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					Intellectual Property Rights (IPR) Manual Customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights

International & Trade Security Branch, Customs Division. E-mail: - customsinternational@revenue.ie

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Contents 1. 2. Definitions .................................................................................................................................. 3 Introduction................................................................................................................................ 4 Application Procedure ............................................................................................................... 4 2.1 National Applications ....................................................................................................... 4 2.2 Community Applications .................................................................................................. 4 Action Required ......................................................................................................................... 5 Suspect goods identified in the course of checks carried out at the request of a right-holder........................................................................................................................ 5 3.2 Suspect goods identified in the course of normal checks ................................................. 5 3.3 Follow Up and Reporting.................................................................................................. 5 Goods Excluded ......................................................................................................................... 6 National IPR Coordinator .......................................................................................................... 6 3.1

3.

4. 5.

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Definitions In the context of this Instruction: 1. Goods infringing an IPR means; (a) “Counterfeit Goods”, namely; (i) goods, including packaging, bearing without authorisation a trademark identical to the trademark validly registered in respect of the same type of goods, or which cannot be distinguished in its essential aspects from such a trademark, and which thereby infringes the trademark-holders rights under Community or National law; (ii) any trademark symbol (including a logo, label, sticker, brochure, instructions for use or guarantee document bearing such a symbol), even if presented separately, on the same conditions as the goods referred to at (i); (iii) packaging materials bearing the trademarks of counterfeit goods, presented separately, on the same conditions as the goods referred to at (i); (b) “Pirated Goods”, namely, goods which are or contain copies made without the consent of the holder of a copyright or related right or design right, regardless of whether it is registered in national law, or of a person authorised by the right-holder in the country of production in cases where the making of those copies would constitute an infringement of that right under Community or National Law; (c) “Moulds or Matrices” which are specifically designed or adapted for the manufacture of goods infringing an IPR shall be treated as goods of that kind, if the use of such moulds or matrices infringes the right-holder’s rights under Community or National law: 2. “Right-holder” means; (a) the holder of a trademark, copyright or related right, design right, patent, supplementary protection certificate, plant variety right, protected designation of origin, protected geographical indication and, more generally, any right referred to under the preceding definitions of counterfeit and pirated goods or; (b) any other person authorised to use any IPR referred to at (a) or a representative of the right-holder or authorised user.

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1. Introduction Council Regulation 1383/2003and Commission Regulation 1891/2004 as amended by Commission Regulation 1172/2007 provide enhanced measures for action against counterfeit or pirated goods by improving procedures and extending their scope to new IPR.Statutory Instrument 344/2005 nominates Revenue as the competent authority for IPR in relation to these Regulations and sets out penalties. The Regulations provide for right-holders to make an application to National Administrations to take action against goods suspected of infringing their rights when the goods are either being imported from or exported to any country outside of the EU. In addition, the Regulations provide greater scope to allow National Administrations initiate action against suspected counterfeit or pirated goods without a prior application being made by a right-holder. The essential nature of the application process is that where the right-holder believes that counterfeit or pirated goods are involved, that person may apply to Revenue to prevent their import, export, reexport or entry for a suspensive procedure. An application can be made at National or Community level. Details of all National and Community applications granted will be sent to the regions/LCD/IPD. 2. Application Procedure 2.1 National Applications National applications must be lodged with International and Trade Security Branch, Customs Division, Nenagh, Co. Tipperary. The format for this application is set out in Annex 1 of Commission Regulation 1891/2004and may be submitted in written or electronic form. When an application is granted, it will remain valid for one year. On expiry of this period, the right-holder must submit a further application to extend that period. An application must contain all the information needed to enable the goods in question to be readily recognised. In particular, it must contain an accurate and detailed technical description of the goods, any specific information the right-holder may have concerning the type or pattern of fraud and the name and address of any contact person appointed by the right-holder. It must also contain proof of ownership of the right in question. 2.2 Community Applications Where the applicant is the right-holder of: a Community Trademark; a Community Design Right; a Community Plant Variety Right; a Designation of Origin or Geographical Indication; or a Geographical Designation protected by the Community, that right-holder may, in addition to requesting action by the Administration in the Member State in which it is lodged, request action by the Administration in one or more other Member States. In such a case, a Community application must be submitted. The application can be submitted in either written or electronic form and it is set out in Annex 11 Of Commission Regulation 1891/2004. In Ireland the application should be submitted to International and Trade Security Branch, Customs Division, Nenagh. Community applications must also contain the same level of descriptive detail as is required in the case of National applications. Where a Community application is granted, it is the responsibility of the right-holder to forward that information, with any other information and any translations that may be necessary, to the Administration in the Member States in which the applicant has requested action. Community applications, when granted, will remain valid for one year. On expiry of this period, the right-holder must submit a further application to extend that period.

