2004R1891 — EN — 06.10.2007 — 001.001

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Amended by:









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COMMISSION REGULATION (EC) No 1891/2004

of 21 October 2004

laying down provisions for the implementation of Council Regulation (EC) No 1383/2003 concerning 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







Article 1

For the purposes of Article 2(2)(b) of Regulation (EC) No 1383/2003, hereinafter ‘the basic Regulation’, the right-holder or any other person authorised to use the right may be represented by natural or legal persons.

The persons referred to in the first paragraph shall include collecting societies which have as their sole or principal purpose the management or administration of copyrights or related rights; groups or representatives who have lodged a registration application for a protected designation of origin or a protected geographical indication; and plant breeders.

Article 2

1. If an application for action within the meaning of Article 5(1) of the basic Regulation is lodged by the right-holder himself, the proof required under the second subparagraph of Article 5(5) shall be as follows:

(a) in the case of a right that is registered or for which an application has been lodged, proof of registration with the relevant office or proof that the application has been lodged;

(b) in the case of a copyright, related right or design right which is not registered or for which an application has not been lodged, any evidence of authorship or of the applicant’s status as original holder.

A copy of registration from the database of a national or international office may be considered to be proof for the purposes of point (a) of the first subparagraph.

For protected designations of origin and protected geographical indications, the proof referred to in point (a) of the first subparagraph shall, in addition, consist in proof that the right-holder is the producer or group and proof that the designation or indication has been registered. This subparagraph shall apply mutatis mutandis to wines and spirits.

2. Where the application for action is lodged by any other person authorised to use one of the rights referred to in Article 2(1) of the basic Regulation, proof shall, in addition to the proof required under paragraph 1 of this Article, consist in the document by virtue of which the person is authorised to use the right in question.

3. Where the application for action is lodged by a representative of the right-holder or of any other person authorised to use one of the rights referred to in Article 2(2) of the basic Regulation, proof shall, in addition to the proof referred to in paragraph 1 of this Article, consist in his authorisation to act.

A representative, as referred to in the first subparagraph, must produce the declaration required pursuant to Article 6 of the basic Regulation, signed by the persons referred to in paragraphs 1 and 2 of this Article, or a document authorising him to bear any costs arising from customs action on their behalf in accordance with Article 6 of the basic Regulation.

Article 3

1. The documents on which applications for action are made pursuant to Article 5(1) and (4) of the basic Regulation, the decisions referred to in Article 5(7) and (8) and the declaration required pursuant to Article 6 of the basic Regulation must conform with the forms set out in the Annexes to this Regulation.

The forms shall be completed by electronic or mechanical means, or legibly by hand. Handwritten forms shall be completed in ink and in block capitals. Whatever method is used, forms shall contain no erasures, overwritten words or other alterations. Where the form is filled in electronically, it shall be made available to the applicant in digital form on one or more public sites that are directly accessible by computer. It may subsequently be reproduced on private printing equipment.

Where additional sheets are attached, as referred to in boxes 8, 9, 10 and 11 of the form on which the application for action provided for in Article 5(1) is to be made out, or in boxes 7, 8, 9 and 10 of the form on which the request for action provided for in Article 5(4) is to be made out, they shall be deemed to be an integral part of the form.

2. Forms for applications for action under Article 5(4) of the basic Regulation shall be printed and completed in one of the official languages of the Community designated by the competent authorities of the Member State in which the application for action has to be submitted, together with any translations that may be required.

3. The form shall be made up of two copies:

(a) the copy for the Member State in which the application is lodged, marked ‘1’;

(b) the copy for the right–holder, marked ‘2’.

The application forms, duly completed and signed, accompanied by one extract of the form for each Member State indicated in box 6 of the form, as well as the documentary proof referred to in boxes 8, 9 and 10, shall be presented to the competent customs department, which, after accepting the form, shall retain it for at least one year longer than its legal period of validity.

If the extract of a decision granting an application for action is addressed to one or more Member States pursuant to Article 5(4) of the basic Regulation, the Member State which receives the extract shall complete without delay the ‘acknowledgement of receipt’ section of the form by indicating the date of receipt and shall return a copy of the extract to the competent authority indicated in box 2 of the form.

So long as his application for Community action remains valid, the right-holder may, in the Member State where the application was originally lodged, enter a request for action to be taken in another Member State not previously mentioned. In such cases, the period of validity of the new application shall be the period remaining under the original application, and it may be renewed in accordance with the conditions applying to the original application.

