In a bid to strengthen the protection of IP rights in Kosovo, Parliament has approved the Law on Customs Measures for Protection of IP Rights (Law 03/L-170, December 29 2009) and its administrative regulation, which set out the procedures and measures that Customs must undertake when goods are suspected of infringing or found to infringe IP rights.

The legislation further outlines the rights and obligations of the rights holder in cases when goods are found to infringe IP rights. The rights holder may apply in writing to request that Customs begin the procedure for IP rights protection. The application for action must be submitted together with a declaration of liability and proof that the rights holder holds the right in the goods. Customs will process the application and notify the applicant in writing of its decision within 30 working days of receipt of the application for action. However, Customs may reject the application for action if it does not contain the mandatory information and documentation. Under the new law, an applicant may appeal Customs' decision within 30 days.

Once the application for action is completed, Customs must state the period in which the action will take place. This period must not exceed one year from the date of acceptance of the application. At least 15 days before expiry of this period – subject to the prior discharge of any debt owed by the rights holder – the latter may request an extension. Customs must immediately send any decision granting an application or an extension to all its offices. The rights holder must notify Customs if its rights will expire. If the rights holder does not notify Customs, it will be subject to offence provisions.

Customs can detain goods or suspend the release of goods:

• when it has substantial reason to suspect that the goods in question infringe an IP right, even before an application is filed. In such cases it should notify the rights holder, which can submit an application for action within three working days. If no application is filed, the goods will be released or the period for detention will be stopped if all customs procedures are completed; and
• after receiving the decision granting the application for action filed by the rights holder.

The new law gives Customs the right to authorise a simplified procedure for the destruction of goods suspected of infringing an IP right with the written consent of the declarant, holder or owner of the infringing goods. The destruction is carried out at the expense and under the responsibility of the rights holder. In such case there is no need to determine whether an IP right has actually been infringed.

The new law requires a rights holder which suspects that its IP rights have been infringed to notify Customs within 10 business days if it wishes to initiate court proceedings. If court proceedings are initiated, the period of suspension of the release of goods or detention is extended until the court reaches a decision concerning the infringing goods.

If the court finds that the goods have infringed an IP right, the goods will not be:

• allowed to enter into the customs territory of Kosovo;
• released for free circulation;
• removed from the customs territory of Kosovo;
• exported;
• re-exported;
• placed under a suspension procedure; or
• placed in a free zone or free warehouse.

If the rights holder infringes IP rights, it will be subject to penalties determined by the legislation.

In practice, taxpayers have rarely used the law to protect their IP rights. Thus, the infringement of IP rights is still a problem in Kosovo.

For further information please contact Mirjeta Emini or Fitore Mekaj at Boga & Associates by telephone (+355 42251050), fax (+355 42251055) or email (memini@bogalaw.com orfmekaj@bogalaw.com). The Boga & Associates website can be accessed at www.bogalaw.com.

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