As a specialized law firm, we are available to you nationwide as a competent contact if your goods have been confiscated at the border. It is important to react quickly and avoid typical mistakes. If you do not react or react incorrectly, an investigation is often initiated by the public prosecutor’s office. Have you been contacted by customs about a border confiscation? Then we are happy to help you.
What is the purpose of border seizure?
A border seizure serves to protect goods in the event of product and brand piracy and is now even described as the most effective instrument against this. If brand counterfeits are imported from abroad, customs can intercept and confiscate them if there is suspicion that they are counterfeit, provided the owner of the property rights has previously submitted an application. The suspected goods, which could infringe on property rights such as trademark rights of a third party, are then checked.
In principle, a distinction is made between the national border seizure procedure and the Community border seizure procedure under the Product Piracy Regulation (PPVO)
We would be happy to advise you on your options in the event of a border seizure and would like to give you an initial overview below.
What is the difference between border seizure in Germany and in the EU?
While European border seizures under the PPVO are only carried out in trade with third countries, German border seizures for intra-Community trade in goods must be based on national German law.
The national border seizure procedure is less important, as it only occurs during hinterland controls, accidental finds or checks at trade fairs. In addition, the majority of counterfeits are now produced in Asia and are therefore imported from outside.
In addition, the national procedure is limited to obvious infringements of intellectual property rights, which causes increasing difficulties for customs due to increasingly better imitations. In contrast, for the procedure under the PPVO, the suspicion of an infringement is sufficient.
In the case of parallel imports, the PPVO does not apply; in this case, the applicant must contact national authorities.
What legal remedies do I have in the event of a border seizure under national law?
As the person authorized to dispose of the goods, you can lodge an objection to the seizure. This will prevent the confiscation and protect your rights. The objection must be addressed to the responsible customs authority, i.e. the authority that ordered the seizure. The deadline for this is two weeks and begins with the delivery of the notification of the seizure of the goods.
Customs then informs the applicant, the so-called holder of the property rights, of this objection. The applicant can then decide whether to maintain his application to seize the goods in question or to withdraw it. If he maintains his application, he must submit a court decision (usually an interim injunction) within two weeks of receiving notification of the objection. If he does not do this, customs can lift the seizure. If the court decision is not available by this time, he can apply for an extension of a further two weeks. The consequence of these applications is the storage of the goods or a restriction on disposal.
If you decide to withdraw the objection, a notification of withdrawal of the objection is sufficient so that the court decision becomes invalid and the goods can be destroyed.
If you, as the owner of the goods, do not object within two weeks, customs will order the confiscation of these goods.
You also have the option of objecting to the seizure by filing a request for a court decision. This must be filed in accordance with Section 62 of the OWiG and will also be treated as an objection as long as the objection period has not expired.
Since the confiscation (= original acquisition of ownership by the state) only takes place after the objection period has expired, an objection against this confiscation can be lodged within two weeks of service in accordance with Section 67 of the OWiG. This must be lodged with the issuing authority (responsible main customs office).
According to national regulations, you are entitled to claim damages against the applicant, provided the conditions are met. This is aimed at compensating for the damage caused by the seizure. A court ruling is required that the goods do not infringe the relevant property right. Another requirement is that the applicant has maintained his application despite being informed of the objection.
The border seizure procedure under the PPVO
First, there must be a suspicion that the seized goods infringe the intellectual property rights of a rights holder. The customs seizure then takes place by removing the goods from circulation.
The declarant or owner of the goods must then be informed within one working day of the suspension of release or detention. The rights holder is also informed immediately of the customs action and has the opportunity to inspect the goods or evidence is sent to him.
After the owner of the goods has been informed of the seizure of his goods, he must, within a period of 10 days from receipt of the notification or, in the case of perishable goods, within three working days of the detention of the goods, notify the seller whether the goods in question should be destroyed or whether he objects to such destruction.
You now have 10 working days to respond. If you agree to the destruction or at least there is no explicit objection and the rights holder also agrees to this destruction and confirms the infringement, the goods will be destroyed after a destruction notice has been issued. This process is called the “simplified destruction procedure”.
The declarant or owner of the goods can object to the destruction. The decision holder will then be informed immediately and must initiate proceedings within the current period of 10 working days in which the infringement must be proven. The goods will then be held by customs until a final judgment is made on the destruction or release of the goods.
In addition, a German administrative practice has developed whereby the person entitled to dispose of the goods can lodge an appeal with the German customs authorities against the decision to destroy or against the customs destruction notice. This must be done within one month of notification of the decision to destroy. This appeal then examines whether the simplified destruction procedure was formally carried out correctly by the customs authorities. If this was not carried out correctly, the owner of the goods has the option of filing a lawsuit against the customs authorities.
What our clients say
Top advice. Fair prices.
Trademark lawyer
Dr. David Slopek has more than 10 years of intensive practical experience gained in Germany and abroad. After completing his studies, obtaining a Master of Laws and a doctorate at Heinrich-Heine-University-Düsseldorf, he was admitted to the bar by the Düsseldorf Bar Association in 2012. He learned his legal craft from scratch in a leading international law firm, for which he worked for around seven years in Alicante and Hamburg. In 2016, the Hanseatic Bar Association of Hamburg awarded him the title of specialist lawyer for intellectual property law. In addition to his professional qualifications, he has also published extensively, with over 80 specialist publications. He and his team will advise you with expertise and experience in all matters of trademark law.
