In the European Union (EU), customs enforcement of intellectual property rights (IPRS) takes place in terms of Regulation (EU) No. 608/2013 of the European Parliament and of the Council, and in terms of the Commission Implementing Regulation (EU) No. 1352/2013 of 4 December 2013. Enforcement can be initiated by the customs authorities themselves, or it can be requested by private holders of IPRs.

One of the IPRs which can be enforced in this manner is what is more widely known as “plant breeders’ rights”. European Community law deals with these rights under the term “Community Plant Variety Rights” (CPVRs). CPVRs are granted to plant breeders on application after meeting strict requirements such as that the plant variety must be new, distinct, uniform and stable. As per the international norm, protection lasts for 25 years in the case of vines and trees, and 20 years in all other cases, calculated from the date on which a certificate of registration is issued.

The scope of a CPVR extends to the harvested material of the plant variety, for example fruit and cut flowers which are imported into the Community, where these are obtained through the unauthorized use of variety constituents of the protected variety and where the breeder has not had a reasonable opportunity to exercise his right in relation to the said variety constituents.

Applications for customs enforcement by private holders of IPRs must be submitted to the competent customs department designated by the Member States. There are two types of private applications: - National application: an application submitted in a Member State requesting its customs authorities to take action in that Member State. - Union application: an application submitted in a Member State requesting the customs authorities of that Member State and the customs authorities of one or more other Member States to take action in their respective territories.

In terms of procedure, the applicant claiming to be the holder of the protected IPR completes an application form requesting the customs authorities to take action with respect to goods suspected of infringing the specified intellectual property right. When granting the application, the customs authorities specify the period during which they are going to take action, which shall be for no more than one year.

The actual action taken by the customs authorities in the EU is a decision to detain the goods which are specified in the application when It enters their customs territory, pending a resolution of their legal status. Once an application has been granted, the applicant is known as the “holder of the decision”.

In view of several reports on the recent EU action on the importation of blackberries from South Africa[1], the following points of clarification may be helpful:

• The action taken by the EU Customs Authorities, after receiving a request from a private party, is to detain the product, based on the IP claims made in the application they receive. They do not adjudicate on the matter or validate the claims, they simply detain the product while the affected parties resolve their competing claims.

• The holder of the decision (the original applicant) has an obligation to inform the customs authorities if the status of its claimed IPRs as put forward in its application changes as a result of any legal or other proceedings between itself and other affected parties. This can then lead to the revocation of the decision to detain, with the goods then being released.

• Where subsequent legal proceedings between the parties determine that the goods detained on the basis of a previously granted application did not infringe the intellectual property right in question, the holder of the decision (the original applicant) shall be liable towards any other affected parties who has suffered damage.

• The holder of the decision (the original applicant) is obliged to only use information about a detention for certain specified purposes. Where it uses the information provided by the Customs Authorities for any other purposes, the competent customs department of the Member States where the information was provided or misused may revoke the decision or suspend it.

• It should therefore refrain from misrepresenting the nature of the action taken by the customs authorities. It should for example not claim that its IP claim had been validated by the specific customs authorities, or that the detention pending further action amounts to a “confiscation” of illegal goods.

Ending up in a situation where a highly perishable crop such as blueberries has been made the subject of a decision to detain, puts other affected parties such as the holder of the goods or the declarant at a distinct disadvantage, in that the product will most likely deteriorate, and will then be destroyed under other applicable EU rules, long before the affected parties can resolve any conflicting legal claims. The only option then for parties which can prove that the IP claims were unfounded, is to institute a claim for damages.

An important lesson from the recent events is therefore that it appears imperative that all South African producers and exporters of especially fresh produce under licence from holders of plant breeders’ rights, should as a matter of urgency make sure that all their rights are confirmed by way of a clear and unambiguous legal arrangement.

This is especially important if such products are exported to other countries, as the exhaustion of plant breeders’ rights through authorisation by the holder as a rule takes effect only at the national level, unless additional protected territories are added by agreement.

[1] See, for example, https://www.iol.co.za/capeargus/news/blueberry-industry-faces-blues-over-trading-rights-row-8017179e-251f-4e42-a80c-ce14ba44768c