Saturday, August 8, 2015

Role of Customs Authoritity in IP protection

In the wake of globalization and rise in international trade, intellectual property has gained immense significance. The best way to deter infringing goods from entering into a particular country is by confiscating the goods at the border itself. The Custom Authorities have started playing an active and role in obstructing the flow of infringing goods into the country by employing various border control measures.
The provisions under Section 11 of Customs Act, 1962 are as follows:  If the Central Government is satisfied that it is necessary so to do for any of the purposes specified in sub-section (2), it may, by notification in the Official Gazette, prohibit either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification, the import or export of goods of any specified description-(n) the protection of patents, trademarks and copyrights; (u)  the prevention of the contravention of any law for the time being in force;
Section 111 and 113 of the Act empowers the Customs to confiscate improperly imported and exported goods respectively.
According to the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007  vide[ Notification No. 47/2007-Cus. (N.T.), dated 8-5-2007 ] it is stated that”
 (a) “ goods infringing intellectual property rights"  means any goods which are made, reproduced, put into circulation or otherwise used in breach of the intellectual property laws  in India or outside India and without the consent of the right holder or a person duly authorized to do so by the right holder
(b) "intellectual property"  means a copyright as defined in the Copyright Act, 1957, trade mark as defined in the Trade Marks Act,1999, patent  as defined in the Patents Act, 1970, design as defined in the Designs Act, 2000 and geographical indications as defined in the  Geographical Indications of Goods (Registration and Protection) Act, 1999;
(c) “ Intellectual  property  law  means the Copyright Act, 1957, the Trade Marks Act,1999, the Patents Act, 1970, the Designs Act, 2000 or  the  Geographical Indications of Goods (Registration and Protection) Act, 1999 ;
(d) " right holder” means a natural person or a legal entity, which according to the laws in force is to be regarded as the owner of protected intellectual property right, its successors in title, or its duly authorized exclusive licensee as well as an individual, a corporation or an association authorized by any of the aforesaid persons to protect its rights.
3.  Notice by the right holder. –
(1) A right holder may give notice in writing to the Commissioner of Customs or any Customs officer authorised in this behalf by the Commissioner, at the port of import of goods infringing intellectual property rights in accordance with the procedures and under the conditions as set out in these Rules, requesting for suspension of clearance of goods suspected to be   infringing intellectual property right.
(2) The notice in respect of goods infringing intellectual property rights shall be given in the format prescribed in the Annexure to these Rules.
(3) Every such notice shall be accompanied by a document as specified by the Commissioner, evidencing payment of application fee of Rs. 2000 (two thousand rupees only). (4)      If any of the information as required in the format under sub-rule (2) is not provided, the Deputy Commissioner of Customs or Assistant Commissioner of Customs may, as the case may be, ask the right holder or his authorised representative to provide the same within 15 days, which may be extended on sufficient reasons being shown.(5) The right holder shall inform customs authority when his intellectual property ceases to be valid or if he ceases to be the owner of such intellectual property right
Prohibition for import of goods infringing  intellectual property rights.-  After the grant of the  registration of the notice  by the Commissioner on due examination, the import of allegedly infringing goods into India shall be deemed as prohibited within the meaning of Section 11 of the Customs Act, 1962.   
Disposal of infringing goods. - (1). Where upon determination by the Deputy Commissioner of Customs  or Assistant Commissioner of Customs , as the case may be,  it is found  that the goods detained or seized have infringed intellectual property rights, and  have been confiscated under section 111 (d) of the Customs Act, 1962 and no legal proceedings are pending in relation to such determination, the  Deputy Commissioner of Customs  or Assistant Commissioner of Customs , as the case may be,  shall, destroy the goods under official supervision or dispose  them outside the normal channels of commerce after obtaining 'no objection' or concurrence of the right holder or his authorized representative.

Poulomi Paul