My imported goods were detained for intellectual property infringement. Is simply proving them to be genuine products enough for customs clearance? Do I also need to check the possibility of parallel imports? Released

It is understood that you are greatly concerned as your imported goods have been held for customs clearance due to suspected intellectual property infringement. As you inquired, I will explain in detail from the perspective of a customs broker whether customs clearance is possible simply by proving that the goods are genuine products, and whether it is necessary to check the possibility of parallel import.

1. Importance and Requirements of Proving Genuine Products

One of the main reasons customs decides to suspend clearance due to suspected intellectual property infringement is to prevent the domestic distribution of counterfeit goods. Therefore, proving that your imported goods are 'genuine products', lawfully manufactured or distributed with the rights holder's permission, is the first and most crucial step for resuming customs clearance.

To prove that the goods are genuine products, you can prepare the following documents:

• Proof of Genuine Purchase Documents: Documents that clearly show the purchase route, such as purchase receipts, contracts, invoices, and packing lists.
• Confirmation Letter from Manufacturer or Overseas Seller: A document confirming that the goods were produced and distributed by the rights holder (e.g., trademark owner) or by a manufacturer/seller officially authorized by the rights holder.
• Proof of Origin Documents: Documents that confirm the origin of the goods, such as a Certificate of Origin, and prove that the said origin is associated with the rights holder.
• Supply Chain Related Documents: Materials demonstrating the legality of the supply chain, extending from importer to overseas supplier to manufacturer.

If these documents clarify that the goods are genuine products lawfully branded and distributed in a foreign country, import clearance is highly likely to be permitted. However, an important matter that needs to be further reviewed, despite the goods being genuine, is the possibility of 'parallel import'.

2. Necessity of Confirming the Possibility of Parallel Import

Even if the goods are genuine, clearance may be restricted if they do not meet the requirements for parallel import. Parallel import refers to the import of a specific foreign product, already being imported domestically by an exclusive importer, by a third party through a different distribution channel without the permission of the domestic exclusive importer. The crucial point here is that the goods must be 'genuine products'. Counterfeit goods cannot be subject to parallel import in the first place.

In Korea, the function of trademark rights is considered to be 'source indication' and 'quality assurance', and as a principle, parallel imports are permitted to the extent that these functions of trademark rights are not impaired. However, for certain products, if there is a possibility of harming the trademark owner's reputation or causing consumer confusion, parallel imports may not be allowed. For example, this could apply where services such as A/S and quality assurance provided by the domestic exclusive importer are not offered for parallel imported goods, potentially causing confusion to consumers.

Therefore, even if your goods are confirmed as genuine products, you must verify whether they fall under items for which parallel import is not permitted.

How to Check the Possibility of Parallel Import:

For items with registered trademarks at customs, you can check the possibility of parallel import through the Korea Customs Service UNIPASS system.

• Access Path: Korea Customs Service UNIPASS (https://unipass.customs.go.kr) → Information Inquiry → Customs Clearance Information → Import → Trademark Customs Declaration Information → Detailed Trademark Customs Declaration Information Inquiry

Through this path, you can enter the relevant trademark name or trademark owner information to check whether the possibility of parallel import is indicated as 'Y' or 'N' for each designated product.

If the trademark is not registered with customs, it will not be searchable on UNIPASS. In such cases, it is necessary to individually determine whether the parallel import requirements for the respective trademark are met. This process requires legal interpretation, so a comprehensive review of the positions of the trademark owner or domestic exclusive importer, relevant precedents, and authoritative interpretations is required, and expert assistance is essential in this process.

3. Comprehensive Understanding and Response to Intellectual Property Clearance Suspension

Customs clearance suspension for intellectual property infringing goods may not be limited solely to trademark issues. Various forms of intellectual property infringement, such as copyright, design rights, and patent rights, may also be examined. Therefore, in your case, it is important to ascertain the exact intellectual property (e.g., trademark) infringement suspicion that led to the clearance suspension from customs.

If the submitted documents do not sufficiently prove the goods are genuine, or if they are determined to be items for which parallel import is not possible, customs may disallow clearance of the goods and issue a destruction order or demand their return. Furthermore, if deemed an intentional infringement, legal penalties under the Customs Act and relevant intellectual property laws may follow, thus requiring a cautious response.

In conclusion, when customs clearance is suspended due to suspected intellectual property infringement, both 'proving that the goods are genuine products' and 'checking the possibility of parallel import' are essential procedures. This process demands complex and specialized knowledge, including the types of documents to submit, legal interpretations, and explanation procedures with customs. Therefore, if you face such a situation, we strongly recommend seeking consultation with a customs broker specializing in intellectual property clearance to conduct an accurate situation analysis and devise effective response strategies. Proactive review to minimize unnecessary risks and facilitate smooth clearance is the wisest approach.

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