New legislation on border measures comes into force

At its session of May 26 2015, the Parliament of the Former Yugoslav Republic of Macedonia enacted a new law on customs measures for the enforcement of IP rights, which was published in the Official Gazette on May 28 2015 and came into force on June 5 2015. The implementing regulations were enacted on June 25 2015 and published in the Official Gazette on June 26 2015, and came into force on June 27 2015.

The new legislation is modelled after EU Regulation 608/2013 concerning customs enforcement of IP rights and represents an effort on Macedonia’s part to harmonise its customs legislation with that of the European Union. Trademark owners must now provide more information in order to establish a customs watch, but the procedure to obtain the destruction of counterfeit goods is simpler and more straightforward.

Several changes to the procedure for establishing a customs watch have been introduced. First, an application can now cover several trademarks belonging to the same trademark owner - in the past, trademark owners had to file a separate application for a customs watch for each of their trademarks. Further, it is no longer necessary to provide a liability declaration as a separate document, as such declaration is now included in the application form. On the other hand, it is expected that the preparatory work will take more time, as trademark owners are now required to provide more details about genuine goods and their channels of trade. It remains to be seen how this will work in practice.

In addition, certain deadlines have been changed. For example, an application for customs watch renewal must be filed 30 working days before the date of expiry of the customs watch (in the past, this deadline was less strict). Further, in case of ex officio seizure of suspected counterfeit goods, the trademark owner has four working days to establish a customs watch (in the past, the deadline was three working days). Moreover, under the simplified procedure, the destruction of the goods at the trademark owner’s expense must be requested within a deadline of 10 working days, which cannot be extended (in the past, an extension was possible).

As under the previous legislation, filing a lawsuit is necessary only if the owner of the goods explicitly objects to the seizure. The deadline is 10 working days from the date of receipt of the customs notification, extendable for another 10 working days. Failure to file a lawsuit or to request the destruction of the goods under the simplified procedure when the conditions for such destruction are fulfilled will result in the release of goods. In addition, Customs has the right to cancel the customs watch and to refuse to re-establish it for a period of one year.

Finally, the new law introduces a special procedure for the destruction of small consignments containing suspected counterfeits - that is, postal or express courier consignments that contain three units or fewer, or weigh less than two kilos. Customs will destroy such consignments without sending a prior notification to the rights holder, at the rights holder’s expense, provided that:

• the goods are not perishable;
• the rights holder has explicitly requested this procedure in its application for customs watch; and
• the declarant or the holder of the goods does not explicitly object to the destruction of the goods within a 10 working-day deadline.

If the declarant or the holder of the goods objects, Customs will inform the rights holder, which then has 10 working days to institute civil proceedings.

Gordana Pavlovic, Cabinet Pavlovic East Europe, Brussels and Belgrade