Is Custom Recordal of Intellectual Property Rights (IPRs) available in Netherlands?
Is Custom Recordal of IPRs compulsory in Netherlands?
Yes, the four-day period gives the rights holder time to submit an application for action against counterfeit goods (as set out in Article 5 of the EU Customs Regulation).
Is it an effective measure to stop the infiltration of illegal and counterfeit products in Netherlands?
Which law forms the legal basis for Custom Recordal of IPRs (Border Control Measures) in Netherlands?
The (EU) 608/2013 forms the legal basis for Custom Recordal of IPRs (Border Control Measures) in Netherlands.
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 may take action against counterfeiting either ex officio or upon an application by the rights holder.
Is there a procedure to record IP with the customs department/authority? If yes, then kindly explain it in brief.
Under the EU Customs Regulation, a rights holder may apply for action by the customs authorities in any EU member state against suspected counterfeited or pirated goods. The application form is defined in and attached to the EU Customs Implementing Regulation.
In the Netherlands, applications are submitted to and processed by Douane Noord, based in Groningen.
What documents are to be submitted along with the application for Custom Recordal of IPRs?
Subject to the application for action being rejected, the rights holders must provide the Customs authority (on filing the application for action) with information that will enable it to distinguish genuine goods from counterfeit and/or pirated goods. This information can relate to the original goods, such as their method of storage, packaging and/or transport, or to previously intercepted counterfeit goods. The Customs is known to carefully store all intelligence provided and to make it available at all relevant entry points, such as Amsterdam’s Schiphol airport and Rotterdam port.
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?
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.
Does the customs department/authority have a centralized system or the Custom Recordal is required to be done with each port of entry in Netherlands by land, sea, and air?
Yes, the process is centralized.
Is there an online system for Custom Recordal in Netherlands?
What is the official fee for Custom Recordal in Netherlands?
The applicant shall not be charged a fee to cover the administrative costs resulting from the processing of the application.
What is the term of Custom Recordal of IPRs? Can it be further renewed?
At the time of granting an application, the competent customs department shall specify the period during which the customs authorities are to take action.That period shall begin on the day the decision granting the application takes effect, and shall not exceed 01 year from the day following the date of adoption.
The extended period during which the customs authorities are to take action shall run from the day following the date of expiry of the previous period and shall not exceed 01 year.
Does the customs department/authority have a right to conduct raids and seize the counterfeit goods within Netherlands?
In which scenario does the customs department/authority suspend the clearance of imported goods?
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).
Who bears the liabilities and expenses related to suspension of the release of infringing goods?
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 customs authorities.
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 (03 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?
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.
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?
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 representative of the goods.
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?
If the importer does not respond to the request or objects to the destruction, the consignment will be released. In such circumstances it is necessary that the trademark owner brings civil proceedings within 10 days.
Before disposal/destruction of infringing goods, does the rights holder need to submit a ‘no objection’ or concurrence document?
It may not be needed if both parties, i.e., the infringer (importer) and the right-holder agree that the goods are infringing in nature.
Are there any disadvantages of Custom Recordal of IPRs in Netherlands? 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?
Other documents as may be demanded by the court may be needed.
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 or release of goods.
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?