JURISDICTION REPORT: CYPRUS
OPTIONS FOR THE SEIZURE OF INFRINGING GOODS
Ermioni Pavlidou Michael Kyprianou & Co LLC
Once the Cyprus Department of Customs and Excise Duties (CCED) becomes aware of any suspicious goods that could result in infringement of an IP right, it will suspend the release of the goods and detain them for three working days. It will also contact the rights holder with a sample of the infringing goods, notify it of the number of items held and their nature, and inform it that it can submit an application for action within three working days.
Application for action If the rights holder submits an application for action within that period, it may then decide either to apply to the court within 10 working days of submitting the application for action, or to follow the simplified procedure provided in Article 11 of EU Regulation 1383/2003. In practice, the rights holder may follow the simplified procedure and, if that fails to produce the desired results in time, then file a court action. Te period of 10 working days may be extended for a further 10 working days. Te detained products will be released if:
• The affected rights holder fails to file the action within that period;
• The affected rights holder fails to notify the CCED that it has filed the action; or
• Within that period the CCED does not receive the rights holder’s agreement as provided for by Article 11(1) of the regulation.
Inspection of infringing goods Te CCED retains the right to allow all interested parties to inspect the allegedly infringing products. It is also common practice for the CCED to provide the applicant (or the prospective applicant) with samples of the goods and/or photographs in order to allow the applicant to inspect, examine and analyse the nature and quality of the goods.
Once the rights holder has confirmed in writing that its IP rights have been infringed, inspection of the goods by the rights holder is allowed at the latter’s specific request. An inspection is not allowed before confirmation of the infringement (which would facilitate the rights holder’s decision as to whether to submit an application for action), as the rights holder will have already received a sample of the goods in question alongside the first notification of the infringement.
Simplified procedure In practice, in the majority of cases rights holders prefer to follow the simplified procedure, which allows the destruction of the goods without determination of whether an IP right has been infringed under national law. Indeed, Article 11 of Regulation 1383/2003 provides that: “Where customs authorities have detained or suspended the release of goods which are suspected of infringing an IP right in one of the situations covered by Article 1(1), the member states may provide, in accordance with their national legislation, for a simplified procedure to be used
56 World Intellectual Property Review May/June 2012
with the rights holder’s agreement, which enables customs authorities to have such goods abandoned for destruction under customs control, without there being any need to determine whether an IP right has been infringed under national law.”
In Cyprus, Section 16 of Law 31(I)/2002 provides that where the director of the CCED ascertains that an offence has been committed under Law 31(I)/2002, the CCED may:
• Destroy, at no cost to the state, all goods that are identified as infringing an IP right or dispose of these goods outside commercial channels in such a way as to preclude injury to the rights holder;
• Accept the abandonment of such goods to the benefit of Cyprus, again at no cost to the state; or
• Adopt any other measures with respect to the goods, depriving the persons concerned of any economic gains from the transaction.
However, this provision does not satisfactorily implement Article 11 of the regulation. It is to be hoped that this will be achieved when Law 31(I)/2002 is repealed and replaced—something that ought to have been done soon aſter Cyprus’s accession to the EU in 2004.
Criminal proceedings As an alternative to the simplified procedure, the authorities can instigate a criminal prosecution, as any person who infringes an IP right commits a criminal offence. In addition, the CCED may decide to use its statutory power and compound the offence by imposing a heavy monetary fine on the infringer.
Civil proceedings Te rights holder is entitled to instigate civil proceedings. A civil action determines whether an IP right has been infringed under the national law in accordance with Article 10 of the regulation. However, in practice further causes of action may be included in the same action (eg, passing off or infringement of a registered trademark). Moreover, further claims may be added (eg, for an injunction restraining the defendant from infringing the same right in future, for damages or for an account of profits).
In the context of such an action the plaintiff may also apply for an interim order. Te object of an interim order is to preserve matters pending trial and thus restrain the commission, continuance or repetition of a wrongful act until final determination of the action.
Ermioni Pavlidou is a legal consultant at Michael Kyprianou & Co LLC. She can be contacted at:
ermioni@kyprianou.com.cy
www.worldipreview.com
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