As of March 10, 2010, British Customs will be able to treat as abandoned for seizure and destruction purposes items where the owner has either consented to destruction or failed to oppose destruction of the goods within 10 days from notice or any extensions granted to that period. The new procedure is set out in the Goods Infringing Intellectual Property Rights (Customs) (Amendment) Regulations 2010.
Historically, Customs measures in the United Kingdom were very favorable to rights owners in that once an objection was received by Customs and upheld, it fell to the owners of the products in issue to bring an appeal against the action of Customs in confiscating the goods. The practice was changed in 2009 as a result of a court action. The amended rules brought British practice into line with that of most other European countries whereby it fell to the objecting rights holder to either obtain consent to forfeiture from the owners of the goods or else to bring a formalized proceeding to have the goods declared counterfeit and seized, something which is onerous and expensive.
Under the latest revision, which became effective on March 10, consent to forfeiture will be presumed if the owner of the goods does not affirmatively object to forfeiture within the specified period of 10 days plus any extensions. While this still puts most of the burden on the rights holder to make sure that the counterfeit goods do not enter the market, it does mean that the owner of the offending goods has to take some sort of action in order to secure release and it cannot just sit back and take a wait-and-see approach. Another problem under the prior regimen was that consignee contact information provided with shipping documents was often bogus and unreliable. The amended rules mean that owners of the goods will have to step forward and potentially expose themselves to direct legal liability for dealing in counterfeits. The new approach makes Customs recordation once more an attractive option insofar as the UK is concerned.
Vol. 53, June 2010