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3. 3.1

Action Required Suspect goods identified in the course of checks carried out at the request of a right-holder. The entry of the goods should be monitored in accordance with the terms of the application in question. To facilitate the identification of goods, suitable arrangements should be made including the insertion of appropriate profiles on the AEP system, for the period of the application in question. Where goods entered appear to infringe an IPR covered by an application they are to be detained and the right-holder and the person who entered the goods are to be informed. In addition, the detention should be reported, immediately, to the IPR Co-ordinator, Investigation and Prosecutions Division, Investigations Co-ordination Unit, 3rd Floor, Block D, Ashtowngate, Navan Road, Dublin15. The right-holder is to be provided with a sample of (or asked to view) the goods and requested to confirm in writing whether or not the goods are counterfeit or pirated, giving reasons by reference to the characteristics of the goods or their packaging or otherwise. The person who entered the goods should also be afforded the opportunity to inspect them. This person’s name should not be divulged to the right-holder. 3.2 Suspect goods identified in the course of normal checks In the course of normal checks, if goods are discovered which appear to infringe an IPR, but are not the subject of an application, they are to be detained. The right-holder whose IPR is suspected of being infringed and the person who entered the goods are to be informed. In addition, the detention should be reported, immediately, to the IPR Co-ordinator at the address above. The detention, which can only be for a period of 3 working days, is to allow the right-holder an opportunity to lodge an application with International and Trade Security Branch, Customs Division, Nenagh, Co. Tipperary. If an application is granted, the procedure as set out in the third paragraph of 3.1 above should be applied. If an application is not lodged within the 3 working days referred to, the goods are to be released provided that all customs formalities have been complied with. 3.3 Follow Up and Reporting Where goods, the subject of an application, have been detained, a right-holder has 10 working days to confirm that the suspect goods infringe an IPR under National law. In the absence of this confirmation the goods will be released provided that all customs formalities have been complied with. The 10-day working period may be extended by a maximum of 10 further working days if considered necessary. In the case of perishable goods suspected of infringing an IPR this period is 3 working days and this period may not be extended If the goods are subsequently seized, a written report setting out all the facts shall be forwarded immediately to Anti-Fraud Unit, Bridgend, Co. Donegal in accordance with standing instructions on the reporting of seizures. A copy of this report should also be sent to the IPR Co-ordinator, at the address above. To facilitate the requirement of quarterly reporting to the Commission of goods seized under these provisions, the report in each case must include the following information: The name of the right-holder, a description of the goods and the brand name of the IPR infringed; For each item, the quantity of goods detained or seized, their customs status, the type of IPR infringed, the means of transport used; and Whether commercial or passenger traffic was involved and whether the procedure was initiated in the course of normal checks, or specific checks covered by an application for action.

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4. Goods Excluded The following goods are excluded from the terms of these provisions: Goods bearing a trademark with the consent of the holder of that trademark or goods that have been manufactured with the consent of the right-holder; and Goods of a non-commercial nature contained in travellers’ personal luggage within the limits laid down in respect of relief from customs duty. 5. National IPR Coordinator The Investigations Co-ordination Unit of the Investigation and Prosecutions Division will perform the function of IPR Co-ordinator in order to assist staff in the implementation of IPR procedures. The role of this Unit will be to: act as a single contact point between Revenue and right-holders; act as a single contact point for operational personnel who detect goods suspected of infringing IPR; collate IPR seizure data on a national basis for forwarding to DG Taxud and also arrange for input on CEN (WCO database); represent Revenue as an expert in the field of IPR at national and international conferences/fora and in dealings with the media; keep up to date on international alerts, seizures and trends and promote awareness of current issues to operational personnel on a national basis; and promote pro-activity and develop and arrange for implementation of IPR risk analysis profiles. The contact details for the IPR Co-ordinator are as follows: Mary O’Dwyer, IPR Co-ordinator, Investigation and Prosecutions Division, Investigations Coordination Unit, 3rd Floor, Block D, Ashtowngate, Navan Road, Dublin15. Tel: 01 8277557 (VPN: 77557) Fax: 01 8277484 e-mail: mydwyer@revenue.ie

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