Remedies Under Customs Act, 1962 And Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007:
What are the remedies under Indian Customs Act for Customs Recordal / Border Protection / Border Measures to protect Intellectual Property Rights in India?
The Customs authorities are empowered to seize all Intellectual Property infringing goods at the point of entry itself. Customs Act, 1962 has been designed to prohibit import of goods that infringe intellectual property. Its relevant provisions may be summarized as follows:-
• Section 11 of the Act empowers the Central Government, for the purposes specified in Section 11(2), to prohibit the import or export of goods of any description by issuing a notification.
• Section 11(2)(n) read with Section 11(1) of the Act empowers the Central Government to prohibit the import or export of goods for the protection of patents, trademarks and copyrights.
• Section 11(2)(u) covers prohibition for the prevention of the contravention of any law for the time being in force.
• Section 111 and Section 113 of the Act empowers the Customs to confiscate improperly imported and exported goods respectively.
On May 8, 2007, the Central Government vide Notification No. 49/2007- Customs (N.T.), prohibited the import of the following goods, subject to conditions and procedures as specified in the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007. The said rules were notified with a view to strengthen the statutory and executive guidelines provided for the protection of intellectual property rights at the borders.
Under the rules,
• An intellectual property right holder may give notice in writing to the Commissioner of Customs or any Customs officer authorized in this behalf by the Commissioner, requesting for suspension of clearance of goods suspected to be infringing intellectual property rights.
• Such notice shall be given in the format prescribed in the Annexure to the Rules
• Such notice should be registered or rejected within the prescribed number of days provided for furnishing information required to be filed with the notice.
• In case the notice is registered, the minimum validity period shall be one year unless the noticee or right holder requests for a shorter period for customs assistance or action.
The Deputy/Assistant Commissioner of Customs may suspend the clearance of imported goods on its own initiative too if he has a reason to believe that the imported goods are suspected to be goods infringing intellectual property rights.
Where such goods, as have been detained or seized by the Deputy/Assistant Commissioner of Customs, are found to have infringed intellectual property rights, and have been confiscated under the Customs Act, 1962, they shall be destroyed by such official under official supervision or disposed outside the normal channels of commerce after obtaining ‘no objection’ or concurrence of the right holder. The right holder can raise objection on the mode of disposal within the prescribed working days after having been informed so.
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