Your goods detained at Spanish customs as suspected counterfeits

The case, in five lines

What is brought

A written objection to destruction lodged with customs, with evidence of legitimate origin; if the owner does not go to court in time, a request for release; if it does, a defence in that lawsuit and, if the goods were legitimate, a claim for damages against the owner (art. 28 of Regulation 608/2013). Against customs' decisions, a recurso de reposición (an appeal for reconsideration to the same office) or a reclamación económico-administrativa (an economic-administrative claim before the tax appeals board).

Before which court

The objection goes to the customs office that notified the detention (procedure DB08 of the Agencia Tributaria, AEAT, the Spanish tax and customs agency). The owner goes to the sección de lo mercantil del Tribunal de Instancia (the commercial section of the first-instance court) with a civil claim, or down the criminal route with a complaint. Customs' decisions are challenged by reposición before customs or by a reclamación before the Tribunal Económico-Administrativo Regional (TEAR, the regional tax appeals board) (art. 235.3 LGT), and then before the Sala de lo Contencioso-administrativo del Tribunal Superior de Justicia (the administrative chamber of the regional High Court of Justice) (art. 10.1.d LJCA), or that of the Audiencia Nacional (National High Court) if the Tribunal Económico-Administrativo Central (TEAC, the central tax appeals board) decided (art. 11.1.d LJCA).

Deadline

Ten working days from notification to object, three for perishable goods, with no extension provided for you; if you stay silent, your consent may be presumed (arts. 23.1.c and 26 of Regulation 608/2013). If you object, the owner has ten working days from when it was notified of the detention to go to court, extendable by ten except for perishable goods, or customs releases the goods (art. 23.3 to 23.5); for small consignments, ten from when it is told of your objection (art. 26.9). Against customs' decisions, one month from the day after notification (arts. 223.1 and 235.1 LGT); for judicial review, two months (art. 46.1 LJCA).

Who can bring it

The declarant or the holder of the goods, personally or through a representative: the firm lodges the objection and any appeals under your power of attorney and with its own digital certificate, without asking for yours (art. 46.2 of the Ley General Tributaria, the General Taxation Act). Any customs declaration needed is lodged by your company or a registered customs representative; we prepare the paperwork for you.

Financial risk

If you stay silent, you may lose the goods without a court hearing, and the owner can ask customs for your details and claim the costs from you (arts. 17.4 and 29.2). If you object without solid evidence, a civil claim or a criminal complaint awaits you, with the goods detained while it lasts. If they were legitimate, the owner is liable for your losses (art. 28). If the declaration described them falsely, smuggling proceedings may follow as well.

What has happened: a detention at the trade mark owner's request

Regulation (EU) 608/2013 allows customs to suspend the release of, or detain, goods suspected of infringing an intellectual property right: trade marks, but also industrial designs, patents and copyright (art. 2). If the owner has an accepted application for action, customs detains the goods it identifies (art. 17.1); without one, it may detain them of its own motion, unless they are perishable (art. 18.1).

The detention is not a penalty: it is a provisional measure until the owner confirms its suspicion or, if you object, a court decides. Customs must notify it within one working day to the declarant or to the holder of the goods, giving the quantity and nature of the goods and, where appropriate, images (art. 17.3 and 17.4). It also informs the right holder and, on request, gives it your name and address, and those of the consignor and the declarant.

What nobody tells you: the rules allow customs to notify the declarant instead of you. If a courier company or a customs representative declared the goods for you, your deadline may be running without your knowing; ask for the date and request a copy. In an own-motion detention, customs releases the goods if within one working day it identifies no one entitled to act, or if the owner does not file its application in time or it is refused (arts. 5.3 and 18.4).

Ten working days: object, consent or stay silent

From notification you have ten working days, three if the goods are perishable, to tell customs whether you consent to destruction or object; if you stay silent, your consent may be presumed (art. 23.1.c). But destruction without a court ruling also requires the owner, within its own deadline, to confirm the infringement in writing and consent (art. 23.1.a and b). If it does not, and no one reports that proceedings have been started, customs must release the goods.

Leave yourself a margin: they are working days, not calendar days, from the date of notification; calculate on the strictest basis and lodge the objection before the last day. No extension is provided for you; the one in art. 23.4 is the owner's. Destruction, whether consented to or presumed, takes place under customs supervision and under the owner's responsibility, unless national law provides otherwise, and samples may be taken beforehand (art. 23.2).

The objection is addressed to the customs office that signed the notice and the firm lodges it through the AEAT electronic office, under your power of attorney and with its own certificate (procedure DB08; art. 46.2 LGT): an unambiguous objection, a request for inspection and release, and the evidence. If the deadline has passed and the goods have not yet been destroyed, objecting still makes sense: the regulation says customs ‘may’ presume consent, not that it must. It is not certain, but staying silent achieves nothing.

