Community
Provisions (Goods Infringing Intellectual Property Rights) (Jersey)
Regulations 2013
Made 16th January 2013
Coming into force 23rd
January 2013
THE STATES, in pursuance of Article 2 of the European Communities Legislation
(Implementation) (Jersey) Law 1996[1], have made the following
Regulations –
1 Interpretation
(1) In
these Regulations, unless the context otherwise requires –
“1999 Law” means the Customs and Excise (Jersey)
Law 1999[2];
“2011 Law” means the Intellectual Property (Unregistered
Rights) (Jersey) Law 2011[3];
“Agent of the Impôts” has the same meaning as in
the 1999 Law;
“application” means an application under Article 5
of the Council Regulation;
“Council Regulation” means Council Regulation (EC)
No. 1383/2003 of 22 July 2003 concerning customs action against
goods suspected of infringing certain intellectual property rights and the
measures to be taken against goods found to have infringed such rights (OJ
L 196, 2.8.2003, p.7)[4];
“decision” means a decision granting an application in
accordance with Article 8 of the Council Regulation;
“declarant” means a person making a customs declaration
in his or her own name or the person in whose name a customs declaration is
made;
“goods infringing an intellectual property right” has
the meaning given in Article 2(1) of the Council Regulation and related
expressions shall be construed accordingly;
“officers of the Impôts” has the same meaning as
in the 1999 Law;
“right-holder” has the meaning given in
Article 2(2) of the Council Regulation;
“working day” means a day which is not a Saturday or
Sunday or a day specified to be observed as a public holiday in the Public
Holidays and Bank Holidays (Jersey) Act 2010[5].
(2) For
the purposes of these Regulations, any reference in the Council Regulation to
“copyright or related right” is to be construed as a reference to
“copyright, rights in performances, publication right or database right
as those rights subsist pursuant to the Intellectual Property (Unregistered
Rights) (Jersey) Law 2011[6] and any Order made under
Article 399 of that Law”.
(3) Other
expressions used in these Regulations that are also used in the Council
Regulation shall be construed in accordance with the Council Regulation.
2 Application
(1) Subject
to paragraph (2), these Regulations apply to goods which fall to be
treated, by virtue of Article 2 of the Council Regulation, as being goods
infringing an intellectual property right.
(2) These
Regulations do not apply to goods in relation to which the Council Regulation
does not apply, by virtue of Article 3 of that Regulation.
3 Competent
customs department
The Agent of the Impôts is the competent customs department in
Jersey.
4 Right-holder
ceasing to hold rights
(1) The
person whose application for a decision has been granted by the Agent of the
Impôts shall notify the Agent of the Impôts, as soon as
possible –
(a) if
the person ceases to be a right-holder of the intellectual property right
specified in the application;
(b) if,
by virtue of a change in the authorized use of the intellectual property right
specified in the application, the goods suspected of infringing that right do
not infringe that right; or
(c) if
the intellectual property right specified in the application expires.
(2) A
decision shall have no further effect upon the occurrence of any of the events
described in paragraph (1)(a) to (c).
5 Simplified
procedure
(1) The
Agent of the Impôts may treat as abandoned for destruction goods which
have been suspended from release or detained by virtue of Article 9 of the
Council Regulation where the right-holder has informed the Agent of the
Impôts in writing within the specified period that those goods infringe
an intellectual property right and either of the following conditions applies –
(a) the
right-holder has provided the Agent of the Impôts with the written
agreement of the declarant, the holder or the owner of the goods (“the
interested parties”) that the goods may be destroyed; or
(b) none
of the interested parties has specifically opposed the destruction of the goods
within the specified period.
(2) The
Agent of the Impôts may not treat the goods as abandoned for destruction
where one interested party has given its written agreement as mentioned in
paragraph (1)(a), but either or both of the other interested parties has
specifically opposed destruction within the specified period.
(3) The
Agent of the Impôts may, at his or her discretion, accept the written
agreement mentioned in paragraph (1)(a) directly from the interested
party.
(4) Where
goods are treated as abandoned for destruction by virtue of
paragraph (1) –
(a) the
right-holder must bear the expense and the responsibility for the destruction
of the goods; and
(b) the
Agent of the Impôts must retain a sample of the goods in such conditions
that it can be used if required as evidence in legal proceedings.
(5) The
“specified period” is 10 working days from receipt of the
notification to the right-holder provided for in Article 9 of the Council
Regulation, or 3 working days in the case of perishable goods.
(6) The
Agent of the Impôts may, at his or her discretion, extend the specified
period by a further 10 working days.
6 Relationship
with other powers
(1) These
Regulations do not affect –
(a) any
power of the officers of the Impôts conferred otherwise than by any
provision of these Regulations to suspend the release of, or detain, any goods;
or
(b) the
power of any court to grant any relief, including any power to make an order by
way of interim relief.
(2) The
implementation of the Council Regulation is an assigned matter, for the
purposes of the 1999 Law.
7 Consequences
of misuse of information by right-holder
(1) Where
the Agent of the Impôts has reasonable grounds for believing that there
has been a misuse of information by a right-holder, the Agent may suspend the
decision in force at the time of the misuse of information, in relation to a
relevant intellectual property right, for the remainder of its period of
validity.
(2) Where
the Agent of the Impôts has reasonable grounds for believing that there
has been a further misuse of information within 3 years of a previous
misuse of information by that right-holder, the Agent of the Impôts
may –
(a) suspend
the decision in force at the time of the further misuse of information, in
relation to a relevant intellectual property right, for the remainder of its
period of validity; and
(b) for
a period of up to one year from its expiry, refuse to renew the decision in
force at the time of the further misuse of information, or to accept a new
application, in relation to a relevant intellectual property right.
(3) In
this Regulation –
“misuse of information” means the use of information
supplied to a right-holder pursuant to the first sub-paragraph of
Article 9(3) of the Council Regulation, other than for the purposes specified
in Articles 10, 11, and 13(1) of the Council Regulation or pursuant
to an enactment or order of the court;
“relevant intellectual property right” means any
intellectual property right in relation to a suspected infringement of which
information was supplied to a right-holder pursuant to the first sub-paragraph
of Article 9(3) of the Council Regulation, and in relation to which the
Agent of the Impôts has reasonable grounds for believing that there has
been a misuse of that information.
8 Trade
Marks (Jersey) Law 2000 amended
For Article 22(3) of the Trade Marks (Jersey) Law 2000[7] there shall be substituted
the following paragraph –
“(3) This Article does not apply
to goods placed in, or expected to be placed in, one of the situations referred
to in Article 1(1) of Council Regulation (EC) No. 1383/2003 of 22 July
2003 concerning customs action against goods suspected of infringing certain
intellectual property rights and the measures to be taken against goods found
to have infringed such rights (OJ L 196, 2.8.2003, p.7)[8], in respect of which an
application may be made under Article 5(1) of that Regulation.”.
9 Citation
and commencement
These Regulations may be cited as the Community Provisions (Goods
Infringing Intellectual Property Rights) (Jersey) Regulations 2013 and
shall come into force 7 days after they are made.
m.n. de la haye
Greffier of the States