With the exception of border measures (cf. 15.-19. below) there is no provision for administrative proceedings relating to violations of rights, cf., also question 9 above.
[Answer 9: Proceedings relating to violation of an intellectual property right are not carried out as administrative proceedings, unless it is a question of seizing at a border items which violate rights (cf. 15.-19. below).]
[Answer 15: On request, and on payment of a security by the right holder, on their importation or exportation, articles violating a right are subject to seizure by the customs authorities if the violation of the right is obvious. That said, this applies in trade with other Member States of the European Community only where customs checks take place. The following articles are liable to be seized: -a product that infringes a patent, a utility model or the topography of a microelectronic semiconductor product (section 142a subsection 1 of the Patent Law, section 25a subsection 1 of the Utility Model Law, section 9 subsection 2 of the Semiconductor Products Protection Act in conjunction with section 25a of the Utility Model Law); -material relating to plant variety protection afforded in Germany (section 40a subsection 1 of the Varieties Protection Law); -goods which have been illegally furnished with a protected trademark or commercial sign, unless Council Regulation (EC) No. 3842/86 of 1 December 1986 laying down measures to prohibit the release for free circulation of counterfeit goods (OJ EC No. L 357, p.1) is applicable (section 146 subsection 1 of the Trade Mark Law), and goods which have been illegally furnished with a protected indication of geographical origin (section 151 of the Trade Mark Law); -duplicates the manufacture or dissemination of which is in violation of a protected utility model right or copyright (section 14a subsection 3 of the Designs Law in conjunction with section 111a of the Copyright Law and section 111a subsection 1 of the Copyright Law). With the exception of section 151 subsection 1 of the Trade Mark Law, these provisions do not cover transit if no sales transactions are effected in Germany. Importation by private individuals is also not covered if it is unlikely that the imported goods will be subsequently brought into commercial exchange in Germany (cf. the grounds of the Federal Government's Draft Bill, Federal Parliament Publication 11/4792 dated 15 June 1989, p. 41). The provisions contain no express exclusion of items violating rights which have been brought into commercial exchange in a third country either by or with the consent of the right holder.]
[Answer 16: The procedure is the same for all rights. The right holder, or a person empowered by the latter, may file an application with the Regional Finance Office for seizure at the border. Local jurisdiction is in accordance with the place of residence or the company headquarters of the applicant. Foreign applicants should approach Munich Regional Finance Office (Sophienstr. 6, D-80333 München, Tel.: +49/89/59952313, Fax: +49/89/59951150). There are no requirements as regards the form and deadlines. The applicant must however document the right which has been violated and his or her entitlement to file an application, as well as describe the articles which are to be seized. If no shorter period was applied for, the application is valid for two years and may be extended on request once this deadline has expired. Depending on the administrative effort and the economic significance, the fee for the application is between DM 60 and 600. In this respect, the relevant statutes refer to section 178 of the Fiscal Code (Abgabenordnung) and section 12 subsection 1 second sentence of the Customs Charges Ordinance (Zollkostenverordnung - ZKostO). In addition, storage costs (section 10 of the Customs Charges Ordinance) and expenses (section 12 subsection 2 of the Customs Charges Ordinance in conjunction with section 10 subsection 1 Nos. 1, 5 and 8 of the Administrative Costs Ordinance - VwKostO) are levied. Applicants are to provide a security which should be such as to cover a claim for damages on the part of those concerned by the seizure. If all preconditions for seizure are met, the Regional Finance Office instructs the customs offices to examine packages, and where appropriate to seize them. As soon as seizure is ordered, the customs authority is to inform without delay the applicant and the person who is entitled to dispose of the seized items. The applicant must also be informed of the origin, the number and the place of storage of the articles which have been seized, as well as of the name and address of the person entitled to dispose of the items. The latter is afforded the opportunity to inspect the goods unless this constitutes a violation of business or company secrets. The person entitled to dispose of the items may file an objection with the customs authority issuing the order within two weeks after the seizure order has been served. The objection does not have to contain grounds. If no objection is received, the customs authority orders confiscation of the items which have been seized. If the person entitled to dispose of the items files an objection, the applicant is thus informed without delay. If the applicant does not thereupon withdraw his application, he must submit an enforceable court decision within two weeks after the notification is served ordering the storage of the seized goods or a restraint on disposal. As a rule, this will be a provisional disposition which is issued in accordance with the procedure described above (at 12.). If the applicant demonstrates that the court decision has been applied for but that he has not yet received it, seizure is upheld for a maximum of two more weeks. If within this time limit the applicant is unable to submit a court decision, the customs authority rescinds seizure. The person entitled to dispose of the items may oppose seizure and confiscation by the remedies allowed by the fixed penalty procedure under the Law on Minor Offences (Gesetz über Ordnungswidrigkeiten - OWiG). This person may file an objection against confiscation with the customs authority issuing the order within a week after the notification has been served (section 67 of the Act on Administrative Offences). In order to examine seizure, a court decision may be applied for at the authority issuing the order, or in urgent cases from the competent Local Court which has jurisdiction. An immediate appeal lies from the decision of the Local Court. If (1) the seizure proves to have been unjustified from the outset, and (2) the applicant has not withdrawn the application in spite of the objection from the person entitled to dispose of the items, the applicant is obligated to pay damages to the latter. In addition, a claim for damages may emerge from section 945 of the Code of Civil Procedure if the applicant has obtained a provisional disposition the ordering of which has subsequently proven to have been unjustified from the outset (see above).]
[Answer 17: There are no statistics relating to the duration and cost of border seizure proceedings. The time limits laid down in the law emerge from the previous answer describing the procedure.]
[Answer 18: In general, the customs authorities may only act upon a request. In accordance with Article 4 of the above-mentioned EEC Ordinance No. 3295/94 which is directly applicable in Germany, they may also act ex officio under certain circumstances.]
[Answer 19: As has been stated in the answers to questions 16 and 17, the customs authorities may seize items which violate intellectual property rights if the violation of the right is obvious. If no objection is made to seizure, the customs authorities order confiscation of the items which have been seized. If the confiscation order has not been challenged by the person entitled to dispose of the items within the time limit for objections, as a rule the seized items are destroyed by the customs authority.]