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Custom Recordal of IPRs in Luxembourg


Custom Recordal of IPRs
The Directive 95/46/EC, and the Regulation (EU) No 608/2013 - form the legal basis for Custom Recordal of IPRs (Border Control Measures) in Luxembourg.
Custom Recordal of IPRs is effective both on the import and export of goods.

It is the duty of the customs to ensure surveillance of goods being imported or exported and brought into commerce through different channels. After finding that goods are of infringing nature, the customs may initiate the process of discovering the truthfulness of the facts. It is their role to ensure that the decision of the proceedings is meted out and samples are collected before the destruction of the goods.
The Customs authorities now have the power to destroy small consignments of counterfeited goods without the need for the declarant, holder, or owner thereof to give consent for each instance of destruction. Trademark owners need merely choose the small consignment procedure in their customs application form.

The applications should be submitted to the competent customs department. The applications should be completed using the form referred to in Article 6 and should contain the information required therein in the Regulation EU 608/201.
Concerning small consignments of goods (three items or less), the trademark owner may apply for the simplified procedure, where the Customs will destroy the detained goods without contacting the trademark owner, unless the importer opposes the destruction.
The Commission shall ensure that the following information is required from the applicant in the application form:
(1) Details concerning the applicant;
(2) The status, within the meaning of Article 3, of the applicant;
(3) Documents providing evidence to satisfy the competent customs department that the applicant is entitled to submit the application;
(4) Where the applicant submits the application by means of a representative, details of the person representing him and evidence of that person’s powers to act as representative, in accordance with the legislation of the Member State in which the application is submitted;
(5) The intellectual property right or rights to be enforced;
(6) In the case of a Union application, the Member States in which customs action is requested;
(7) Specific and technical data on the authentic goods, including markings such as bar-coding and images where appropriate;
(8) The information needed to enable the customs authorities to readily identify the goods in question;
(9) Information relevant to the customs authorities’ analysis and assessment of the risk of infringement of the intellectual property right or the intellectual property rights concerned, such as the authorised distributors;
(10) Whether the information provided in accordance with point (7), (8) or (9) of this paragraph is to be marked for restricted handling in accordance with Article 31(5);
(11) The details of any representative designated by the applicant to take charge of legal and technical matters;
(12) An undertaking by the applicant to notify the competent customs department of any of the situations laid down in Article 15;
(13) An undertaking by the applicant to forward and update any information relevant to the customs authorities’ analysis and assessment of the risk of infringement of the intellectual property right(s) concerned;
(14) An undertaking by the applicant to assume liability under the conditions laid down in Article 28;
(15) An undertaking by the applicant to bear the costs referred to in Article 29 under the conditions laid down in that Article;
(16) An agreement by the applicant that the data provided by him may be processed by the Commission and by the Member States; and
(17) Whether the applicant requests the use of the procedure referred to in Article 26 and, where requested by the customs authorities, agrees to cover the costs related to destruction of goods under that procedure.
The competent 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 competent customs department shall provide reasons for its decision and include information on the appeal procedure.
Yes, it is centralized.
No such fee is to be paid.
The period shall be specified by the competent customs department at the time of granting the application and shall not exceed 01 year from the day following the date of adoption of the decision granting the application. It can be extended for an another additional year. There is no limitation.
Where the customs authorities identify goods suspected of infringing an intellectual property right covered by a decision granting an application, they shall suspend the release of the goods or detain them (Article 17).
The holder of the decision shall be liable towards any holder of the goods or declarant, who has suffered damage in that regard. The holder of the decision shall reimburse the costs incurred by the customs authorities, or other parties acting on behalf of the customs authorities.
In the case of an ex officio action, the trademark owner has 04 working days to confirm the infringement. If an application for action has already been submitted, this is extended to 10 working days. This term can be extended with an additional 10 working days under certain conditions.
It is not required in the case of summary procedures and where both the parties have agreed that the nature of the goods is infringing.
Before suspending the release of or detaining the goods, the customs authorities may ask the holder of the decision to provide them with any relevant information concerning the goods.
The customs authorities may also provide the holder of the decision with information about the actual or estimated quantity of goods, their actual or presumed nature and images thereof, as appropriate.
The customs authorities shall notify the declarant or the holder of the goods of the suspension of the release of the goods or the detention of the goods within 01 working day of that suspension or detention. Where the customs authorities opt to notify the holder of the goods and two or more persons are considered to be the holder of the goods, the customs authorities shall not be obliged to notify more than one of those persons.
The customs authorities may take samples that are the representative of the goods.
If the importer does not respond to the request or objects to the destruction, the consignment will be released, unless the trademark owner brings civil proceedings within 10 days.
It may not be needed if both parties, i.e., the infringer (importer) and the rights holder, agree that the goods are infringing in nature.
Other documents as may be demanded by the court may be needed.
The possible remedies awarded by the court include the destruction of goods or release of goods.