Article 4

For the purposes of Article 5(6) of the basic Regulation, the place of manufacture or production, the distribution network or names of licensees and other information may be requested by the department responsible for receiving and processing applications for action in order to facilitate the technical analysis of the products concerned.

Article 5

If an application for action is lodged in accordance with Article 4(1) of the basic Regulation before expiry of the time limit of three working days and accepted by the customs service designated for that purpose, the time limits referred to in Articles 11 and 13 of that Regulation shall be counted only from the day after the application is received.

If the customs service informs the declarant or holder of goods that the goods are suspected of infringing an intellectual property right and that, pursuant to Article 4(1) of the basic Regulation, they have been detained, or their release suspended, the time limit of three working days shall be counted only from the time the right-holder is notified.

Article 6

In the case of perishable goods, the procedure for suspension of release or for detention of the goods shall be initiated primarily in respect of products for which an application for action has already been lodged.

Article 7

1. Where Article 11(2) of the basic Regulation applies, the right-holder shall notify the customs authority that proceedings have been initiated to determine whether, under national law, an intellectual property right has been infringed. Except in the case of perishable goods, if insufficient time remains to apply for such proceedings before the expiry of the time-limit laid down in the first subparagraph of Article 13(1) of the basic Regulation, the situation may be deemed an appropriate case within the meaning of the second subparagraph of that provision.

2. If an extension of ten working days has already been granted under Article 11 of the basic Regulation, no further extension may be granted under Article 13 thereof.

Article 8

1. Each Member State shall inform the Commission as soon as possible of the competent customs department, referred to in Article 5(2) of the basic Regulation, responsible for receiving and processing applications for action from right-holders.

2. At the end of each calendar year, each Member State shall send the Commission a list of all the written applications for action under Article 5(1) and (4) of the basic Regulation, giving the name and details of each right-holder, the type of right for which each application was submitted, and a summary description of each product concerned. The applications that have not been granted shall be included in that list.

3. In the month following the end of each quarter, each Member State shall send the Commission a list, by product type, giving detailed information on the cases in which the release of goods has been suspended or goods have been detained. The information shall include the following details:

(a) the name of the right-holder; a description of the goods; if known, the origin, provenance and destination of the goods; the name of the intellectual property right infringed;

(b) for each item, the quantity of goods whose release was suspended or which were detained; their customs status; the type of intellectual property right infringed; the means of transport used;

(c) whether commercial or passenger traffic was involved and whether the procedure was initiated ex officio or as the result of an application for action.

4. The Member States may send the Commission information concerning the real or estimated value of the goods for which release has been suspended or which have been detained.

5. At the end of every year, the Commission shall, in an appropriate manner, communicate to all Member States such information as it receives pursuant to paragraphs 1 to 4.

6. The Commission shall publish the list of departments within the customs authority, as referred to in Article 5(2) of the basic Regulation, in the C series of the Official Journal of the European Union.

Article 9

Applications for action lodged before 1 July 2004 shall remain valid until their legal expiry date and shall not be renewed. However, they must be accompanied by the declaration required under Article 6 of the basic Regulation, the model for which is set out in the Annexes to this Regulation. The declaration shall release any deposit and fee payable in the Member States.

Where proceedings brought before the competent authority on a matter of substance before 1 July 2004 are still under way on that date, the deposit shall not be released before the close of those proceedings.

Article 10

Regulation (EC) No 1367/95 is repealed. References to the repealed Regulation shall be construed as references to this Regulation.

Article 11

This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.

It shall apply from 1 July 2004.

This Regulation shall be binding in its entirety and directly applicable in all Member States.









ANNEX I

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ANNEX I-A

NOTES ON COMPLETION

I. OBLIGATORY INFORMATION ON RIGHTS AND ABILITY TO ACT

(a) Where the holder of the right makes the application himself: — in the case of a right that is registered or for which an application has been lodged, proof of registration with the relevant office or lodging of the application, — in the case of a copyright, related right or design right which is not registered or for which an application has not been lodged, any evidence of authorship or of his status as original holder.

(b) Where the application is made by any other person referred to in Article 2(2)(b) authorised to use one of the rights referred to in Article 2(1)(a), (b) and (c) of the basic Regulation, in addition to the proof required under point (a) of this Article, the document by virtue of which the person is authorised to use the right in question.