If you object, the owner must go to court; if it does not, the goods are released

If you object, customs immediately tells the owner, which must start proceedings to determine whether there is an infringement within ten working days, three for perishable goods, counted from when it was notified of the detention, not from your objection (art. 23.3). It may obtain ten more working days, on a justified request and never for perishable goods (art. 23.4). If no one informs customs in time that proceedings have been started, it must release the goods (art. 23.5).

Those proceedings may be a civil claim for trade mark infringement before the sección de lo mercantil del Tribunal de Instancia (the commercial section of the first-instance court) or a criminal complaint, and while they last the detention is maintained (procedure DB08). An owner that fails to go to court without a justified reason risks customs suspending its action (art. 16.2.d). If the case is civil, the firm defends you; if it is criminal, we say so plainly: Managora does not handle criminal defence.

The quickest way out is to convince the owner before it confirms the infringement: if it receives the invoices from its authorised network or the licence in time, it may decide not to confirm it, and customs releases the goods without litigation (art. 23.1, last paragraph). Once its deadline passes with no proceedings, release is requested in writing; if customs refuses it, its decision is challenged within one month by reposición or by a reclamación económico-administrativa, as the statement of appeal rights (pie de recurso) indicates, never both at once (art. 222.2 LGT).

The evidence that decides: the owner's consent, origin and destination

A trade mark allows its owner to prohibit third parties from using, without its consent and in the course of trade, an identical or confusingly similar sign, and in particular from importing or exporting goods bearing it (art. 34.2 and 34.3.c of Law 17/2001, the Ley de Marcas or Spanish Trade Marks Act). So it is not enough for the product to be good: you must prove the owner consented, with an invoice from the brand or its authorised network, the licence or distribution agreement, linked to the detained consignment.

Before deciding, inspect: customs must give you the opportunity to examine the goods (art. 19.1). Compare labels, serial numbers, packaging and certificates with those of the original, and the invoice with what is in the boxes. If customs hands samples to the owner, it analyses them under its sole responsibility and must return them before release, unless that is impossible; if it does not, or they are rendered unusable through its fault, it is liable for the damage (arts. 19.2, 19.3 and 28).

Goods in transit have a rule of their own: the owner may prevent goods from third countries bearing, without authorisation, a mark identical to its own, or indistinguishable from it in essence, from entering Spain even if they are not released for free circulation, but its right lapses if you prove in the proceedings that it cannot prohibit their sale in the country of final destination (art. 34.5). Weighing against you are a very low price, a seller who leaves no trace and a declaration that does not describe what is in the boxes.

Small consignments and purchases for your own use

If you bought online and the parcel arrives by post or courier, the small consignments procedure may apply (art. 26): three units or fewer, or a gross weight under two kilograms (art. 2), suspected of being counterfeit or pirated, not perishable and covered by an application that requests it. The notice will tell you whether customs intends to destroy the goods and what your rights are; you also have ten working days, and if you stay silent, your consent may be presumed (art. 26.3 to 26.6).

If you object, customs informs the owner, and its ten working days to start proceedings run from that notice; if it does not start them, the parcel is released (art. 26.8 and 26.9). Here the owner does not have to confirm the infringement beforehand. And buying for your own use does not prevent the detention: customs detains on suspicion, and it will be for the court to decide whether the mark was used in the course of trade (art. 34.2 of the Ley de Marcas).

It comes down to numbers. If the item is worth little and you cannot prove its origin, objecting exposes you to a claim over something not worth it, and consenting closes the procedure at customs. If you bought it from the brand itself or an authorised seller, objecting is the sensible course. Either way, keep the notice, the order, the payment and the listing: they are what you need to ask the seller or the platform for a refund.

Costs, damages and the risk of a penalty or a criminal case

While the detention lasts, customs sets the storage conditions (art. 20) and, on request, the holder of the decision reimburses it for storage, handling and destruction, without prejudice to claiming those costs from the infringer (art. 29). What nobody tells you: if the goods were counterfeit, expect that claim even if you consented to destruction, because the owner can ask customs for your name and address (art. 17.4). Consenting spares you the lawsuit, not necessarily the bill.

If the goods were legitimate, it works the other way round: the owner is liable for your losses if it is later established that they infringed no right, if the procedure is suspended through its act or omission, or if the samples were not returned or were rendered unusable through its fault (art. 28); for example, storage, delay or a lost sale. The claim goes through the civil courts, under the applicable rules. Document every expense from day one and do not let time slip by: the claim is subject to a limitation period.

