Application for customs action and competent customs authorities
The holder of a right may lodge an application for the suspension of the release of goods with the Enforcement Department of Finnish Customs. Applications shall be completed using the form referred to in Article 6 of the Regulation No 608/2013 and shall contain the information required therein. An application shall for instance include:
- details concerning the applicant e.g. a proof that the applicant is the holder of the right for the goods in question;
- IPRs to be enforced;
- description of the goods and information needed to enable the customs authorities to readily identify them e.g. specific and technical data on the authentic goods, including markings such as bar-coding and images where appropriate;
- request for the application of small consignments procedure provided an applicant wants it to be applied.
Where the competent customs department considers that the application does not contain all the information required it shall request the applicant to supply the missing information within 10 working days of notification of the request.
The customs department shall notify the applicant of its decision granting or rejecting the application within 30 working days of the receipt of the application. In the event of rejection, the customs department shall provide reasons for its decision and include information on the appeal procedure. If the applicant has been notified of the suspension of the release or the detention of the goods by the customs authorities before the submission of an application, the customs department shall notify the applicant of its decision granting or rejecting the application within two (2) working days of the receipt of the application. In Finland, the decision on the initiation of the suspension procedure is made by the Enforcement Department of Finnish Customs.
The new Regulation (EU) 608/2013 provides for the following procedures:
(a) Simplified destruction procedure
The new Regulation makes the so-called simplified destruction procedure compulsory with regards to all infringements of IPRs. The simplified procedure is applied when the right holder has confirmed the infringement and has accepted the destruction of goods within ten (10) working days from the notification of suspension and: (a) the declarant or the holder of the goods agrees to destruction; or (b) even without his/her express consent in case the declarant or the holder of the goods has not explicitly opposed destruction within the prescribed time period of ten (10) working days of the notification of suspension (see Article 23 of the Regulation).
Due to the mandatory nature of the simplified destruction procedure, it is no longer required that the right holder seeks a judgment by default in order to get the goods destructed in case the declarant or the holder of the goods remains passive. If the declarant or the holder of goods instead opposes the destruction of goods, the right holder can either try to negotiate with him/her or ultimately take legal action against him/her at the Market Court.
(b) Procedure related to small consignments
As for small consignments of counterfeit and pirated goods, a specific procedure is introduced by the new Regulation 608/2013. This procedure regarding small consignment goods allows for such goods to be destroyed without the explicit agreement of the applicant i.e. the customs authority does not verify from the right holder that the goods in question infringe his/her IPRs. Instead, the customs authority only informs the declarant or the holder of the goods about the intention to destruct such goods. Small consignments goods can be destructed without the consent of the declarant or the holder of the goods if he/she has not notified his opposition thereto within ten (10) working days of notification of the suspension. In order for this procedure to be applied, it is required that the holder of the suspension decision has requested the use of this procedure in the suspension application (Article 26). A definition of small consignment goods can be found from Article 2(19) of the Regulation.
Right of inspection and information
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 (Article 19). Under Articles 17(4) and 18(5) of the Regulation, 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.
Requirements related to the duration of suspension
The customs authorities shall grant the release of the goods or put an end to their detention, immediately after completion of all customs formalities, where they have not received within ten (10) working days both the written confirmation from the holder of the decision that, in his conviction, an intellectual property right has been infringed and his agreement to destruction, unless those authorities have been duly informed about the initiation of proceedings to determine whether an intellectual property right has been infringed. Except in the case of perishable goods the customs authorities may extend the period by a maximum of 10 working days upon a duly justified request by the holder of the decision in appropriate cases (Articles 23(1) and 23(4)).
Where the customs authorities have been notified of the initiation of proceedings to determine whether a design, patent, utility model, topography of semiconductor product or plant variety has been infringed, the declarant or the holder of the goods may request the customs authorities to release the goods or put an end to their detention before the completion of those proceedings. The customs authorities shall release the goods or put an end to their detention only if the declarant or the holder of the goods has provided a guarantee that is of an amount sufficient to protect the interests of the holder of the decision, the authority competent to determine whether an intellectual property right has been infringed has not authorized precautionary measures and all customs formalities have been completed (Article 24 that corresponds to Article 53.2 of the TRIPS Agreement).
Security or equivalent assurance
No security or administrative payments are requested from the applicant.
Indemnification of the importer and the owner of the goods
The owner of the goods may bring an action for recovery of damages resulting from the unfounded detention of the goods.