Border measures available for first time
Border measures for Serbia and Montenegro have come into force following last year's enactment of the Law on Customs and the amendment last month of its implementing decree.
Under the new legislation, an IP owner may file an application for the detention of counterfeit goods with the customs authorities. The applicant must submit details that will enable the customs authorities to (i) ascertain that the applicant's rights are protected in Serbia and Montenegro (eg, certificate of trademark validity issued by the Intellectual Property Office - IPO), and (ii) identify the counterfeits. The applicant should also provide customs with all other available information that may be helpful, such as:
- particulars identifying the consignment or the package;
- the place where the goods are situated or the intended destination, country of origin and/or importation;
- name of the producer and/or importer;
- the scheduled date of arrival or departure of the goods; and
- the means of transport used and the expected border crossing.
The applicant must specify the time period for which it seeks detention. While the law does not specify a maximum detention period, customs authorities consider that it should not exceed six months. Upon the expiry of that period, the application can be renewed. The applicant must pay an administrative fee for each renewal. It must inform the customs authorities immediately if its IP rights cease to be valid in Serbia (ie, they expired or were cancelled).
Customs may require that the applicant deposit a security to cover the costs related to the detention, for which it will be liable if the goods are later released. Detained goods will be released when (i) the applicant fails to initiate court proceedings or obtain a temporary injunction within 15 days of seizure (extendable by another 15 days), or (ii) the goods turn out to be genuine.
If customs can confirm that the goods seized are counterfeits, they will detain them and notify the IP owner, the importer and the IPO. The IP owner may request that customs provide the particulars of the goods' producer, the sender and the receiver of the goods, the importer and the forwarding agent, and the quantity of the goods that have been detained. Goods can be inspected on the customs' premises in the presence of a customs official.
Customs will require a court order to destroy counterfeit goods. However, they will be able to act without an order where it is clear that the goods are counterfeits and (i) customs, despite all their attempts, could not serve the notification on the owner of the goods, importer and/or receiver of the goods, or (ii) although the notification was properly served, the relevant parties did not dispute the goods' detention within 30 days of receipt of the notification.
Instead of destroying counterfeits, customs may give them to charity or for recycling, or remove them in another way from the regular channels of trade. This does not include removing the counterfeited trademarks or re-exporting the goods in unaltered form. The right owner will have a say in choosing the alternative to the goods' destruction.
These provisions apply to import and export of goods as well as to goods in transit. Non-commercial goods intended for personal use or as gifts are not subject to these provisions. Border measures cannot be obtained in parallel import cases.
Gordana Pavlovic, Cabinet Pavlovic Eastern Europe, Belgrade and Brussels
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