Council Regulation 1383/2003/EC (Customs Regulation)

In order to combat counterfeiting and piracy, the Council approved regulation 1383/2003/EC 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.

The Customs Regulation applies to:

counterfeit goods
pirated goods
patents
supplementary protection certificates
designs and models
copyright and related rights
trademarks
designations of origin
new plant varieties
geographical indications
any mould or matrix designed or adapted for the manufacture of goods infringing an intellectual property right

In particular, counterfeit goods are defined as goods or trade mark symbols or packaging presented separately, bearing without authorisation a trademark identical to another trademark validly registered, or which cannot be distinguished in its essential aspects and which thereby infringes the trademark-holder's rights. As regards pirated goods, they are considered as goods that are or contain copies made without the consent of the holder of a copyright or related right or design right.

According to this regulation, the right-holder may lodge a detailed written application to the competent customs department when goods are found to be infringing in order to request the intervention of the customs authorities. The application may be addresses to the customs authorities of one or more Member States if the infringement involves a Community trademark, designs or model, a Community protection, a new plant variety, a designation of origin, or a geographical indication or designation protected by the Community. The law applicable to the case of suspected infringing goods is that of the Member State where the goods were found. The customs authorities shall decide in a period of time (not exceeding one year) set by the competent customs department and the law applicable to the case is that of the Member State where the goods were found. Goods found to infringe an intellectual property right may not be:

brought into the customs territory of the Community;
withdrawn from the customs territory of the Community;
released for free circulation;
exported;
re-exported;
placed under a suspensive arrangement, in a free zone or free warehouse.

If the customs authorities, before an application is lodged, have sufficient grounds to suspect that goods are infringing an intellectual property right, “they may suspend the release of the goods or detain them for a period of three working days from the moment of receipt of the notification by the right-holder […] in order to enable the right-holder to submit an application for action”. Moreover, the Directive provides for the possibility for the Member States to set a simplified procedure enabling the customs authorities to destruct the suspected infringing goods with the right-holder's agreement but without proceedings.

In 2010, the European Commission launched a consultation in order to review the Customs Regulation. The aim is to strengthen the fight against dangerous counterfeits and to extend the applicability of the regulation towards other intellectual property rights (e.g. unregistered trade marks).