(c) Where a representative of the holder or of any other person referred to in Article 2(2)(a) and (b) authorised to use one of the rights referred to in Article 2(1)(a), (b) and (c) of the basic Regulation applies, in addition to the proof required under points (a) and (b) of this Article, proof of authorisation to act. The natural or legal person who fills in box 3 of the Application for action must, in all cases, be the one who will provide the documents foreseen in box 11 of the Application for action.

(d) Box 5 contains all geographical indications. Protected designation of origin (PDO) and protected geographical indication (PGI) means the official indications according to Council Regulation (EEC) No 2081/92 (OJ L 208, 24.7.1992, p. 1), Commission Regulations (EC) No 1107/96 (OJ L 148, 21.6.1996, p. 1) and (EC) No 2400/96 (OJ L 327, 18.12.1996, p. 11). ‘Geographical designations for spirituous beverages’ means the official designations according to Regulation (EEC) No 1576/89. Individual producers as well as groups or their representatives are entitled to make an application.

(e) Registration and specifications are required when an application is made: for protected designation of origin and protected geographical indication.

II. WHAT MUST THE APPLICATION FOR ACTION CONTAIN?

An application for action can be used by the right-holder, free of charge, either as a preventive measure or where he has reason to think that his intellectual property right or rights have been or are likely to be infringed. The application must contain all the information needed to make the goods in question readily recognisable by the customs authorities, and in particular:

— an accurate and detailed technical description of the goods,

— any specific information the right-holder may have concerning the type or pattern of fraud,

— the name and address of the contact person appointed by the right-holder,

— the undertaking required of the applicant by Article 6 of the basic Regulation and proof that the applicant holds the right for the goods in question.

— the right-holders must imperatively return the proof of receipt of the notification which was addressed to them by the Customs Service, according to Articles 4 (ex officio) and 9. It must be done immediately after having received this notification. The legal deadlines (three to 10 working days) start from the moment of receipt of the notification. It is imperative that the right-holder, as soon as he is contacted by the customs authorities, immediately confirms the receipt of the notification,

— within the meaning of the basic Regulation ‘working day’ (Council Regulation (EEC, Euratom) No 1182/71 (OJ L 124, 8.6.1971, p. 1)) is considered every day other than public holidays, Saturdays and Sundays. Moreover, the calculation of working days as included in Articles 4 and 13, has to be carried out taking into account the fact that the day of receipt of the notification is not included. The deadlines to be taken into account within the meaning of the basic Regulation commence therefore as from the day after the receipt of the notification.

The application for action can be submitted electronically if an electronic data exchange system is available. In all other cases, the form is to be completed by mechanical means or in legible handwriting and must not contain erasures or overwriting.

III. HOW TO FILE AN APPLICATION FOR ACTION

The right-holder must submit his application for action to the relevant office referred to in box 2 of the form. On receipt of the application, the competent customs office will process it and inform the applicant of its decision by writing within 30 working days. If the office refuses the application by reasoned decision, the applicant has the right of appeal. The period during which the customs authorities will take action is set at one year, renewable annually.

IV. EXPLANATIONS OF THE MAIN BOXES TO BE FILLED IN BY THE APPLICANT

Box 3 : Name, address and capacity of the applicant. Within the meaning of Article 2(2), the applicant may be the right-holder himself, a person authorised to use the intellectual property right or a designated representative.

Box 4 : Status of the applicant. Tick the appropriate box.

Box 5 : Type of right concerned by the application for action. Tick the appropriate box.

Boxes 6 and 7 : Contact details for the applicant's contact person dealing with administrative matters should be entered in Box 6. Box 7 is for the contact details of the person who would be responsible for meeting the customs authorities to discuss technical details of the goods detained. The person concerned must be easily contactable at short notice.

Boxes 8, 9 and 12 :

Box 8 is for specific and accurate information which would enable the customs authorities to identify the authentic goods correctly and for any information the right-holder may possess concerning the type or pattern of fraud (documents, photos etc.).

The information should be as detailed as possible to allow the customs authorities to identify suspect consignments simply and effectively using risk analysis principles.

Various types of information should be entered in these boxes to help improve customs intelligence on products and patterns of fraud. Additional supporting details can be provided such as: the pre-tax value of the legal goods, the location of the goods or their intended destination, particulars identifying the consignment or packages, the scheduled arrival or departure date of the goods, the means of transport used, the identity of the importer, exporter or holder.

