Detention of goods infringing intellectual property rights (IPR)

What are IPR goods and what is the role of Norwegian Customs

IPR goods are products that infringe the intellectual property rights of a rights holder by imitating their trademark, patent, design, or similar protected elements.

It is not just expensive clothing brands and watches that are counterfeited. Medicines, food products, electronics, car parts, and cosmetics are also subject to imitation. It can be difficult to distinguish genuine goods from counterfeits, but that does not mean the products are the same. The quality and content of IPR goods can, among other things, pose a risk to life and health.

The customs authorities are obligated to protect a rights holder’s intellectual property rights by detecting, detaining, and notifying rights holders of potential counterfeit goods. Norwegian customs may detain goods upon import, export, and during transit.

Norwegian Customs is not a party to the case but acts in the interest of the rights holder. The parties to the case are the rights holder and the importer of the goods.

Conditions for the detention of IPR goods

For Norwegian Customs to detain goods suspected of infringing intellectual property rights, two main conditions must be met:

1. There must be a justified suspicion that the goods infringe an intellectual property right.
2. The import or export must occur as part of a commercial activity.

Previously, both the sender and the recipient had to be acting in a commercial capacity. However, following the EU Court of Justice ruling in the "Rolex" case (C-98/13), it is now sufficient that either the seller or the buyer is acting commercially. For example, a product ordered online from a company in China to a private individual in Norway is considered part of a commercial transaction and may be detained by Norwegian Customs.

Legal Basis for the Detention of Goods by the Norwegian Customs

Norwegian Customs must have a legal basis to detain goods. Chapter 10 of The Movement of Goods Act provides three legal grounds that authorize Norwegian Customs to detain goods suspected of infringing intellectual property rights:

1. A decision for assistancefrom Norwegian Customs
2. A preliminary order
3. On the customs authority’s own initiative

What happens when the Norwegian Customs detains a product suspected of being counterfeit?

When the customs authorities suspect that a product is counterfeit and that the import/export is part of a commercial activity, the goods may be detained. When a product is being detained, Norwegian Customs will issue a formal notice of detention to both the recipient and the rights holder. The notice contains information about the further procedure in the case, the requirements for consent, applicable deadlines, as well as photographs of the detained goods.

The rights holder is responsible for examining the photos and assessing whether the product is counterfeit, not Norwegian Customs.

If the rights holder has concluded that the product constitutes an infringement of their intellectual property rights, they must notify Norwegian Customs within a specified deadline that the product constitutes an infringement and request its destruction.

The recipient must also respond, indicating whether they consent or object to the destruction of the goods. If the recipient does not respond within the deadline, this will be considered as a tacit consent, pursuant to the Movement of Goods Act section 10-7 (1).

If the recipient objects to the destruction, the rights holder will be granted a new deadline of 10 business days to initiate legal proceedings, cf. section 10-7 (3).