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10 May 2021
By 1 July 2021 a new Customs Act will be implemented in Norway, with simplified procedures relating to the destruction of consignments which contain counterfeit goods. The amendments aim to align Norwegian customs control with EU regulations and practice.
Under the existing Customs Act, two options exist for customs detainment of suspected counterfeit goods – namely:
For both incidents, consignments which contain counterfeit goods may be destroyed only with the importer's written consent or following a court order that confirms IP infringement.
One significant and welcome change under the new Customs Act is the removal of the requirement for the importer's written consent for the destruction of consignments which contain counterfeit goods. Instead, destruction may take place provided that the importer does not object to such steps within a set deadline. Further, the new regulations introduce a more lenient notification system besides interim injunctions.
The Customs Act will also introduce a clear and undisputable prohibition of the import of counterfeit goods for private use, provided that the exporter can be confirmed as a commercial market player. To support this, the new act includes various procedures relating to smaller consignments, as set out below.
Application for administrative customs decision for detainment and destruction
Rights holders may file an application to obtain an administrative customs decision regarding the detainment and destruction of goods protected by IP rights (ie, trademarks, designs and patents). Administrative decisions for detainment may be renewed on a yearly basis.
If such an application has been filed, Customs must look out for and detain consignments which contain suspected counterfeits or goods that would otherwise infringe any relevant IP rights. Depending on the number of items included in the consignment, Customs must proceed as set out below.
For small consignments (likely less than three items or a total weight of 3kg)
Customs must proceed as follows:
For other consignments
Customs must proceed as follows:
In its application for an administrative customs decision, rights holders must accept responsibility for the costs relating to Customs' destruction of goods. Acceptance of such costs is a requirement for obtaining an administrative decision. In practice, Customs seldom request coverage of costs, but if they do, rights holders may claim compensation of costs from the importer (except for importers of consignments for private use).
If application for administrative customs decision has not been filed
Customs may still use the procedure established in Chapter 15 of the Customs Act to detain suspected counterfeit goods where the rights holder has not filed an underlying interim injunction or an application for an administrative custom decision. However, the rights holder's deadline to respond to such ex officio notifications has been reduced from 10 days to five days.
The new procedure will be as follows:
However, within four days of the date of notification, the rights holder may file an application for an administrative customs decision. If such an application is filed, the procedure set out in " Application for administrative customs decision for detainment and destruction" will apply.
For IP owners, the new procedures are long overdue and will be welcomed – written consent from the importer for the destruction of imported goods is often a cumbersome task with a tight deadline. Under the new rules, counterfeit goods are more likely to be detained and destroyed, which in turn may result in fewer attempts to import counterfeit products overall.
IP owners should replace interim injunctions with applications for administrative customs decisions. Further, IP owners without interim injunctions which have relied on ex officio notifications from Customs should file such applications to avoid hasty decisions if ex officio notifications are issued.
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