Is Custom Recordal of Intellectual Property Rights (IPRs) available in Portugal?
Is Custom Recordal of IPRs compulsory in Portugal?
Is it an effective measure to stop the infiltration of illegal and counterfeit products in Portugal?
Which law forms the legal basis for Custom Recordal of IPRs (Border Control Measures) in Portugal?
The Regulation (EU) 608/2013 forms the legal basis for Custom Recordal of IPRs (Border Control Measures) in Portugal.
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)
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 the samples are collected before destruction of the goods.
Is there a procedure to record IP with the customs department/authority? If yes, then kindly explain it in brief.
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.
What documents are to be submitted along with the application for Custom Recordal of IPRs?
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) The 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) The 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 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.
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 Portugal by land, sea, and air?
Yes, it is centralized.
Is there an online system for Custom Recordal in Portugal?
What is the official fee for Custom Recordal in Portugal?
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 Portugal?
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 the 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 the 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, unless 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 rights holder, agree that the goods are infringing in nature.
Are there any disadvantages of Custom Recordal of IPRs in Portugal? 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 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?