Government revokes old rules on border counterfeit detentions

The Government has revoked regulations governing the way thatcounterfeit goods are handled at UK borders. The revocation willcome into effect on 10 March.

Her Majesty's Revenue and Customs (HMRC) announced last summerthat it would change its policy on goods detention after a courtruling which said that UK rules were incompatible with EU law.

HMRC reversed its policy on the burden of proof in relation toseized goods and now requires rights holders to take court actionif they want goods to be impounded or destroyed. If no court actionis taken, the goods will be released.

The policy change was announced last year but the Government hasonly just published the Statutory Instrument that will implementthe changes. It was laid before Parliament on 16 February and willcome into force on 10 March. It amends the Goods InfringingIntellectual Property Rights (Customs) Regulations of 2004.

The Statutory Instrument revokes the old rules and implementsnew rules about how goods can be destroyed. It does not putlegislation in place about the seizure of goods, but it hasproduced guidance which companies must follow.

Before the change HMRC had accepted a witness statement from acompany as confirmation that seized goods infringe that company'sintellectual property rights. It will no longer do so and will onlyseize them on the orders of the court.

"We now accept that the burden of proof should be upon therights holder who must confirm the infringing nature of the goodsby taking legal proceedings," said a letter HMRC sent to businesseslast year about the issue. It said it would contact rights holderswhen goods are detained and keep them for 10 days.

"This changes the nature of the Customs activity,", a Pinsent Masons intellectual propertyexpert, said at the time. "Previously they were seizing the goods,but now they are just detaining them on behalf of the rights owner,and it is up to the rights owner to take the case to court,otherwise the goods are let go."

"The solution for brand owners is to establish a process toquickly and cost efficiently identify fake goods and get intocourt. Otherwise the cost of dealing with fake goods at an earlystage is likely to be prohibitive," he said.