In 2020, fake goods with a value of almost €2 billion were seized in the EU's internal market and at external borders. At EU's external borders, customs authorities seized fake products with a retail value of €778 million. Such goods deprive initiators of the reward for the work they have created, and pose a threat to health and safety, amongst others.
Customs authorities are able to enforce Intellectual Property Rights (IPRs) at the EU borders due to their physical presence at the entrances and exits and their exclusive right to carry out checks on goods entering or exiting the customs territory of the EU. However, co-operation is key. In order to effectively carry out their task, Customs need the active engagement of the right-holders themselves. This can be done mainly through proper information provided only by the right-holders. In this way, Customs will more easily identify IPR infringing goods and take action in significantly greater rates.
The right-holder is able to defend and enforce his rights by requesting from Customs to detain and/or destroy IPR infringing goods. This is where the Application for Action (AFA) comes into play. By completing and lodging this form with the competent customs office, the right-holder will provide all relevant information for action to be taken in accordance with Regulation (EU) 608/2013 of the European Parliament and of the Council. The AFA can be a national or EU application depending on the IPR's basis. An EU AFA when granted in one EU Member State has the same legal status in all other Member States, where action was requested for in that application. All AFAs are registered by customs in the EU database COPIS and are valid for 1 year at a time. In addition, Customs authorities have the power to act ex officio if they suspect an IPR infringement. This provides for greater freedom to act instigating complementary protection.
The AFA is based on the right-holders willingness to disclose any information it may have, as well as information on scheduled deliveries. This information should be as detailed as possible and should include information on the destination, the name of the office where the goods are to be imported or exported, the name and address of the importer, supplier, manufacturer, etc.
It is important to note that, all applicants who want to proceed with an AFA must have an EORI number (Economic Operators Registration and Identification Number). In order to obtain an EORI number, applicants need to contact Customs for EORI registration in the country where they are established.
In addition, two forms have been developed as inseparable from an AFA form. The aim is to provide a mechanism to notify Customs within the relevant timeframe and to be concise as regards important information or general trends concerning suspected IPR infringing goods.
These forms are:
- New Trends form to be used to notify customs about new trends
- Red Alert form to be used to notify customs about urgent, specific information
It is imperative that the right-holders be vigilant and extra careful and that the Customs have an abundance of information to help them achieve the best outcome.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.