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
Poulomi Paul
