slight backwards step from the previous procedure whereby it was sufficient for a rights holder to have initiated a criminal complaint.
Storage and Destruction Costs
Destruction costs are to borne by the owner of the goods. It appears, however, that storage costs may still be for the brand owner to bear.
Our Comment
This is, in theory, a very significant improvement on the previous procedures. There will be some uncertainty while Customs are getting used to the new regime, and some aspects will require guidance from an implementing regulation. We will not truly know how much of an improvement this is until we have a few months experience of working on cases with Customs. All in all, however, this is a welcome and promising step forward.
