When a customs authority detains a shipment: what to do first
When a customs authority suspends release of a shipment on suspicion of patent infringement, the first task is not to argue the merits. It is to identify who is asserting the patent, read the detention notice carefully, and decide within the short window the regulation allows whether to consent, contest, or seek release against security.
The legal basis for the detention
Customs authorities across the EU act under Regulation (EU) No 608/2013, which lets a rights holder apply for suspected infringing goods to be held at the border. Once the application is granted, customs can detain a shipment without a prior court order — the detention itself is an administrative step, not a finding of infringement.
The regulation sets two obligations that run at the same time. The rights holder must confirm, within the notified period, that the goods do infringe and that continued detention or destruction should follow. The importer, separately, is told the hold exists and given the reason stated in the notice. Neither confirmation nor notice settles the substantive question of infringement; both only keep the detention alive while that question is worked out.
What changes for you right now
The shipment stops moving the moment the notice is issued. Storage and demurrage costs start running against whoever is named as consignee, and if you are the importer, your ability to sell, distribute, or use the goods pauses until the procedure closes one way or another.
Two clocks start together and do not run at the same length. The rights holder's window to confirm the claim is one clock. Your own window to consent to destruction, contest the detention, or apply for release against security is the other, and it is usually the shorter of the two. Missing it does not pause the procedure — it can mean the goods are destroyed without any further reference to you.
What to do, in order
- Read the detention notice in full and note the patent identified, the authority that issued it, and the exact deadline stated.
- Check the patent register entry against the goods actually held. The description in a customs notice is drafted quickly and is not always precise.
- Instruct counsel before the reaction window closes. The choice between consent, contest, and release against security cannot be made after the fact.
- Request access to samples, photographs, or documentation of the detained goods through the customs authority itself, not through the rights holder directly.
- If you intend to contest the claim, prepare the substantive rebuttal in writing and file it strictly within the notified deadline.
- If the objection is filed and the dispute is not resolved at customs level, prepare for the underlying infringement question to move to whichever court holds jurisdiction over the patent.
Who decides, and on what evidence
The customs authority controls the detention procedure itself. It issues the notice, holds the goods, tracks the deadlines, and releases or destroys the shipment once the statutory window closes without a contest being filed. What it does not do is rule on whether the patent is actually infringed — that question sits outside the customs procedure.
| Stage | Who acts | What happens |
|---|---|---|
| Detention notice | Customs authority | Importer and rights holder are both notified; the reaction clock starts |
| Confirmation of the claim | Rights holder | Confirms the goods infringe and asks for continued detention or destruction |
| Consent or contest | Importer | Either consents to destruction or files a written objection within the window |
| Substantive decision | Competent court | Rules on infringement if the objection stands; for a unitary patent, this is the Unified Patent Court under the Agreement on a Unified Patent Court |
Regulation (EU) No 608/2013 sets the detention procedure and its deadlines. It does not itself decide whether infringement occurred. If the objection is not withdrawn and the parties do not settle, that question moves to whichever court has jurisdiction over the patent in dispute.
If your situation differs
The sequence above assumes a straightforward case: one patent, one shipment, no other dispute already running. Three common variations change what comes first.
If the detained goods embody an invention whose ownership is itself contested — for example, When a founder leaves with the prototype and its ownership was never assigned in writing — the customs procedure runs in parallel with that separate dispute, and neither can be resolved cleanly while the other is open.
If the licence covering the detained goods is expressed partly through a smart contract, What to do first in this situation step by step differs from the paper-only case set out above, because the terms enforced on-chain may not match the terms customs is shown on paper.
If the patent is a unitary patent under Regulation (EU) No 1257/2012 and Council Regulation (EU) No 1260/2012, any substantive infringement dispute that follows the detention falls to the Unified Patent Court rather than to a national court, under the Agreement on a Unified Patent Court. If the patent is a national patent instead, the competent forum is the relevant national court, and that forum is decided by where the patent is registered, not by where the goods were detained.
What this page does not cover
This page does not cover customs classification disputes unrelated to intellectual property, criminal proceedings arising from counterfeit goods, or the question of whether the patent itself is valid rather than infringed. It also does not set out national implementing rules for the detention procedure, since those vary by country and sit outside what can be stated here reliably.
Sources and limits
Where the detention record includes personal data about individuals connected with the shipment — a director, an agent, a consignee named in a shipping document — data-subject rights apply separately from the customs procedure itself: If you are named in a report overview explained how access requests to that data are handled.
Before deciding whether to contest a detention, many importers first check who they are actually dealing with on the other side of the shipment, particularly when the consignor is unfamiliar. Counterparty in Estonia and the deadline for that check follow a separate route, set out in our reports section rather than in this practice page.
Checked against: Regulation (EU) No 608/2013; Regulation (EU) No 1257/2012; Council Regulation (EU) No 1260/2012; Agreement on a Unified Patent Court. Last reviewed: March 2025.
Related situations
A related situation in this practice moves just as fast: What to do first in this situation and the steps that follow rarely wait for a convenient moment, in much the same way a customs detention does not.
What happens once you contact us
Reading a detention notice against the underlying patent, drafting an objection within the window, or preparing a request for release against security is exactly the point where a fixed procedure benefits from a second, faster read. A partner responds during working hours within minutes of your message. A price for the specific work follows within one working day.
Frequently asked questions
What is the first step when a customs authority detains a shipment?
Read the detention notice and confirm the patent and the issuing authority named in it against the goods actually held. Do not respond to the rights holder directly before that check is done — the description in the notice is not always precise.
Which deadline is already running?
Two deadlines run in parallel from the moment of notification: the rights holder's window to confirm the claim, and your own, usually shorter, window to consent to destruction or contest the detention. Missing either changes the outcome without further notice being given.
Who decides, and on what evidence?
Customs decides only whether to continue the detention procedure, based on the notice and the rights holder's confirmation of the claim. Whether the patent is actually infringed is a separate question, decided by the competent court, not by customs.