Objection procedure
The main provision of the Product Piracy Act 2004 is § 4 (1) and (2), which introduces a summary procedure which serves to take some of the burden off the courts, accelerate the procedure, enables the right-holder to protect his right(s) and helps the declarant to avoid costs.
After the goods have been detained or after release has been suspended, both the declarant, carrier (holder pursuant to Article 38 of the Customs Code) or owner of the goods and the right-holder shall be granted the option of waiving the decision that would otherwise have to be made by a court in a criminal or civil proceeding as to whether the goods actually infringe an intellectual property right. This waiver shall be made by both the declarant, carrier or owner of the goods and the right-holder consenting to immediate destruction under customs control pursuant to Article 11 (1) of Regulation (EC) No. 1383/2003.
The declarant, carrier or owner of the goods has the following options of declaring their consent to immediate destruction:
- the consent may be made expressly in writing to the customs authority, or to the right-holder who then passes it on to the customs authority;
- the consent shall also be deemed to be granted if no written objection to destruction is made within ten working days or, in the case of perishable goods, within three working days from service of the notification.
The right-holder must always inform the Klagenfurt Villach customs office in writing of its consent to immediate destruction. Such consent must contain the information that the goods forming the subject matter of the procedure infringe an intellectual property right specified in Article 2 (1) of Regulation (EC) No. 1383/2003.
The following options are available as far as further courses of action are concerned:
If the right-holder refuses to allow immediate destruction, the rest of the procedure shall be governed by Regulation (EC) No. 1383/2003, regardless of whether the declarant, carrier or owner consents to immediate destruction or not. This means that the goods must be released unless the right-holder proves within ten (or 20) working days (or, in the case of perishable goods, within three working days) that he has referred the matter to the competent court.
If the declarant or the carrier or owner of the goods objects within the ten-day period to the goods being destroyed, the right-holder may, by extrajudicial negotiations with the declarant, carrier or owner of the goods, continue to seek immediate destruction under customs control. For this purpose, in addition to delivering his own consent to immediate destruction, he must also deliver to the Klagenfurt Villach customs office within ten (or 20) working days (or, in the case of perishable goods, within three working days) the express written consent of the declarant, carrier or owner of the goods to immediate destruction. If such an agreement with the declarant, carrier or owner of the goods is unsuccessful, or if no effort is made by the right-holder to achieve this, the only option left to him to protect his rights is to initiate criminal or civil proceedings within the aforementioned periods, in the context of which it will be (also) determined whether an intellectual property right has been infringed. If the Klagenfurt Villach customs office is not informed of this within the due period, the goods must be released by the customs authority.
Where all parties agree to immediate destruction, the goods shall, after samples or specimens have been taken for any judicial proceedings, be destroyed at the expense and at the responsibility of the right-holder or otherwise removed from market circulation at no expense to the treasury.
The Ministry
