This article explores the importance of filing a UK customs Application for Action (AFA). It’s integral to supporting your IP strategy, and Albright IP can assist you in preparing and maintaining an application.
What is an AFA? (Application for Action)
An AFA is a means of recording a portfolio of rights, authentication techniques and relevant information with customs authorities to seek their proactive engagement and support in protecting your IP rights in the relevant market. Since 1 January 2021, in accordance with Brexit provisions, European Union AFAs are no longer valid or enforceable in the United Kingdom. As such, separate UK-national AFAs are now required for rights holders to empower UK customs authorities to uphold their IP rights.
How can it help my business?
As the cost-of-living crisis continues, a growing number of consumers are predicted to seek cheaper alternatives to branded goods. In doing so, consumers are increasingly likely to encounter replica or counterfeit products, whether knowingly or otherwise.
It is widely appreciated that counterfeit goods damage the reputation and revenue streams of legitimate businesses through diversion of sales and by substituting authentic goods with poorer quality imitations. However, less-widely appreciated are the risks posed to the purchasing consumer who may directly suffer the financial and physical impacts posed by poor quality imitations. Certain sectors are particularly susceptible to the damaging risks posed by counterfeits, not least the pharmaceutical and cosmetics industries, where untested ingredients can impact consumers’ health and wellbeing.
While customs authorities regularly check imports to the United Kingdom for counterfeit goods, there is a finite time (10 days for general goods, or three days for perishables) for which suspicious shipments will be detained. On top of that, many authorities are restricted by pressure on resources.
If the authorities suspect goods infringe an IP right (Trade Mark, Design, Patent and/or Copyright), they will contact the rights holder (or their authorised Representative) to request verification of the goods in question. However, as many rights holders do not hold registered AFAs, it is simply not possible for the authorities to give notice of a suspect shipment. This could result in the dissemination of potentially infringing goods into the UK market. Recovery, and prosecution of those responsible for the importation, circulation and sale of the goods becomes an infinitely more difficult task, and the damage inflicted to brands and consumers can be extensive.
An AFA effectively bridges the communication gap, providing authorities with a direct means of liaising with rights holders, permitting swifter authentication of suspect goods before they can reach consumers. By permitting rights holders to include training materials with the application, the AFA can serve as an effective means of educating and training the relevant authorities to identify counterfeit indicators for a brand, in turn, helping to reveal unauthorised importers, exporters, manufacturers and distributors. Such materials help to build familiarity of customs authorities with business’ products, encouraging a more proactive approach to the identification, seizure and prosecution of illicit shipments, and the bad actors they are linked with. In short, the AFA is a cost-effective, proactive means of removing counterfeit products before they reach intended consumers and can serve as a powerful intelligence tool to aid and develop your IP and Brand Protection strategy.
What do I need to proceed?
Firstly, you will require UK Trade Mark Registrations for the goods you wish to protect.
A Government Gateway ID is also a necessity, so your business must be registered with HMRC. If you do not have a Government Gateway ID, creating a new account is relatively straightforward.
In advance of filing a UK AFA, we recommend compiling the following information (wherever possible) which can be submitted within the AFA:
- UK Marketing catalogues and materials
- Details of authorised manufacturers, as well as UK logistics partners, importers and wholesalers
- Images of the products, showing the Trade Mark(s) applied to the goods
- Images comparing genuine labelling to counterfeit labelling
- Images comparing genuine packaging to counterfeit packaging
- Images of counterfeit goods (and key counterfeit indicators)
- Training materials concerning the identification / verification of counterfeit goods
- A list of approved importers, exporters, manufacturers, retail partners, logistics partners
- Information as to the differences between the appearance, packaging and or labelling of goods destined for the UK market, and those destined for the EU.
If you would like to discuss the requirements for filing a UK AFA, please contact our Trade Mark department via trademarks@albright-ip.co.uk where a member of the team will be pleased to assist.