The Goods Infringing Intellectual Property Rights (Customs) Regulations 2004
| Year | 2004 |
2004 No. 1473
CUSTOMS AND EXCISE
INTELLECTUAL PROPERTY
The Goods Infringing Intellectual Property Rights (Customs) Regulations 2004
Made 4th June 2004
Laid before Parliament 7th June 2004
Coming into force 1st July 2004
The Commissioners of Customs and Excise, in exercise of the powers conferred on them by section 2(2) of the European Communities Act 19721, being a Department designated2for the purposes of that subsection in relation to counterfeit and pirated goods, goods infringing a patent, goods infringing a supplementary protection certificate, goods infringing Community plant variety rights and goods infringing plant breeders' rights, designations of origin, geographical indications and geographical designations, hereby make the following Regulations:
Citation and commencement
1. These Regulations may be cited as the Goods Infringing Intellectual Property Rights (Customs) Regulations 2004 and shall come into force on 1st July 2004.
Interpretation
2.—(1) In these Regulations—
“the 1979 Act” means the Customs and Excise Management Act 19793;
“application” means an application under Article 5 of the Council Regulation;
“the Commissioners” means the Commissioners of Customs and Excise;
“Community design” has the meaning given in Article 1(1) of Council Regulation (EC) No 6/2002on Community designs4;
“Community plant variety right” means a right of the kind provided for in Council Regulation (EC) No 2100/1994on Community plant variety rights5;
“the Council Regulation” means Council Regulation (EC) No 1383/2003concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights6;
“the customs and excise Acts” has the meaning given in section 1(1) of the 1979 Act;
“database rights” has the meaning given in regulation 13 of the Copyright and Rights in Databases Regulations 19977;
“decision” means a decision granting an application in accordance with Article 8 of the Council Regulation;
“declarant” has the meaning given in Article 4(18) of Council Regulation (EEC) No 2913/1992establishing the Community Customs Code8;
“design right” has the meaning given in section 213(1) of the Copyright, Designs and Patents Act 19889;
“designation of origin” has the same meaning as in Article 2(1)(c)(iv) of the Council Regulation;
“European patent (UK)” has the meaning given in section 130(1) of the Patents Act 197710;
“geographical designation” has the same meaning as in Article 2(1)(c)(v) of the Council Regulation;
“geographical indication” has the same meaning as in Article 2(1)(c)(iv) of the Council Regulation;
“goods infringing an intellectual property right” has the meaning given in Article 2(1) of the Council Regulation and related expressions shall be construed accordingly;
“patent” means a patent under the Patents Act 1977, or a European patent (UK) which is treated for the purposes of Parts 1 and 3 of the Patents Act 1977 as if it were a patent under that Act;
“plant breeders' right” means a right of the kind provided for in the Plant Varieties Act 199711;
“publication rights” has the meaning given in regulation 16 of the Copyright and Related Rights Regulations 199612;
“registered design” shall be construed in accordance with the Registered Designs Act 194913;
“right-holder” has the meaning given in Article 2(2) of the Council Regulation;
“supplementary protection certificate” has the same meaning as in Article 2(1)(c)(ii) of the Council Regulation;
“working days” has the meaning given in Article 3(1) of Council Regulation (EEC, Euratom) No 1182/1971 determining the rules applicable to periods, dates and time limits14.
(2) For the purposes of these Regulations, any reference in the Council Regulation to “copyright or related right” is to be construed as a reference to “copyright, rights in performances, publication rights or database rights”.
(3) These Regulations shall apply to goods which fall to be treated by virtue of Article 2(3) of the Council Regulation as being goods infringing an intellectual property right; but these Regulations shall not apply to any goods in relation to which the Council Regulation does not apply by virtue of Article 3(1) thereof.
Infringing goods liable to forfeiture
3. Subject to paragraph (2) of regulation 4, goods infringing an intellectual property right which correspond to the description of goods contained in a decision shall, during the period specified in the decision, be liable to forfeiture in any of the situations mentioned in Article 1(1) of the Council Regulation.
