Norway implements new Customs Act
By 1 July 2021 latest, Norway will have implemented a new Customs Act with simplified procedures related to destruction of consignments containing counterfeit goods. The amendments are intended to bring Norwegian customs control more in line with EU regulations and practice.
Under today’s Customs Act, there are two options for customs detainment of suspected counterfeit goods, namely:
- ·Following a yearly interim injunction filed by a right holder, which places an obligation on the customs to detain goods bearing specific trademarks, or
- ·Following current Customs Act chapter 15, which places a possibility, but not an obligation, on the customs to detain consignments containing suspected counterfeit goods.
For both incidents, consignments containing counterfeit goods may only be destructed with the importer’s written consent or following a court order confirming IP infringement.
A significant and welcome change with the new Custom Act is removal of the requirement for the importer’s written consent to destruction. Instead, destruction may take place provided the importer does not object to such steps within a set deadline. Additionally, the new regulations introduce a new and more lenient notification system besides interim injunctions.
Last but not least, with the new Customs Act there will be a clear and undisputed prohibition against import of counterfeit goods for private use, provided the exporter can be confirmed as a commercial market player. To support this, the new act includes procedures related to smaller consignments.
The new procedures will be as follows:
1. Application for administrative customs decision for detainment and destruction
Right holders may file an application for administrative decision by the customs for detainment and destruction of goods protected by IPR (trademarks, designs, patent). The administrative decision for detainment may be renewed on a yearly basis.
If such application has been filed, the customs are obligated to look out for and detain consignments containing suspected counterfeits or goods that would otherwise infringe any of the relevant IPR. Depending on the number of items included in the consignment, the customs must proceed as follows:
Small consignments (likely less than 3 items, or total weight of 3 kilos)
- ·Send notification of detainment to the importer, with a 10 day response deadline.
- ·If the importer does not respond or object to destruction within the deadline, the consignment shall be destructed.
- ·The right holder is not informed by the customs but may upon request receive information on consignments that have been destructed following the above procedure.
Other consignments
- ·Send notification to the right holder, with a 10 day deadline to confirm if the goods are counterfeit and consent to destruction. The 10 day deadline may be extended with 10 days.
- ·Send notification to the importer with 10 day deadline. If the importer does not object to destruction within the deadline, the consignment shall be destructed.
Costs
In the application for administrative decision by the customs, the right holder must accept responsibility of costs related to the custom’s destruction of goods. Acceptance of the costs is a requirement for obtaining the administrative decision. In practice, the customs seldom request coverage of costs, but if they do, the right holder may claim compensation of costs from the importer (except for importers of consignments for private use).
2. If application for administrative customs decision has not been filed
The customs may still use the possibility as authorized in the Custom Act chapter 15 to detain suspected counterfeit goods in incidents where no underlying interim injunction or application for administrative custom decision has been filed by the right holder. However, a right holder’s deadline to respond to these ex officio notifications is reduced from 10 days down to 5 days.
The new procedure will be as follows:
- ·The customs may detain goods they suspect are counterfeit.
- ·Customs shall send notification to the right holder with information on the detainment and with a 5 day response deadline.
- ·If the right holder does not obtain the importer’s consent to destruction of goods within the 5 day deadline, the goods will be released to the importer.
However:
- ·Within 4 days from the date of notification, the right holder may file an application for administrative custom decision.
- ·If such application is filed, the procedure under bullet point 1 above will apply accordingly.
For IP holders, the new procedures are welcomed and long overdue, as written consent from the importer to destruction of imported goods is often a cumbersome task that needs to be completed within a very short deadline. With the new rules, there will be a higher probability that counterfeit goods are detained and destructed, which in turn may result in an overall lower number of attempts to import counterfeit products.
Our overall recommendation to our clients would be to replace current interim injunctions with an application for administrative custom decision. Also client’s without interim injunctions, and which has relied on ex officio notifications from the customs, are encouraged to file such applications to avoid hasty decisions and rush-work if an ex officio notification is issued (bullet point 2 above).
Written by
Celine Varmann Jørgensen
Attorney-at-law Senior Partner
Foto: Andrii Leonov (unsplash.com)
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