Regulatory framework

Customs Code no. 95/2021, Codul vamal nr.95/2021
Regulation regarding the implementation of Customs Code no. 95/2021, approved by Government Decision no. 92/2023, Regulamentul de punere în aplicare a Codului vamal nr.95/2021, aprobat prin Hotărârea Guvernului nr.92/2023

Intellectual property is private property, which belongs to individuals or legal entities and includes objects resulting from intellectual activity carried out in the industrial, economic, commercial, scientific, informational, literary and/or artistic fields, as well as in other fields.

The right of persons to intellectual property is guaranteed by Article 33 of the Constitution of the Republic of Moldova. Any third person infringing that right shall be held liable pursuant to the civil, contravention or criminal law.

The measures aimed to ensure the observance of intellectual property rights have been applied by the Customs Service since 2001, when the Republic of Moldova joined the World Trade Organisation.

The State Agency for Intellectual Property (AGEPI) is the central administrative authority under the Government, that is responsible for promoting and carrying out activities in the field of legal protection of intellectual property regarding industrial property rights, copyright and related rights.

The Customs Service, in its capacity of competent administrative authority under the Ministry of Finance, intervenes to protect intellectual property at the time when goods suspected of infringing an intellectual property right are detected, including when such goods are as follows:

entered or removed into/from the customs territory of the Republic of Moldova
declared for the purpose of placement under a customs procedure
under customs supervision in any other situation
not declared upon entry/removal into/from the country and discovered by the customs authorities during the customs control
under the property of the State through confiscation or abandonment in favor of the State.

I. Submission and examination of the application for action

To enjoy customs protection, the rightsholders of intellectual property objects shall submit an application for action (.docx, .pdf), either in hard copy or electronically, to the Central Office of the Customs Service (located in Chisinau city, at 30, Nicolae Starostenco Street) in accordance with the provisions set forth in Law no. 124/2022 on Electronic Identification and Trusted Services.

The application for action shall be completed in two original copies, as provided for in Article 362 of Customs Code no.95/2021 (the Code) and the Completion Rules, according to the template form provided in Annex 48 to the Regulation on the implementation of Customs Code no. 95/2021, approved by Government Decision no. 92/2003 (the Regulation).

The followings shall be attached to the application for action:

the declaration of the rightsholder (.docx, .pdf)
the proof that the applicant is the intellectual property rightsholder
the proof of representation of the intellectual property rightsholder’s interests before the Customs Services, as the case may be.

Photos of the original goods and the samples thereof may be attached to the application for action.

The Central Office of the Customs Service shall examine the application for action under the terms and conditions specified in Article 15 of the Code and shall notify the applicant on the results of examination in the manner established in Article 22 of the Code.

Acceptance of the application for action shall not entitle the rightsholder to request the Customs Service for compensation or repair of the damage, if it is not the latter who detected the goods likely to infringe an intellectual property right.

Where the application for action is accepted, the Central Office of the Customs Service shall set the time-period for the customs to take action; in no case shall such period exceed one year since the date of issue of the acceptance decision. The rightsholder can request the extension of the action period providing that the request for extension is made at the latest 30 days before the expiry date thereof, under the conditions provided for in Article 363 (1), (2) of the Code and p. 888, p. 889 of the Regulation.

The request for extension of the action period shall be completed and submitted to the Central Office of the Customs Service in two copies, according to the template model provided in Annex 50 to the Regulation (.docx,.pdf).

Where the application for action or the request for extension of the action period is rejected by the Central Office of the Customs Service, the rightsholder concerned may appeal the decision issued, in accordance with the requirements on appeals against customs decisions, provided for in Section 5, Chapter II (Title I) of the Code.

The application for action (in case of rejection) may be submitted repeatedly only if duly completed according to the requirements of the regulatory framework in force.

II. Procedures applied to goods likely to infringe intellectual property rights

The Customs Service intervenes in order to protect intellectual property rights where an application for action is made to, and accepted by, the Central Office of the Customs Service or ex-officio, through measures undertaken prior to submission of the application for action.

a) Procedures applied based on the application for action

Based on the accepted application for action, the Customs Service shall suspend the release of the goods suspected of infringing intellectual property rights or shall detain such goods for a period of 10 (ten) working days, and, of 3 (three) working days in case of perishable goods.

The Customs Service shall provide a written notification to both the rightsholder and the declarant / holder of the goods on the measure applied according to the template form provided in Annex 51 and Annex 52 of the Regulation.

The period of 10 (ten) working days shall start on the day when the rightsholder receives the notification. The day when the notification is received shall not be included in the calculation of the number of working days.

