Hogan Lovells

Trademarks - Anti-counterfeiting: Customs watch applications - The Netherlands

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-How do you register a customs watch application?

A rights holder files an application with the Dutch customs authorities to request that they implement a watch program over suspect goods which may infringe their IP rights. The application can cover all intellectual property rights, in particular trademarks, designs, patents and copyrights.

The application is not necessarily filed by the rights holder itself. Any representative of the rights holder or any authorised user of the IP rights at issue may also file an application.


-What documentation is required or recommended?
  • Evidence of the relevant IP rights (e.g., copies of registration certificates for registered IP rights or evidence of authorship for unregistered IP rights); 
  • An undertaking duly signed by the rights holder whereby they undertake to inform the customs authorities of any change in the future regarding the validity and ownership of their IP rights and accept to cover the costs resulting from the storage and destruction of the counterfeit goods seized; 
  • Details of the rights holder's local representative  with whom the customs authorities may communicate each time suspect goods are found, together with a power of attorney duly executed in this regard; 
  • Information regarding the goods, its distinctive  features, place of production, companies involved and traders;
  • Any other information that could be of relevance to the Dutch customs.

-Is a local agent required? If so, is a power of attorney required?

The details of the IP rights holder's local representative with whom the customs authorities may communicate each time suspect goods are found, should be provided to the Customs authorities, together with a duly executed power of attorney.


-If filing on behalf of a subsidiary of the IP rights holder what evidence of connection to the parent company is required?

The filing of a Dutch customs watch application on behalf of a subsidiary of the IP rights holder is possible, provided that such subsidiary is indeed an authorised user of the IP rights. Any document evidencing this, such as a license agreement executed by both parties or a statement signed by the IP rights holder, should be accepted by the Dutch customs authorities.

 


-Are there any fees or local procedural requirements?

The filing of a Dutch customs watch application is free of charge. However, the rights holder has to agree to cover the costs resulting from the storage and destruction of the counterfeit goods seized by the customs authorities.


-How long does it take and what is the term of protection?

A customs watch program can be implemented at any time. The customs authorities quickly confirm whether the application has been accepted.

In principle customs protection will last for 12 months before renewal is required.


-What level of understanding of IP rights is available from customs? Are additional procedures or training required?

Dutch customs authorities have a very good understanding of IP rights issues, in particular regarding trademarks and registered designs. However, the Dutch custom authorities do not accept invitations from rights holders for training sessions.


-When customs report on a finding how long does the rights holder have to respond and what steps are required to ensure non-release of counterfeit goods?

Following receipt of notification from the customs authorities of the seizure of counterfeit goods, the rights holder's representative has a period of 10 working days to confirm whether the goods are genuine or counterfeit. In the absence of a timely response, the customs authorities end their retention and release the suspect goods.

Once the rights holder's representative has confirmed that the goods retained are, in fact, counterfeit (and the other side has failed to submit a response), the rights owner is requested to arrange destruction of the goods