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change their status from 'goods in transit' to 'Community goods'. In some
countries, where customs posts are distant from points of entry, there is the
possibility of tampering with shipments en route to those posts.
(iv) Application process
Article 52 provides that:
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Any right holder initiating the procedures under Article 51 shall be required to provide
adequate evidence to satisfy the competent authorities that, under the laws of the
country of importation, there is prima facie an infringement of the right holder's
intellectual property right and to supply a sufficiently detailed description of the goods
to make them readily recognizable by the customs authorities.
In relation to those intellectual property rights which are obtained by registra-
tion, such as trade marks, registered designs and patents, it would be reasonable
for a customs authority to require submission of documentary proof of owner-
ship of that right, such as a copy of the relevant registration certificate, by an
applicant for suspension. Particular problems will arise in relation to those
rights which do not arise from registration in the jurisdiction. In practice, the
most important of these will be well-known trade marks and copyrighted
works.
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Following receipt of an application for suspension, the competent authorities
are required by Art 52 to inform the applicant 'within a reasonable period
whether they have accepted the application' and, where it has been determined,
the period within which action will be taken by the competent authorities.
(v) Security or equivalent assurance
To protect persons who are the subject of an application for suspension, and also
the competent authorities, from abuse, Art 53.1 empowers the competent
authorities to require the provision of 'a security or equivalent assurance to
protect the defendant and the competent authorities'. However, Art 53.1
provides that the requirement of a security or equivalent assurance shall not
unreasonably deter recourse to these procedures.
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In certain limited circumstances, Art 53.2 provides for the release of suspended
goods upon the payment by a defendant of an amount sufficient to protect the
right holder for any infringement as security. This procedure applies (a) where
there has been a suspension of goods involving industrial designs, patents,
layout designs or undisclosed information by customs authorities on the basis of
an administrative decision which has not been reviewed by a judicial or
independent authority; (b) the period prescribed by Art 55 for notification to