In duly justified cases, providing the written application of the rightsholder, the Central Office of the Customs Service may provide an extension by no more than 10 (ten) working days of the period set for the suspension of release of the goods suspected of infringing intellectual property rights or the period set for detention of such goods. The period of detention of perishable goods shall not be extended.

The rightsholder shall, within 10 (ten) working days, or 3 (three) working days for perishable goods, from the date of notification on suspension of release, or detention of the goods, confirm in writing to the Customs Service that an intellectual right has been infringed.

If, within 10 (ten) working days, or 3 (three) working days for perishable goods, from the date of receipt of the notification, the rightsholder fails to confirm that the goods listed in the notification infringe intellectual property rights, the Customs Service shall lift the measure of suspension of release, or detention of the goods and shall proceed with appropriate customs procedures.

In the event that the declarant/holder of the goods contests the measures of suspension of release, or detention of the goods likely to infringe intellectual property rights within 10 (ten) working days from the date of suspension of release, or detention of the goods likely to infringe intellectual property rights, and the rightsholder does not initiate court proceeding within 10 (ten) working days, the Customs Service shall lift the measure of suspension of release, or detention of goods and shall proceed with appropriate customs procedures. The term of 10 (ten) working days shall start on the date when the rightsholder receives, from the Customs Service, the copy of the objection submitted by the declarant/consignee of the goods.

In the event of suing the declarant/holder of the goods, the rightsholder shall immediately notify the Customs Service on such action. The Customs Service shall detain goods likely to infringe intellectual property rights until the court decision becomes final and irrevocable.

b) Destruction of goods that are the subject of small deliveries

This procedure applies to goods if all the conditions mentioned below are met:

the goods are likely to be counterfeit or pirated goods
the goods are not perishable products
the goods are covered by a decision to accept an application for action
the rightsholder has requested, in the application for action, the application of the procedure provided for in this article
the goods are transported in small deliveries.

According to Article 359 p.9) of the Code, a small delivery refers to a postal or express delivery that contains no more than 3 (three) units or has a gross weight of no more than 2 (two) kilograms.

c) Measures prior to the submission of the application for action (ex-officio procedure)

Where no application for action is submitted, or until such application for action is submitted and accepted, the Customs Service may, ex-officio, suspend the release of the goods likely to infringe intellectual property rights or detain such goods for a period of 4 (four) working days, and subsequently provides a written notification to the rightsholder and the declarant/holder of the goods about the measure applied. The measure of suspension of release and detention shall not apply to perishable goods.

The acceptance, by the Central Office of the Customs Service, of the application for action submitted within the 4 (four) working days shall imply the initiation of action by the Customs Service to protect the intellectual property according to Article 364 (2) - (11) of the Code.

In the event that the rightsholder fails to submit the application for action within 4 (four) working days, the Customs Service shall lift the suspension of release, or detention of goods and shall proceed with the appropriate customs procedures.

III. Measures applicable to goods infringing intellectual property rights

The rightsholder can decide to apply the following measures to goods that infringe intellectual property rights:

destruction under the conditions set forth in Article 365 and Article 366 of the Code, according to which the rightsholder must destroy the goods that infringe intellectual property rights in compliance with the rules on environmental protection
transmission free of charge under the conditions set forth in Article 367 of the Code, according to which the goods that infringe intellectual property rights may be transmitted free of charge, depending on the nature thereof, to certain public institutions in the field of social or health protection, to certain public education institutions, public associations or humanitarian foundations, sports associations or clubs, natural persons who have suffered as a result of natural disasters
effective deprivation of the persons involved in the economic profit of the operation, in compliance with Article 368 of the Code.

IV. Costs and expenses

The rightsholder of intellectual property shall not pay royalties and fees to cover the costs of administrative expenses related to the management of the application for action and the extension of the action period.

Until the application for action is accepted (according to the ex-officio procedure), the goods likely to infringe intellectual property rights shall remain under temporary storage and under the responsibility of the owner of the goods.

Goods likely to infringe intellectual property rights, in respect to which suspension of release or detention has been decided (based on the application for action) shall remain under temporary storage and under the responsibility of the owner of the goods. From the moment the Customs Service receives the response of the rightsholder that the goods concerned infringe intellectual property rights, all the expenses related to the temporary storage of the goods shall be borne by the rightsholder.

The destruction of goods that infringe intellectual property rights shall be carried out by the rightsholder, at its expense and under its responsibility.

Contact data:

The Intellectual Property Protection Service within the Customs Fraud Investigation Directorate

Landline: + 373 (22) 632 930

Email: ipr@customs.gov.md

Registrul Obiectelor de Proprietate Intelectuală (OPI)