Customs border measures have become extraordinarily effective in combating piracy. However, information on customs procedures in some of the Mediterranean countries is not readily accessible. In the first part of this article
(INTA Bulletin, Vol. 66 No. 1, Jan. 1, 2011) we looked at Israel and Turkey; this part features information on Greece and Cyprus.
The Greek Customs authorities have been very active in recent years in the combat against counterfeiting. The port of Piraeus is one of the biggest and busiest ports of the Mediterranean area and serves as a reception station for most of the counterfeit goods coming from the east and traveling to Greece and the rest of Europe. Customs officials have shown specific interest and efficiency in applying the legislation and every other legal tool they have at hand in order to protect the right owners, either upon their request through the filing of a petition for Customs intervention or on their own initiative by informing the right owners whenever they locate suspect goods, enabling the right owners to file an urgent petition for Customs intervention.
The work of the Customs authorities has also been substantially supported and completed also by the Special Investigation Service of the Ministry of Finance. This agency is engaged in regular controls of any kind of infringement of intellectual property rights, especially in cases when counterfeit goods escape customs controls and are released in the market.
Statutory Framework and Procedure
Greece is a party to the TRIPS Agreement. The Trademark Law (Law No. 2239/1994) and the Copyright Law (Law No. 2121/ 1993) provide for penal sanctions in cases of fraudulent imitation, infringement and piracy of goods that are protected by IP rights. The Customs Regulation (Regulation 1383/ 2003) has become the most useful tool for the Customs authorities and the IP rights holders.
Still, the system followed by the authorities for the filing of a petition for Customs intervention is rather unsophisticated and costly. The authorities require the applicant to submit as many copies of the complete file and documentation as the number of Customs offices that are involved in inspecting incoming shipments. This results in a massive file consisting of several copied documents, which also need to be translated into Greek. (Customs’ internal communications are not yet conducted online.)
Petition for Customs Intervention
When filing a petition for Customs intervention, the applicant needs to prove his rights, such as trademark, design or patent rights, as well as to submit full documentation regarding the representation of the applicant company and a power of attorney. Once the documentation is examined and found complete, Customs issues a “watching” decision, notifies the applicant or his representative and then distributes the documentation to all local Customs offices for which the applicant has declared interest in watching.
When the Customs authorities come across a suspect shipment, they immediately inform the applicant who has the right to take a sample for examination and then declare through an expert that the goods are actually counterfeit. Meanwhile, the importer has no right to release the goods that are temporarily blocked. If the importer does not agree to abandon the goods and have them destroyed, the applicant must file a legal action to have the goods declared as counterfeit and to obtain a destruction order. If the importer agrees to destruction, the Authorities will attend to the storage of the goods and their destruction in the presence of the rights holder.
According to the Customs Regulation, when applying for a Customs intervention, the rights holder must submit, apart from the documents proving the protected right, any technical information or description of the products, the details of the person who has been designated as the contact person and a declaration that the rights holder will undertake to cover all costs that may occur with the maintenance of the goods under Customs’ control and supervision, such as storage or other costs.
Destruction costs are borne by the rights holder and are payable to the private entities that undertake the destruction work.
Ex officio Action by Greek Customs
When the Customs authorities have a substantial suspicion that specific goods are counterfeit and infringe IP rights, they are authorized to suspend the release of the goods even before the filing of a petition for Customs intervention by the rights holder. Release is suspended for a period of three days so as to allow the rights holder to file a petition for Customs intervention. Customs may also request from the rights holder to provide any necessary information that may help it confirm its suspicion.
Additional Sanctions Available
Greek Customs laws have recently been revised. The Customs Code (Law No. 2960/2001) now provides for administrative sanctions against parties involved in the trade and circulation of counterfeit products. Before this legislative revision, it was possible only to seize and destroy those goods, as monetary sanctions were not available. Under the new law, whenever it is confirmed that IP rights are violated, the authorities have the right to impose a fine on the final receiver (importer) of the goods, ranging from € 2,000 to 20,000, depending on the seriousness of the infringement, namely the quantity of the goods, the frequency of infringing activities, the price difference between the original and the counterfeit goods and the value of the seized goods. The same fine is imposed on the transporter provided he was aware of the infringement of the IP rights.
In recent years, Cyprus Customs has become the government authority that has taken the lead in anticounterfeiting enforcement work in Cyprus. Customs is proactive in the context of inspecting incoming shipments that it identifies through its risk analysis database system and its random checks and notifying the trademark owners when it finds suspected counterfeit goods in such shipments. In addition, Customs is reactive in the context of responding to complaints and/or information provided by brand owners and intelligence obtained from its own investigation department.
