Adv Gill Nadel
When the customs authority detains a shipment on the grounds of it containing forged goods and violating trademarks, the customs authority, as a routine, demands from the foreign manufacturer or official importer to deposit a bank collateral and file a claim against the violating importer, as a precondition for continuing the detainment of the goods (and not its destruction). This collateral is intended to cover the expenses of the violating importer if the claim is rejected and also, among others, to cover the customs expenses such as storage and destruction.
In cases where the identity of the suspected importer is not known for certain, for example if the importer is from the Palestinian Authority and he can not be located, in such cases should the collateral remain in the hands of customs, to insure the payment of storage and destruction expenses, or should it be returned to the owner of the rights?
Such a dispute was recently settled by the district court in Tel Aviv.
The Facts of the Case and Claims of the parties:
The customs authority found a shipment carrying the brand name of Tommy Hilfiger which was suspected as being forged. The importer who was signed on the shipment could not be located from the time the shipment was caught.
The global Tommy Hilfiger company and its official importer in Israel, Sea & Shells Ltd. Company,were told to deposit a bank guarantee at the customs authority, for the violating importer’s expenses if it turns out that the claim against him is unjustified.
When the violating importer could not be found, Tommy Hilfiger claimed the guarantee should be returned since it was not meant to cover the storage and destruction expenses of customs, and that in any case, it is the violating importer that should bare the expenses.
In opposition, the customs authority claimed that the gurantee should stay as it is until the court gives it verdict on the claim filed by Tommy Hilfiger, so that at the end of the day the customs authority could rest assured that the expenses of storage and destruction will be payed for, if the court does not find the importer liable for the violation.
The Court’s Decision:
The court ruled that since the dispute was a civil one (Tommy Hilfiger and the violating importer), obviously one of them will be obliged to pay the storage and destruction expenses and not the customs authority. The court ruled that since the customs authority was not a party to the dispute and since the claim was not filed by it, the guarantee must remain in the hands of the court until it gives its verdict and determines, among others, who is responsible for these expenses.
(C.F. (civil file) (District Tel Aviv) 31508-11-10 Tommy Hilfiger licensing llc Et. Al. Vs. Serichat Algantil Atazia, a decision from 27.1.11, Judge A. Nachnieli- Hayet. Names of the representatives of the parties were not mentioned).
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