Post-Brexit UK Customs Enforcement Procedures
By Rachel Alexander and Carina Gommers, Wiggin
Rachel Alexander, Partner, Wiggin
Rachel is a Partner in the IP Litigation Group at Wiggin, advising clients on a wide range of contentious IP and commercial matters. She has particular expertise in copyright and trade mark litigation, online enforcement and intermediary liability, and has been involved in many of the key UK cases in this field.
Carina Gommers, Partner, Wiggin
Carina’s practice covers intellectual property rights litigation and trade mark portfolio management. She is the first (and only) woman in Belgium to be ranked ‘Gold’ by the World Trademark Review, and one of only three to have been included in the Managing Intellectual Property’s IP STARS 2020 Top 250 Women in IP.
The UK’s Brexit transition period ended on 31 December 2020. As a result, a number of expected changes to UK customs enforcement procedures have now come into force.
- UK customs enforcement procedures have changed following the end of the Brexit transition period
- The new UK process largely follows established EU procedures but there are some key points to note:
– There is a new UK specific customs notice form (AFA) for making notifications to UK Border Force
– Only UK IP rights may be relied on
– The new form requires confirmation of which parts of the UK the AFA is to cover
– New UK AFAs must be submitted via the HMRC portal
- EU AFAs filed with UK Customs before 1 Jan 2021 will remain valid only in the UK
- EU AFAs filed with Customs authorities in an EU-27 Member State before 1 Jan 2021 will no longer cover the UK
The Customs Regulation (Regulation (EU) 608/2013), which establishes a common process for the protection of intellectual property at the border of the EU, has become part of UK domestic law by virtue of section 3 of the European Union (Withdrawal) Act 2018 (as amended), subject to amendments made by the Customs (Enforcement of Intellectual Property Rights) (Amendment) (EU Exit) Regulations 2019 (SI 2019/514).
The amendments update language used in the Customs Regulation to ensure that it works in the context of UK domestic law. The retained Customs Regulation (as amended) enables the UK to provide a system of protection of IP rights at its borders which substantially mirrors the system provided in the EU. The amendments to the retained EU law do not have effect in relation to goods entering Northern Ireland from the Republic of Ireland or exiting Northern Ireland to the Republic of Ireland.
Key points to note in relation to the new UK procedures are as follows:
- There is a UK-specific Application for Action (AFA) for making notifications to UK Border Force. The form can be accessed from here.
- All new UK national AFAs must now be submitted through the HMRC portal (filing through the EU system is no longer possible). A Government Gateway ID and password is required.
- The UK national AFA differs from the EU equivalent in so far as the applicant is required to confirm which parts of the UK the AFA is to cover i.e., whether it is to cover Great Britain or Northern Ireland, or both.
- The UK AFA may be based on any of the following IP rights provided they are protected under UK law:
- Registered trade marks (i.e., UK national marks / international trade marks designating the UK / EU trade marks that have been cloned to create equivalent UK rights);
- Copyright (or related rights);
- Registered design rights (i.e., UK national design rights / international design registrations designating the UK / registered Community designs that have been cloned to create equivalent UK rights);
- Supplementary protection certificates for medicinal products or plant protection products;
- Plant variety rights recognised in the UK;
- Topography of a semiconductor product;
- Trade names protected under UK law.
- Those wishing to protect geographical indications in Northern Ireland can file an EU AFA either with HMRC (by sending it to firstname.lastname@example.org) or with an EU-27 Member State Customs office. The territorial scope of protection will differ depending on the filing route used.
Rightsholders using customs enforcement procedures should also be aware that:
- EU AFAs filed via UK Customs before 1 January 2021 will remain valid in the UK but will no longer cover any of the EU-27 Member States.
- EU AFAs filed with Customs authorities in an EU-27 Member State before 1 January 2021 will no longer cover the UK.
- New EU AFAs filed via Customs authorities in an EU-27 Member State will not be valid in the UK.
For a quick reference summary guide to these changes and potential actions that will need to be taken, click here
Access the original article here
Wiggin LPP is a London-based law firm focused on media, technology, and IP. They advise clients on the financing, exploitation, and protection of their creative and commercial assets in these sectors.
Wiggin’s IP team specializes in protecting clients’ rights robustly and creatively. They are renowned for online content, anti-piracy and anti-counterfeiting work and have been at the forefront of the most significant cases in this field.
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