12.12 Border measures
The preemptive measures covered here are intended to prevent entry into the Spanish market of goods suspected of infringing intellectual property rights.
Customs policy is the exclusive domain of the European Union. It is the European Commission that is therefore responsible for proposing customs legislation and providing for its enforcement, the legal framework for which is shared by all European Union member countries.
The governing regulation establishing procedures and measures applicable to border measures in Spain is Regulation (EU) 608/2013.132
This Regulation applies where goods suspected of infringing an intellectual property right are, or should have been, subject to customs supervision or customs control, particularly in the following situations:
-
when declared for release for free circulation, export or re-export;
-
when entering or leaving the customs territory of the European Union; and
-
when placed under a suspensive procedure or in a free zone or free warehouse.
It does not apply to:
-
goods of a noncommercial nature contained in travelers’ personal luggage;
-
goods that have been manufactured with the consent of the right holder; and
-
goods manufactured by a person duly authorized by a right holder to manufacture a certain quantity of goods, in excess of the quantities agreed between that person and the right holder.
The measures applicable may consist of the detention or suspension of the release of goods under the supervision or control of customs authorities, when those goods are suspected, based on prima facie evidence, of infringing intellectual property rights. Customs authorities may take these measures at their own initiative or upon application, so that a person or entity entitled to do so may initiate proceedings to determine if an intellectual property right has been infringed. These temporary measures are then lifted once such proceedings have been initiated.
The goods may also be destroyed, without any need to determine whether intellectual property rights have been infringed, if the owner of the goods consents or, under certain circumstances, if so requested by, and under the responsibility of, whomever has requested the intervention of customs authorities.
The Regulation consists exclusively of procedural rules for customs authorities. It does not establish criteria for determining whether intellectual property rights have been infringed.