Application for action
4.—(1) If, in the course of checks carried out in relation to goods in one of the situations referred to in Article 1(1) of the Council Regulation, and before an application has been lodged by a right-holder or, if lodged, before it has been granted, the Commissioners have sufficient grounds for suspecting that goods infringe an intellectual property right, the Commissioners may, in accordance with Article 4 of the Council Regulation—
(a)
(a) notify a right-holder of the nature of the items and of the actual or supposed number of items and ask a right-holder to provide any information they may need to confirm their suspicions;
(b)
(b) notify a right-holder and a declarant of the possible infringement of the right;
(c)
(c) suspend the release of, or detain, those goods; and
(d)
(d) if they do so suspend or detain, invite the right-holder, in the absence of an existing application, to make an application within three working days of the notification of the suspension or detention.
(2) If at any time during the period of suspension or detention under paragraph (1) an application is granted covering the goods, the decision shall, for the purposes of regulation 3, be taken to have applied at the time the goods entered any of the situations mentioned in Article 1(1) of the Council Regulation.
Decision to cease to have effect
5. A decision shall have no further effect where—
(a) any change, following the making of the application, which takes place in the ownership or authorised use of the intellectual property right specified in the application, is not communicated in writing to the Commissioners; or
(b) the intellectual property right specified in the application expires.
Samples of goods
6. When examining goods in accordance with Article 9(3) of the Council Regulationthe Commissioners may make samples of the goods available to the right-holder at his request for the purposes of analysis and of facilitating subsequent procedures under the Council Regulation or these Regulations.
Detention, seizure, condemnation and forfeiture
7.—(1) Subject to regulation 8, section 13915of, and Schedule 3 to, the 1979 Act (provisions as to detention, seizure and condemnation of goods, etc; forfeiture) shall apply in respect of any goods liable to forfeiture by virtue of regulation 3 as they apply in respect of goods liable to forfeiture under the customs and excise Acts; and, accordingly—
(a)
(a) section 144 of the 1979 Act (protection of officers, etc in relation to seizure and detention of goods, etc) shall apply in respect of seizure or detention effected by virtue of this regulation; and
(b)
(b) sections 145, 146 and 152 to 155 of the 1979 Act16(general provisions as to legal proceedings) shall apply in respect of condemnation proceedings brought by virtue of this regulation.
(2) Where in any condemnation proceedings brought by virtue of paragraph (1) any question arises as to whether or not any goods are or were liable to forfeiture under regulation 3, the burden of proof shall lie upon the party alleging that they are not, or were not, so liable.
Detention and seizure of goods infringing specified intellectual property rights
8.—(1) Regulation 7 shall not apply in relation to goods as regards which the decision specifies as subsisting in those goods any one or more of the following intellectual property rights (whether or not they also appear to infringe any other intellectual property right)—
(a)
(a) a patent;
(b)
(b) a supplementary protection certificate;
(c)
(c) a registered design;
(d)
(d) a design right;
(e)
(e) a Community design;
(f)
(f) a plant breeders' right;
(g)
(g) a Community plant variety right;
(h)
(h) a designation of origin;
(i)
(i) a geographical indication; or
(j)
(j) a geographical designation.
(2) A right-holder may, within 10 working days of his having been notified by the Commissioners of the suspension of release of such goods, or of such goods being detained, give notice in writing to the Commissioners waiving, for the purpose of both the Council Regulation and these Regulations, any intellectual property right of his in the goods, being a right mentioned in sub-paragraphs (a) to (j) in paragraph (1).
(3) The period referred to in paragraph (2) shall be 3 working days in cases where the Commissioners have suspended the release of, or detained, perishable goods.
(4) Where notice has been given in accordance with paragraph (2)—
(a)
(a) any right so waived shall be disregarded, as regards that right-holder, in determining whether the goods fall within paragraph (1); and
(b)
(b) the goods shall be treated for the purposes of...
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