LUXEMBOURG Law and Practice Contributed by: Emmanuèle de Dampierre and Florentine Frias, Elvinger Hoss Prussen
The rights holder must submit an application requesting the intervention of the customs authorities for goods suspected of infringing its IP rights. The application is made using the form annexed to Commission Implementing Regula - tion (EU) No 1352/2013. The rights holder pro - vides the customs authorities with information enabling them to authenticate the genuine goods (position of the trade mark on the product, dis - tinctive features) as well as useful information for assessing the risk of infringement. When customs authorities identify goods sus - pected of infringing an IP right covered by a deci - sion granting an application, they suspend the release of the goods or detain them. Beforehand, they may ask the rights holder to provide any relevant information with respect to the goods. The holder of the goods is notified within one working day of the suspension of the release of the goods or the detention of the goods by the customs authorities. Both the rights holder and the declarant have the possibility to inspect the goods. Several scenarios can then take place, including the destruction of the goods if the rights holder has confirmed in writing within ten working days (or three working days in the case of perishable goods) that an IP right has been infringed and that they agree to the destruction of the goods, and if the holder of the goods has also agreed, within the same deadline, on the destruction of the goods or remained silent. If the conditions for destruction of the counter - feits are not met, the rights holder must initiate proceedings to determine whether an IP right has been infringed, within ten working days of notification of the suspension of the release
or the detention of the goods. Otherwise, the goods will be released. Customs authorities can also act without an express request from the rights holder if they identify goods suspected of infringing an IP right. In such case, they endeavour to locate the rights holder or the person or entity potentially entitled to submit the application. If no applica - tion is submitted, the goods are released. Trade mark and authors’ rights infringement decisions can be appealed to the Court of Appeal. With respect to trade marks, decisions rendered by the BOIP can be appealed to the Benelux Court of Justice. 11.2 Timeframes for Appealing Trial Court Decisions An appeal to the Court of Appeal must, in prin - ciple, be lodged within 40 days from the day of notification of the judgment. This timeframe is increased by a distance delay for those domi - ciled abroad. Indeed, persons residing abroad benefit from a distance period when legal pro - ceedings are brought against them before a Lux - embourg court. This period varies from 15 to 35 days, depending on the place of residence of the defendant. An appeal may be lodged against the summary order within 15 days of notification. 11. Appeal 11.1 Appellate Procedure The timeframe for filing an appeal to the Benelux Court of Justice is two months from notification of the BOIP final decision.
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