One of the most effective ways to prevent the importation of goods that violate intellectual property rights, including copyrights and rights to trademarks, designs and models, is through the customs authorities that delay and prevent the entry of the infringing goods at ports and border crossings.
Request for delay of goods
The trigger for the detention of goods at customs can be a reasoned complaint submitted to customs, by the owner of the rights in the intellectual property identifying that his position has been violated, or, alternatively, a situation where the customs employees themselves suspect that a violation has been committed and initiate the move.
It will be emphasized that it is very important to formulate the complaint convincingly and, at the same time, not to give information that may help counterfeiters in the future. Therefore, it is highly recommended to use an intellectual property lawyer with experience and expertise in infringement of rights at this stage.
When submitting the complaint, it is required to attach to it a certificate of registration of the trademark and/or other documents attesting to the property, as well as a photocopy of the suspected infringing goods, or of documents describing them. In the event of a suspected violation of a registered design, the request must be accompanied by as many details as will help the customs officials locate the goods, including: the description of the goods, the details of the importer or the container number of the goods, the estimated date of import, the expected port of entry and more. Also, a copy of the registration of the design in the design register, a detailed description of the design, including photographs of it, and a letter of commitment to indemnify the importer and customs, should they incur damages due to the delay of the goods, must also be attached. If the owner of the rights is represented by a lawyer, a power of attorney must also be attached to the request.
Decision on delay of goods
Upon receipt of the complaint regarding the suspected violation, the customs director works to locate the goods and detain them. If the goods have been located, the person in charge of the seizure unit at customs will determine whether there is any basis for the claim of violation and, if so, orders the detention of the goods for three working days (which can be extended to an additional 3 days under certain circumstances) and the opening of a file to investigate the violation. At the same time, the supervisor will inform the importer and the complainant in writing, and inform the complainant that he must deposit the bank guarantee within 3 working days.
If the person in charge of the seizure unit finds it appropriate that there is no basis for the violation complaint, he will inform the complainant in writing of his refusal to detain the goods.
Whereas in a situation where part of the goods in a shipment is suspected of being in violation and part of it is not suspected of being in violation, customs will delay only the infringing part, unless approval is given by the legal bureau of customs to delay the entire shipment.
It should be noted that the amount of the bond that the complainant must deposit, in the event of goods being delayed, will be determined by the customs representatives, and the complainant may deposit a cash deposit in its place. Also, there is an option to deposit an annual global bond and at the end of the year the bond will be extended or canceled and returned to the complainant – at his request. The purpose of the global bond is to free the complainant from the need to post a separate bond for each violation complaint, and if necessary, customs may request from time to time to increase the amount of the bond.
Checking the samples of the goods
After depositing the bond by the complainant, the customs representatives will hand over the details of the importer and samples of the detained goods and/or photographs thereof. The complainant reserves the right to receive physical samples and the responsibility for testing and covering the costs of testing is his. Upon completion of the inspection, and within 10 days of the arrival of the goods at the latest, the complainant must return the sample to the customs representatives, unless the sample will be used as legal evidence or it was completely destroyed during the inspection.
Handling the delay of goods at the initiative of customs
In cases where it was decided to delay goods following the customs initiative, the customs representative will ask the owner of the rights to submit to them within 3-6 working days a detailed and reasoned opinion as to why the goods violate rights, a letter of commitment to indemnify, and a document of commitment to join as a party to the counterclaim, if a claim for the return of the goods is filed against customs .
Upon receipt of the documents, customs will inform the importer in writing of the seizure of the goods.
If the owner of the rights informs that the goods do not infringe his rights, or if he does not submit the necessary documents on time, the goods will be released from customs.
Filing a lawsuit in court
If, at the end of 10 working days from the delivery of the notification regarding the delay of the goods, the complainant has not filed a claim against the violating importer, the delay will be canceled, except in special cases where additional time is required in order to consolidate the claim or draw up a settlement agreement. The supervisor of the seizure unit has the authority to extend the period by 10 additional days.
If a claim has been submitted to the court, the goods will be detained at customs until the decision is made whether to destroy or release them – in full or subject to certain conditions. Until the decision is made, customs is not allowed to destroy the goods or sell them.
Short forfeiture procedure
When there is a suspicion of a violation of a registered trademark or copyright only, it is within the authority of the person in charge of seizures at customs to decide on a short confiscation procedure in which the goods will be detained at customs for 3-6 working days. During these days the owner of the mark will be asked to check whether there has been a violation of his trademark. If, in the opinion of the owner of the registered trademark, there has indeed been a violation, he will have to submit a reasoned opinion to customs and the importer of the goods to review it. Also, the owner of the mark will be required to undertake to compensate the customs department and/or the importer for the damage caused by the delay, as well as to undertake that if the importer sues the customs, he will join the customs department as an additional defendant.
* * *
*The aforementioned in this article and on the website in general should not be considered as legal advice and the things written in it should not be considered as a substitute for individual legal advice, but a personal opinion and/or a general explanation only. Of course, you should not rely on and/or act in accordance with the above without individual legal advice from an attorney
For any questions on this topic, contact us
אתר מונגש
אנו רואים חשיבות עליונה בהנגשת אתר האינטרנט שלנו לאנשים עם מוגבלויות, וכך לאפשר לכלל האוכלוסיה להשתמש באתרנו בקלות ובנוחות. באתר זה בוצעו מגוון פעולות להנגשת האתר, הכוללות בין השאר התקנת רכיב נגישות ייעודי.
סייגי נגישות
למרות מאמצנו להנגיש את כלל הדפים באתר באופן מלא, יתכן ויתגלו חלקים באתר שאינם נגישים. במידה ואינם מסוגלים לגלוש באתר באופן אופטימלי, אנה צרו איתנו קשר
רכיב נגישות
באתר זה הותקן רכיב נגישות מתקדם, מבית all internet - בניית אתרים. רכיב זה מסייע בהנגשת האתר עבור אנשים בעלי מוגבלויות.