The application is made by means of pre-established forms which are available on the customs authority’s website. In Germany, the required data can be entered directly into an online form available on the ZGR website. Later, if the application is granted, the ZGR forwards this form to the border authorities. That is, it is made available through the customs intranet. The intranet is the information tool that is consulted by border personnel to detect suspected shipments. Accordingly, the success of the measure significantly depends upon the data and illustrations given by the right holder when completing the form.
The effectiveness of an application for action by customs depends on the accuracy and thoroughness of the information that customs authorities receive regarding the goods and the potential infringer. The more information is available to customs, the greater the chance that infringing items will be detected.
The right holder must provide a guarantee. In case of customs actions based on the Regulation, it is sufficient to provide an assumption of liability for the case where the detained goods in question are subsequently found not to infringe the asserted IP rights, if the holder of the goods or declarant has suffered damage in that regard. The assumption of liability, which is contained as an undertaking in the application form (see Annex I of the Implementing Regulation), shall cover eventual damages resulting from an unjustified detention of goods. There is no rating of creditworthiness or other similar check; the signed undertaking is sufficient.
The situation is different in the case of customs actions based on German national rules. Here a security bond is necessary. According to §108(1) of the Code of Civil Procedure, this security bond shall be a written, irrevocable, unlimited in time, absolute, unconditional and directly liable bank guarantee to cover eventual damages resulting from an unjustified detention. For the time being, the ZGR requires a bond of EUR 10,000 from a bank which is officially accredited to operate and provide financial services within German territory. If it is too difficult to find a suitable bank, the right holder may also deposit the amount into a trust account with any deposit agency of a German Court.
The application is processed ex parte. When the ZGR receives the application, it checks whether the requirements are met, specifically whether the application contains sufficient information to enable the detection of the goods in question, and whether a sufficient guarantee is provided. Following the filing of the application, the ZGR may informally contact the right holder if any information is missing. The ZGR does not, however, assess the validity of the rights. It is satisfied with an excerpt from the register showing that the rights are in force. The ZGR also does not check whether the applicant’s statements are correct. The customs authorities rather rely on the written factual allegations and explanations of the right holder. Once the application is granted, the ZGR feeds the information contained in the application into the customs intranet, which is then available at the customs offices.
During the time period of the validity of the customs order, the facts on the ground may change. For instance, the right holder may become aware of new potential infringers, or may obtain better information on the means of transportation and the commercial channels used for shipping the suspect goods. As new or more accurate information becomes available, the customs application should be updated. This can be done easily through the ZGR website.