According to a study in terms of economy-specific patterns, the analysis indicated that a few provenance economies dominate small parcel trade. These include China, Hong Kong (China), India, Singapore, Thailand and Turkey.1
The list which points out "top 10 provenance economies of small shipments containing fakes for the IP-intense sectors" published in this study ranked Turkey number 3 in "Perfumery and cosmetics", number 4 in "Articles of leathers & handbags", number 4 in "Clothing and textile fabrics", number 5 in "footwear", number 7 in "jewellery" and number 5 in "watches" referring to customs seizure data. The statistics mentioned in the study obviously leads to the necessity deterring measures against the small shipments.
Current Legislation :
The Customs Act and its regulation in force provide the protection of intellectual and industrial property rights at the Turkish Borders. In view of these regulations, counterfeits which are transported through borders can be suspended either upon the Intellectual Property Rights ("IPR") holder’s application or ex officio by the Customs.
There is no distinction and specific provision for the shipments based on their quality and quantity stipulated in the current Turkish Customs Act.
De Minimis Principle :
The only reference to the quality of a shipment is for commercial and non - commercial goods. According to the Customs Act the shall not apply to non commercial goods which are within the Customs duty exemption limits.
The absence of a clear reference to small shipments in Customs legislation cause hesitation for the Customs officers to suspend small shipment counterfeits. This unfortunately encourages the counterfeit manufacturers in minimizing their risk of seizure by using small shipments.
Turkey, however, is now in the eve of enacting a new Customs Law which regulates the matter besides other issues.
What the Draft Customs Law says :
Draft Customs Law has been adapted from Regulation (EU) No 608/2013 in line with the harmonization of EU legislation. This Regulation, (EU) No 608/2013, sets out a new procedure applicable regarding the small shipments. The Draft Law requires the request of the Customs application holder for counterfeit and pirated goods which have been sent by post and courier in small consignments. Under such procedure, the suspected goods may be destroyed without the involvement of the IPR holders in cases where the declarant or holder of the goods has agreed or has been so presumed.
This amendment states that small shipments which are suspected to be counterfeit shall be suspended by the Customs authority. Following the suspension, its Customs notification including destruction would be sent to the owner of the shipment or declaration.
If the owner of the small shipment accepts the destruction or remains silent to the destruction notification within 10 business days as from the date of the destruction notification, these goods shall be destroyed under Customs supervision.
In case the owner of the shipment or declaration rejects the destruction notification, the IPR holder should submit an injunction decision to prevent the release of the shipment within 10 business days after its notification of that rejection statement. Failure to submit an injunction order will result in the release of the small shipment.
It is required that IPRs holders shall accept to take action on small shipments specifically during their Customs application to be filed before Turkish Ministry of Trade.
Therefore, IPR holders who are not interested in receiving notifications regarding small shipments will be out of the Customs monitoring system for small shipments.
According to the Draft the quality and quantity of “small shipments" will be announced by the decision of the Council of Ministers.
The Draft Customs Law distincts the shipments based on their size by adding a specific provision for the small shipments. This provision has been created in order to support Customs administrations in the controls of small shipments.
The anticipated change will enable the Customs officers suspend counterfeits in small shipments with the proviso that the application of the right holder before the Customs includes a clear request concerning the monitoring of small shipments.
The new provision provides a cost-effective and straightforward destruction option for the IPR holders which do not prefer to act against small shipments due to the costly and time consuming court proceedings.
- 1 https://euipo.europa.eu/tunnelweb/secure/webdav/guest/document_library/observatory/documents/reports/Trade_in_fakes_in_small_parcels/Trade_in_Fakes_in_ Small_Parcels_en.pdf