Purchasers should be able to challenge Customs’ destruction of small packages of fake goods, MEPs say

MEPs voted to back a resolution to introduce the right as part of the European Parliament's proposed changes to the European Commission's draft regulation on Customs Enforcement of Intellectual Property Rights. The EU's Council of Ministers would have to back the changes in order for them to be introduced in their current draft.

"Parliament amended the proposal to ensure that the person who would have received the goods has 5 days in which to object to their destruction and that buyers who bought them in good faith do not also have to pay the cost of destroying them," a statement by the European Parliament said.

Under the European Parliament's proposals, Customs officials would be able to destroy 'small consignments' of fake goods where such an agreement is in place with rights holders from the outset of enforcement. The Parliament proposes that 'small consignments' be defined as "a single package of commercial nature" which either "includes fewer than three items" or has a total weight of less than 2 kilograms.

The purpose of the provision is to avoid Customs officials having to seek rights holders' permission to destroy every single small consignment of fake goods they come across "in order to reduce to the minimum the administrative burden and costs" of Customs enforcement.

However, the European Parliament's proposals expand on the Commission's drafting and expressly provide fake goods buyers with rights to be "duly informed within a reasonable time of the legal basis of the actions taken by the customs authorities" as part of the new procedures.

Under the proposals, fake goods purchasers would have five working days upon receiving a notice from Customs to "express" their "point of view" on the officials' plans to suspend the release of the goods or detain them.

The European Parliament has proposed that the new laws set out the conditions in which Customs enforcement officers can seize or destroy goods without there being a need to show "whether an intellectual property right has been infringed under the law of the Member State where the goods are found."

One of the conditions is that purchasers agree to the suspension of release, or destruction, of their goods, generally within ten days of receiving notice of Customs' intentions.

If there is no such agreement, rights holders are required to "initiate proceedings to determine whether an intellectual property right has been infringed within 20 working days, or three working days in the case of perishable goods, of the receipt of the notification of the suspension of the release of the goods or their detention," the European Parliament's revised text states. If no proceedings are initiated, the goods should be released, it said.

MEPs said "goods of a non-commercial nature contained in a travellers' personal luggage should be excluded from the scope of the regulation," in a statement from the Parliament.

Under the proposed laws, purchasers of fake goods can claim that goods are not intended for sale within the EU and that, therefore, they should not be detained or destroyed by Customs officials.