Box 11 : The natural or legal person who fills in box 3 of the Application for action must, in all cases, be the one who will provide the documents foreseen in box 11 of the Application for action.

Box 13 : By signing this box, the right-holder certifies that he accepts the terms of the Regulation and his obligations.









ANNEX I-B

DECLARATION IN ACCORDANCE WITH ARTICLE 6 OF COUNCIL REGULATION (EC) No 1383/2003

I, the undersigned …

right-holder, within the meaning of Article 2(2) of Regulation (EC) No 1383/2003 (hereinafter ‘the basic Regulation’, of the intellectual property rights certified by the attached documents, hereby undertake in accordance with Article 6 of the Regulation to assume liability towards the persons involved in a situation referred to in Article 1(1) in the event that a procedure initiated pursuant to present Regulation is discontinued owing to an act or omission on my part or in the event that the goods in question are subsequently found not to infringe an intellectual property right.

— I hereby undertake to pay all costs incurred under the basic Regulation by keeping goods under customs control pursuant to Article 9, and where applicable Article 11, including costs occasioned by the destruction of goods infringing an intellectual property right pursuant Article 17.

— I confirm that I have taken note of Article 12 of the basic Regulation and undertake to notify the department indicated in Article 5(2) of any alteration to or loss of my intellectual property rights.

Done at … on …/…/20…

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(Signature)

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ANNEX II

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ANNEX II-A

NOTES ON COMPLETION

I. OBLIGATORY INFORMATION ON RIGHTS AND ABILITY TO ACT

(a) Where the holder of the right makes the application himself: — in the case of a right that is registered or for which an application has been lodged, proof of registration with the relevant office or lodging of the application, — in the case of a copyright, related right or design right which is not registered or for which an application has not been lodged, any evidence of authorship or of his status as original holder.

(b) Where the application is made by any other person referred to in Article 2(2)(b) authorised to use one of the rights referred to in Article 2(1)(a), (b) and (c) of the basic Regulation, in addition to the proof required under point (a) of this Article, the document by virtue of which the person is authorised to use the right in question.

(c) Where a representative of the holder or of any other person referred to in Article 2(2)(a) and (b) authorised to use one of the rights referred to in Article 2(1)(a), (b) and (c) of the basic Regulation applies, in addition to the proof required under points (a) and (b) of this Article, proof of authorisation to act. The natural or legal person who fills in box 3 of the Application for action must, in all cases, be the one who will provide the documents foreseen in box 10 of the Application for action.

(d) Box 5 contains all geographical indications. Protected designation of origin (PDO) and protected geographical indication (PGI) mean the official indications designated in accordance with Regulations (EEC) No 2081/92, (EC) No 1107/96 and (EC) No 2400/96.‘Geographical indications for wines’means indications within the meaning of Regulation (EC) No 1493/99.‘Geographical designations for spirituous beverages’ means the official designations according to Regulation (EEC) No 1576/89. Individual producers as well as groups and their representatives are entitled to make an application.

(e) Registration and specifications are required when an application is made: for protected designation of origin and protected geographical indication.

II. WHAT DOES THE APPLICATION FOR ACTION HAVE TO CONTAIN?

(Article 5(4): ‘Where the applicant is the holder of a Community trademark, a Community design, a Community plant variety right or a designation of origin or geographical indication protected by the Community, an application may, in addition to requesting action by the customs authorities of the Member State in which it is lodged, request action by the customs authorities of one or more other Member States’).

An application for action can be used by the right-holder, free of charge, either as a preventive measure or where he has reason to think that his intellectual property right or rights have been or are likely to be infringed. The application must contain all the information needed to make the goods in question readily recognisable by the customs authorities, and in particular:

— an accurate and detailed technical description of the goods,

— any specific information the right-holder may have concerning the type or pattern of fraud,

— the name and address of the contact person appointed by the right-holder,

— the undertaking required of the applicant by Article 6 of the basic Regulation and proof that the applicant holds the right for the goods in question.

The application for action can be submitted electronically if an electronic data exchange system is available. In all other cases, the form is to be completed by mechanical means or in legible handwriting and must not contain erasures or overwriting.

