Is Custom Recordal of Intellectual Property Rights (IPRs) available in Austria?
Is Custom Recordal of IPRs compulsory in Austria?
Is it an effective measure to stop the infiltration of illegal and counterfeit products in Austria?
Which law forms the legal basis for Custom Recordal of IPRs (Border Control Measures) in Austria?
The EU Customs Regulation, its implementing regulation, and the Product Piracy Act govern border seizures in Austria.
Is Custom Recordal of IPRs effective on import or export of goods or both?
Custom Recordal of IPRs is effective both on the import and export of goods.
What is the role of the customs department/authority? (Kindly give 2-3 points)
The customs officials act on the information given to them, which enables identification and possible detention of goods. They have the power to destroy the said consignment carrying infringing goods after further confirmation by the parties.
Is there a procedure to record IP with the customs department/authority? If yes, then kindly explain it in brief.
Generally, the rights holders must file a motion with the Customs requesting it to inspect the suspected goods to determine whether they are counterfeit and to seize them if they are.
What documents are to be submitted along with the application for Custom Recordal of IPRs?
The documents to be submitted are as follows:
Evidence of ownership; and
Additional information on identifying features and distribution channels to help identify the counterfeit goods.
Is the applicant required to execute a bond (against all liabilities and to bear the costs towards destruction, demurrage, and detention charges incurred till the time of destruction or disposal) with the customs department/authority for Custom Recordal of IPRs?
What is the time frame for the customs department/authority to notify the applicants whether their application (for custom recordal of IPRs) is registered or rejected?
There is no fixed timeframe.
Does the customs department/authority have a centralized system or the Custom Recordal is required to be done with each port of entry in Austria by land, sea, and air?
Yes, it is centralized.
Is there an online system for Custom Recordal in Austria?
What is the official fee for Custom Recordal in Austria?
What is the term of Custom Recordal of IPRs? Can it be further renewed?
A border seizure order is valid for 01 year and can be repeatedly renewed for the same term. The Customs will also act on the basis of an EU border seizure order.
Does the customs department/authority have a right to conduct raids and seize the counterfeit goods within Austria?
In which scenario does the customs department/authority suspend the clearance of imported goods?
The customs authority suspends the clearance of imported goods upon suspecting that the goods may be infringing in nature.
Who bears the liabilities and expenses related to suspension of the release of infringing goods?
The costs of destruction are borne by the rights holder, although he or she may later seek to recover them from the counterfeiter.
Is the IP rights holder authorized to examine the goods, the clearance of which has been suspended?
Is the IP rights holder authorized to request the information about the personal details of the importer and additional crucial piece of information concerning the consignment, which has been suspended from clearance?
Can the importer or the authorized representative of the goods, which have been suspended from clearance, request the information of the IP rights holder in question?
Within what timeframe the IP rights holder needs to confirm whether the goods are counterfeit or original after suspension?
10 days (or 3 days, if the goods are perishable).
Is the IP rights holder required to produce an injunction order or evidence of court proceedings to detain the goods?
If the answer to the above question is 'Yes,' then what is the deadline to do so?
10 days. It may be further extended to 10 working days.
Does the IP rights holder need to pay an additional bond for the detention of goods?
If the answer to the above question is 'Yes,' then to what extent and how is the valuation calculated?
In the scenario where the goods detained or seized are found to be infringing the IPRs of the IP rights holder in question, what steps does the customs department/authority take?
In the event of a customs seizure, the rights holder and the consignee or declarant of the shipment will be notified. The rights holder may request the names and addresses of the consignor and consignee, as well as data regarding the origin and provenance of the goods. If the declarant or holder of the goods and the rights holder both agree, the detained counterfeits may be destroyed promptly (at the expense of the rights holder). Otherwise, within 10 working days of notification (which can be extended for an additional 10 working days), the rights holder must initiate a legal action, either civil or criminal, to prevent the detained goods from being released. For perishable goods, any action must be filed within 03 working days.
Does the customs authority invite the rights holder and importer to join the proceedings? Are there any consequences of failure to join such proceeding, if any?
Yes. Failure to join such proceedings will lead to suspension of detention of goods.
Before disposal/destruction of infringing goods, does the rights holder need to submit a ‘no objection’ or concurrence document?
Are there any disadvantages of Custom Recordal of IPRs in Austria? If yes, then kindly give 2-3 points?
If an IP rights holder is not satisfied with the action taken by the customs department/authority, can he/she initiate separate legal proceedings to enforce his/her IP rights?
To establish if the goods are counterfeit before the court of justice, will the affidavit by the IP rights holder suffice or any other documentary requirement is there?
Any documents as may be requisitioned by the court shall be provided for by the said party to the suit.
Upon conclusion of proceedings before the Court of Justice, what are the possible remedies awarded by the court?
The possible remedies awarded by the court include the destruction of goods under the supervision of the Customs. For keeping the administrative efforts and costs low, the new EU Customs Regulation has introduced a special procedure for the destruction of goods in small consignments, which allows for early destruction of the contents of postal or courier shipments of less than 02 kilograms or not more than 03 units, even without the consent of the rights holder.
With the rights holder’s consent, the goods can also be made available to charitable institutions.
Finally, importing or exporting counterfeits may constitute a tax offence, with a penalty of up to €4,000 (€15,000 in the event of wilful commission), as well as forfeiture of the counterfeits.
Is the rights holder under an obligation to inform customs authority when his Intellectual Property Right ceases to be valid/ he ceases to be the owner of such IPR?