Moreover, unlike many other customs authorities, Cyprus Customs will target suspected counterfeit goods both at the importation stage, with seaport and airport importation seizures, and through in-market seizures. Customs will also stop suspected counterfeit goods in transit through Cyprus. Regular customs training seminars, aimed primarily at assisting front-line Customs officers in identifying counterfeits and making them aware of recent tactics and trends by counterfeiters, are organized by both brand owners and the European authorities inside and outside Cyprus.
In practice, the majority of Customs’ importation seizures cases result in the importer’s voluntarily abandoning the goods for confiscation and destruction by Customs, without the need for the trademark owner to bring an action against the importer for trademark infringement and/or passing off. Where such an action is brought and the importer refuses to abandon the counterfeit goods, often the action is settled by the importer before the case goes to court.
Border enforcement mechanisms against unauthorized (counterfeit) goods by Customs utilize the simplified Customs procedure under Council Regulation (EC) No. 1383/2003 (customs action against goods suspected of infringing certain intellectual property rights). The procedure requires a trademark owner to register his trademarks with Cyprus Customs Headquarters. This ensures that Customs is informed of these trademark rights and can intervene whenever counterfeit goods are imported via the official ports (including airports) of Cyprus.
If Customs identifies suspected counterfeit goods it will detain such goods and then will contact the local legal representatives of the trademark owner and provide them with samples of the goods for examination. If the trademark owner decides that the goods are counterfeit, they are seized by Customs. Then either the trademark owner’s local legal representatives must persuade the importer of the counterfeit goods to voluntarily abandon the goods for confiscation and destruction by Customs or, if the importer does not voluntarily abandon these goods, the trademark owner must file an action in the courts for infringement and/or passing off to obtain an order for the destruction of the counterfeit goods.
The costs for storage and destruction of counterfeit goods seized by Cyprus Customs under the simplified Customs procedure usually are borne by the trademark owner, unless the importer can be persuaded to foot the bill for these costs if and when he agrees to voluntarily abandon these goods.
While there are no major differences in the time periods for the enforcement of registered and unregistered trademark rights, sustaining an action based on trademark infringement (registered trademark) is much easier for the trademark owner than meeting the heavier evidentiary burden imposed by a passing-off action (registered and unregistered trademarks). In addition, when compared with a passing-off action, a trademark infringement action can proceed more quickly and thus be more effective in the context of the simplified Customs procedure.
Although there are no specialized courts or other tribunals for trademark enforcement proceedings, where Community trademarks are involved, the administrative presidents of the district courts are competent to deal with such matters at first instance, and on appeal such matters are referred to the Supreme Court.
The recent EU-wide announcement that the allowance for “goods of a non-commercial nature” in personal baggage of travelers entering the EU is to be raised for VAT purposes to € 430 for air and sea travelers and € 300 for land travelers will further exacerbate the growing problem of repeated and organized low-volume imports of counterfeit products into the Republic of Cyprus, particularly Turkish-origin counterfeit goods from the northern, Turkish-occupied part of the island. Counterfeit goods from Turkey flow freely into northern Cyprus, where there is a widespread counterfeiting problem that affects most major brands.
When the Republic of Cyprus joined the EU as a full member on May 1, 2004, EU law (the acquis communautaire) became part of the national law of the Republic of Cyprus. The acquis communautaire will not extend to the northern part of Cyprus, currently occupied by the Turkish army, until the island is unified and the Cyprus problem is solved.
Nevertheless, with the notable exception of imports of counterfeit goods into the Republic of Cyprus from the Turkish-occupied part of the island, the border enforcement mechanisms currently employed by Cyprus Customs (i.e., the simplified Customs procedure under Regulation No. 1383/2003) have proven very effective in preventing counterfeit goods from entering the Republic of Cyprus.
Border measures in the countries of the Mediterranean vary depending on each country’s laws and procedures. Generally, there is room for streamlining procedures and alleviating the burden and the costs that are imposed on trademark owners. It is nevertheless apparent that Customs authorities in all the countries surveyed in this article have taken a pivotal role in combating piracy and appreciate that this combat reflects an important public interest.
Although every effort has been made to verify the accuracy of items in the INTA Bulletin, readers are urged to check independently on matters of specific concern or interest.
© 2011 International Trademark Association