— The right-holders must imperatively return the proof of receipt of the notification which was addressed to them by the Customs Service, according to Articles 4 (ex officio) and 9. It must be done immediately after having received this notification. The legal deadlines (three working days — ten working days) start from the moment of receipt of the notification. It is imperative that the right-holder, as soon as he is contacted by the customs authorities, confirms immediately the receipt of the notification.

— Within the meaning of the basic Regulation ‘working day’ (reference to Regulation (EEC) No 1182/71) is considered every day other than public holidays, Saturdays and Sundays. Moreover, the calculation of working days as included in Articles 4 and 13, has to be carried out taking into account the fact that the day of receipt of the notification is not included. The deadlines to be taken into account within the meaning of the basic regulation commence therefore as from the day after the receipt of the notification.

III. HOW TO FILE AN APPLICATION FOR ACTION

The right-holder must submit his application for action to the relevant office referred to in box 2 of the form. On receipt of the application, the competent customs office will process it and notify the applicant in writing of its decision within 30 working days. If the office refuses the application by reasoned decision, the applicant has the right of appeal. The period during which the customs authorities will take action is set at one year, renewable annually.

IV. EXPLANATIONS OF THE MAIN BOXES TO BE FILLED IN BY THE APPLICANT

Box 3 :

Name, address and capacity of the applicant. Within the meaning of Article 2(2), the applicant may be the right-holder himself, a person authorised to use the intellectual property right or a designated representative.

The natural or legal person who fills in box 3 of the application for action must, in all cases, be the one who will provide the documents foreseen in box 10 of the application for action.

Box 4 : Status of the applicant. Tick the appropriate box.

Box 5 : Type of right concerned by the application for action. Tick the appropriate box.

Box 6 : Tick the box for the Member States in which action by the customs authorities is requested. You are strongly advised to file an application for action in every Member State.

Boxes 7, 8 and 9 :

These boxes are very important. Accurate, practical details must be provided to enable the customs authorities to quickly identify the goods detained (photos, documents, etc.).

Specific information relating to the type or pattern of fraud will facilitate risk analysis. The information should be as detailed as possible to allow the customs authorities to identify suspect consignments simply and effectively using risk analysis. These boxes should be used to provide customs with more accurate intelligence in relation to products and so improve its understanding of trafficking. Additional supporting details can be provided such as: the pre tax value of the legal goods, the location of the goods or their intended destination, particulars identifying the consignment or packages, the scheduled arrival or departure date of the goods, the means of transport used, the identity of the importer, exporter or holder.

Boxes 11 and 12 : Contact details for the applicant’s contact persons dealing with administrative matters and questions of technical expertise should be entered in Boxes 11 and 12. Box 12 is for the contact details of the person who would be responsible for meeting the customs authorities to discuss technical details of the goods detained. The person concerned must be easily reachable at short notice.

Box 14 : By signing this box, the right-holder certifies that he accepts the terms of the regulation and his obligations.

Box 15 :

The duly completed and signed form, together with as many extracts as the number of Member States indicated in Box 6, must be submitted to the customs office specified in Article 5(2) of the basic regulation. The application for action may have to be translated into the language of the Member States where it is to be filed.

The customs offices ►M1 ————— ◄ are at your disposal for any further information.









ANNEX II-B

DECLARATION ACCORDING TO ARTICLE 6 OF COUNCIL REGULATION (EC) No 1383/2003

I, the undersigned …

right-holder, within the meaning of Article 2(2) of Council Regulation (EC) No 1383/2003 hereinafter ‘the basic Regulation’, of the intellectual property rights certified by the attached documents, hereby undertake in accordance with Article 6 of the Regulation to assume liability towards the persons involved in a situation referred to in Article 1(1) in the event that a procedure initiated pursuant to present Regulation is discontinued owing to an act or omission on my part or in the event that the goods in question are subsequently found not to infringe an intellectual property right.

— I hereby undertake to pay all costs incurred under the basic Regulation by keeping goods under customs control pursuant to Article 9, and where applicable Article 11, including costs occasioned by the destruction of goods infringing an intellectual property right pursuant Article 17.

— I hereby certify that the undertaken is given in every Member State in which the decision granting the application applies. I further agree to bear any translation costs required.

— I confirm that I have taken note of Article 12 of the basic Regulation and undertake to notify the department indicated in Article 5(2) of any alteration to or loss of my intellectual property rights.

Done at … on …/…/20…

…

(Signature)

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