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 EUROPE, MIDDLE EAST & AFRICA: NORWAY

CHANGE IN THE NORWEGIAN CUSTOMS ACT BENEFIT THE FIGHT AGAINST COUNTERFEITS
Author: Hans E. Skirstad, Bull & Co Advokatfirma AS

Beginning on September 1, 2007 the Customs Act was changed to the benefit of owners of Intellectual Property Rights.  Before then, Norwegian Customs could only assist in blocking the importation of goods infringing Intellectual Property rights if the right holder got an interim injunction from the courts.

If Customs prior to 1st of September 2007 detected goods suspected of infringing IP rights, it could neither detain the goods, nor inform the right holder because Customs were bound by a duty of secrecy. The duty of secrecy for customs officers apply for offences with maximum sentences of less than six months imprisonment.  Infringement of IP rights mostly have a maximum sentence of three months, and no IP right has a maximum sentence above six months.

The state of the law on this field meant that right holders in Norway who had not been granted an interim injunction, enjoyed less protection than right holders within the EC.

With effect from 1st of September 2007, Customs may now inform right holders and detain goods suspected to be infringing IP rights for up to five days. Thus, if counterfeits are found by Customs, the representative in Norway will be alerted and the right holder has five days to establish an interim injunction. 

The change in the law has lead Customs to implement a system where right holders may file a general form notifying customs of their IP rights, its products protected through the rights, the problems of counterfeits and how to spot counterfeits. This is important as the customs officers depend on information to spot counterfeit goods.

The possibility of an interim injunction is still present and still important for holders of Intellectual Property rights. To obtain such an injunction, the IP owner shall prove reason for
(i) believing that an IP right is being infringed; and
(ii) detaining the alleged infringing goods (e.g., to prevent potential substantial loss).

The Courts will inform customs of the injunction and order them to seek to detect and detain the infringing goods. If goods are detained, the right holder will be informed and he will be given a deadline - usually two months - to take legal action against the alleged infringer. Within that period he will be able to inspect the detained goods. If no action is taken within the set deadline the goods will be released to the owner.