The detention is not penalty proceedings, but it can lead to them. Obtaining or attempting to obtain release by alleging a false ground, such as a false description of the goods, is smuggling (art. 2.1.e of Organic Law 12/1995 on smuggling): below 150,000 euros, an administrative infringement with a fine of 100% to 350% of the value, minimum 500 euros, and confiscation (arts. 11, 12 and 14); from that figure upwards, a criminal offence. Importing goods bearing a counterfeit mark for commercial purposes may also be an offence against industrial property, and Managora does not handle that criminal defence.

How we run the case, step by step

1. 1

   Pin down the date that counts

   With the notice, yours or that of whoever declared the goods for you, we establish the day the deadline began, check whether the goods are perishable or travel as a small consignment, and work out the last day on the strictest basis.

2. 2

   See the goods and gather the evidence

   We ask customs for an inspection and the images (arts. 17.4 and 19.1) and gather invoices, licence, order, payment and transport documents to know, before replying, whether there is a case for defending the consignment.

3. 3

   Decide between objecting and consenting

   With evidence of the owner's consent or, in a transit case, that it cannot prohibit sale at destination, an objection is lodged; with no evidence and little value, consenting may be the prudent course, knowing what the owner may claim afterwards.

4. 4

   Objection lodged within the deadline

   The firm lodges the objection under your power of attorney and with its own certificate: an express objection, a request for inspection and release, and documentary evidence, which is also put before the owner in case it decides not to confirm the infringement.

5. 5

   Watch the owner's deadline and request release

   We check whether the owner goes to court in time and, if not, request release in writing (arts. 23.5 or 26.9) or challenge a refusal within one month. The customs declaration is lodged by your company or a registered customs representative; we prepare everything else for you.

6. 6

   Defence in the lawsuit and claim for damages

   If the owner sues, the firm defends you before the sección de lo mercantil del Tribunal de Instancia (the commercial section of the first-instance court) and, if there was no infringement, claims your losses from the owner (art. 28). If it chooses the criminal route, Managora does not handle that defence.

The law that applies

• Arts. 17 y 18 del Reglamento (UE) 608/2013. With the owner's accepted application, customs detains the suspect goods; without one it may do so of its own motion, except for perishable goods, and releases them if the owner does not file an application in time. It notifies the declarant or holder of the goods within one working day and, on request, gives the right holder the details of the consignee, consignor and declarant. 32013R0608
• Art. 23 del Reglamento (UE) 608/2013. It allows destruction without a court ruling if the owner confirms the infringement in writing and consents, and the declarant or holder of the goods consents within ten working days, three if perishable, or stays silent. If that person objects, the owner must start proceedings within ten working days of being notified of the detention, extendable by ten except for perishable goods; otherwise customs releases the goods. 32013R0608
• Art. 26 del Reglamento (UE) 608/2013. In small consignments of non-perishable counterfeit or pirated goods, where the owner asked for it, customs states whether it intends to destroy them and what rights the declarant or holder has, who has ten working days; silence allows consent to be presumed. If that person objects, the owner has ten working days from being informed to go to court. 32013R0608
• Arts. 19, 20 y 29 del Reglamento (UE) 608/2013. They give the declarant or holder of the goods the opportunity to inspect them, allow samples to be handed to the owner for analysis under its responsibility, leave storage to customs and require the holder of the decision to reimburse customs, on request, for storage, handling and destruction, without prejudice to claiming those costs from the infringer. 32013R0608
• Art. 28 del Reglamento (UE) 608/2013. The holder of the decision is liable to the declarant or holder of the goods for the damage suffered if the procedure is suspended through its act or omission, if samples are not returned or are rendered unusable through its fault, or if it is later established that the goods did not infringe any right, in accordance with the applicable rules. 32013R0608
• Art. 34 de la Ley 17/2001, de Marcas. The owner of a registered trade mark may prohibit the use without its consent, in the course of trade, of identical or confusingly similar signs, including import and export, and prevent goods from third countries bearing an unauthorised identical mark from entering without release for free circulation, unless it is proved that the owner cannot prohibit their sale in the country of final destination. BOE-A-2001-23093
• Arts. 222, 223 y 235 de la Ley 58/2003, General Tributaria. Acts open to a reclamación económico-administrativa may first be challenged by an optional recurso de reposición, within one month of the day after notification; the reclamación is also lodged within one month, by a document addressed to the body that issued the act. If both are lodged against the same act, the first goes ahead and the second is declared inadmissible. BOE-A-2003-23186
• Art. 2 de la Ley Orgánica 12/1995, de Represión del Contrabando. It makes it a smuggling offence, from 150,000 euros upwards, among other conduct, to obtain or attempt to obtain release of goods by alleging a false ground or by any other unlawful means; below that value, the same conduct is an administrative smuggling infringement (art. 11). BOE-A-1995-26836

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

Frequently asked questions