Customs detention (retenue douanière)

Customs detention is the measure by which the customs authorities suspend the release of, or detain, goods suspected of infringing an intellectual property right, so as to enable the right holder to verify the suspicion and bring an action. For goods coming from third countries it is governed by Regulation (EU) No 608/2013 and, for purely domestic situations, by the French Intellectual Property Code (in particular Articles L. 335-10, L. 521-14, L. 614-32 and L. 716-8 IPC). It most often follows an application for action lodged by the right holder, but customs may also act on their own initiative.

Conduct of the measure

Upon detention, customs notify the measure to the right holder and to the holder of the goods, stating the nature and quantity of the products. The right holder may obtain samples and information on the origin, provenance and destination of the goods, which may be used only for the purposes of the procedure. The right holder then has ten working days from notification, reduced to three working days for perishable goods, to bring civil or criminal proceedings on the merits, obtain provisional measures or initiate the simplified destruction procedure. Under the Union regime this period may be extended once by ten working days.

Simplified destruction

The Regulation allows goods to be destroyed under customs control without a court decision where the right holder confirms in writing the infringement and consents to destruction, and the holder of the goods consents or does not object within the prescribed period, silence being deemed acceptance. A lighter procedure exists for small consignments. If the holder objects, the right holder must bring an infringement action within the time limit, failing which the goods are released.

Limits and risks

Detention does not apply to genuine goods placed on the market with the right holder’s consent, which in principle excludes parallel imports from the European Economic Area, nor to goods contained in travellers’ personal luggage. A right holder who obtains an unjustified detention is liable to the holder of the goods and may be ordered to bear storage and destruction costs. The transit of infringing goods has been caught for European Union trade marks since the 2015 reform, unless the declarant proves that the right holder could not prohibit the placing of the goods on the market in the country of final destination.

Key points

Customs detention immobilises suspect goods for ten working days, within which the right holder must act or obtain simplified destruction. In practice it requires a prior application for action, regularly updated. Organise the internal decision chain in advance so as to respond within the time limit, and systematically check the origin of the products so as to exclude genuine goods.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. When the question arises in a real case, the right moment is almost always before proceedings are issued.

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