Customs detention

Counterfeiting constitutes a customs offence under Article 414 of the Customs Code, which provides for :

• The confiscation of fraudulent goods, means of transport and objects used to conceal the fraud, the confiscation of property and assets that are the direct or indirect product of the offence;

• A fine of between one and two times the value of the object of the fraud. When the facts are committed in an organized gang, the fine can be up to ten times the value of the object of fraud;

• a maximum of three years imprisonment. When the acts are committed in an organized gang, the maximum prison sentence is increased to ten years.

Counterfeiting is a scourge against which French and European Union customs agents are actively fighting.

Faced with the considerable development of counterfeiting, it was necessary from a practical point of view and in order to reinforce the legal security of the actors of the market, to find an effective measure to seize as soon as possible the counterfeited goods (whether it is about parcels, fashion articles, posters etc.).

In this context, both the French customs services and the customs services of the other European Union member states have set up a system of application for customs action that allows intellectual property rights holders to facilitate the detention of suspected counterfeit products at customs, as well as the communication of information relating to the importer and the consignee / holder of the products.

In France, customs retention is a system that results from European law (European Union Regulation n° 608-2013) and French law (Intellectual Property Code).

The intellectual property rights protected under this procedure are the following:

• Trademarks, designs and models;
• Designs;
• Copyright and related rights and related rights;
• Patents ;
• Topographies of semiconductor products;
• Utility Models;
• Supplementary protection certificates for medicines and plant protection products;
• Plant varieties ;
• Appellations of origin, geographical indications and geographical denominations.

In concrete terms, the rights holders submit a file to the customs services in which the following details are provided

• The different intellectual property titles concerned;

• A technical and detailed description of the authentic goods;

• Any useful information allowing to identify the authentic products;

• Any useful information on known recurrent counterfeiting cases, if any;

• Contact information for a person to contact in case of seizure of potentially counterfeit products.

In case of detection of suspicious goods, the customs authorities start the procedure known as detention which consists in; 

• To detain the goods for a maximum of 10 working days and 3 days for perishable goods (during this period, the owner of the seized goods cannot request the release of the measure);

• Allow the rights holder to implement :

• • Or a simplified destruction procedure under the control of customs, provided that three conditions are met:
    • The holder of the goods has given his consent or has not objected to the destruction;
    • The owner of the intellectual property rights has requested the destruction ;
    • The owner of the intellectual property rights has proven that his rights have been infringed.

• • Or, to seize the Court territorially competent to obtain authorization to take precautionary measures or to take legal action through civil or criminal proceedings.

• To allow the public prosecutor, who is kept informed by the customs directly, to initiate proceedings.

In law, customs detention is a measure that allows the rights holder to mobilize the disputed products and to build up evidence of the infringement in the context of a dispute against the alleged infringer.

In the context of a dispute, the judge is only bound by the documents produced by the parties.

It is therefore necessary for the plaintiff in the action to have effective means of combating counterfeiting and to meet the legal requirements for the taking of evidence provided for in the Code of Civil Procedure.

In France, 1491 requests for intervention were registered in 2021.

In the same year, more than 9 million counterfeit products were withdrawn from the market by French customs, including approximately 1.7 million body care products and 1.6 million games, toys and sports articles (source).

In practice, it is strongly advised to be assisted by a lawyer specialized in intellectual property to set up applications for customs intervention and to manage possible detention procedures.

Thespecialized lawyer will also accompany you in the framework of the litigation procedure to defend your interests and in particular for the constitution of the file (characterization of the infringement, identification of the author of the litigious acts, proof of the damages suffered, evaluation of the prejudice etc.).

The Bouchara Law firm assists you in particular in :

• The protection and defense of your intellectual property rights before the Offices and Courts in France and abroad ( seizure procedure, infringement action, unfair competition actionetc.);
• The formalities for filing your intellectual property assets(trademarks, designs etc…) including the follow-up of the registration procedure before the Offices(INPI for French applications, EUIPO for European Union applications etc…);
• Monitoring your intellectual property rights;
• The implementation of requests for customs intervention: preparation of the file, personalized training of the competent authorities to allow a more effective detection of potential counterfeits ;
• The management of customsdetention procedures ;
• The constitution of your file in case of litigation (identification of the faults attributable to the alleged infringer, characterization of the prejudice suffered, evaluation of the damages etc.).