Intellectual Property Rights (Imported Goods) Enforcement
Rules, 2007
[ Notification No. 47/2007-Cus. (N.T.), dated 8-5-2007 ]
In exercise of the powers
conferred by sub-section (1) of section 156 of the Customs
Act,1962(52 of 1962), read with clauses (n) and (u) of sub-
section (2) of section 11 of the said Act, the
Central Government hereby makes the following rules,
namely:-
1. Short title, commencement and application. -
(i)
These may be called the Intellectual Property Rights (Imported
Goods) Enforcement Rules, 2007.
(ii)
They shall come into force on the date of their publication in
the Official Gazette.
(iii)
They shall apply to imported goods.
2. Definitions.
(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
4. Registration of notice by the Commissioner. -
(1) Within 30
working days from the date of receipt of the notice under
sub-rule(1) of Rule 3, or from the date of expiry of
the extended time as contemplated in sub-rule (4) of Rule3,
as the case may be, the Commissioner shall notify the applicant
whether the notice has been registered or rejected.
(2) In a case where the
notice has been registered, the Commissioner shall indicate the
validity period of the registration during which assistance by
Customs shall be rendered. The minimum validity period shall be
one year unless the noticee or right holder requests for a
shorter period for customs assistance or action.
(3) The Commissioner
granting the registration of the notice under sub-rule (2) shall
inform, immediately through a letter by speed post or through
electronic mode, all Custom offices covered by the notice of the
details of the notice.
5. Conditions for
registration. - The grant of registration under rule 4
shall be subject to following conditions, namely: -
(a) the right holder or his authorised
representative shall execute a bond with the
Commissioner of Customs for such amount with
such surety and security as deemed
appropriate by the Commissioner, undertaking to
protect the importer, consignee and the owner of the goods and
the competent authorities against all
liabilities and to bear the costs towards
destruction, demurrage and detention charges incurred till the
time of destruction or disposal, as the case may be;
(b) the right holder shall
execute an indemnity bond with the Commissioner of Customs
indemnifying the Customs authorities against all liabilities and
expenses on account of suspension of the release of allegedly
infringing goods.
6. 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.
7. Suspension of clearance of imported
goods.-
(1)(a) Where the Deputy Commissioner of Customs or
Assistant Commissioner of Customs, as the case may be, based on
the notice given by the right holder has a reason to believe that
the imported goods are suspected to be goods infringing
intellectual property rights, he shall suspend the clearance of
the goods.
(b)The Deputy Commissioner of Customs or
Assistant Commissioner of Customs , as the case may be,
may, on his own initiative, suspend the clearance of goods , in
respect of which he has prima-facie evidence or
reasonable grounds to believe that the imported goods are goods
infringing intellectual property rights.
(2) The Deputy
Commissioner of Customs or Assistant Commissioner of
Customs , as the case may be, shall immediately inform the
importer and the right holder or their respective authorised
representatives through a letter issued by speed post or
through electronic mode of the suspension of clearance of
the goods and shall state the reasons for such suspension.
(3) Where
clearance of the goods suspected to be
infringing intellectual property has been suspended
and the right holder or his authorised representative
does not join the proceedings within a period of ten
working days from the date of suspension of clearance leading to
a decision on the merits of the case, the goods shall be
released provided that all other conditions of import of
such goods under the Customs Act, 1962, have been complied
with:
Provided that the above time-limit of ten working days may
be extended by another ten days in appropriate cases by the
Commissioner or an officer authorized by him in this behalf.
(4) Where
the Deputy Commissioner of Customs or Assistant
Commissioner of Customs , as the case may be, has suspended
clearance of goods on his own initiative and right holder
does not give notice under rule 3 of the Rules or does not
fulfill the obligation under Rule 5, within five days from
the date of suspension of clearance, the goods shall
be released provided that all other conditions of
import of such goods under the Customs Act, 1962, have been
complied with.
(5) Where the
clearance of goods has been suspended, customs may, where it acts
on its own initiative, seek from the right holder any information
or assistance, including technical expertise and facilities for
the purpose of determining whether the suspect goods are
counterfeit or pirated or otherwise infringe an intellectual
property right.
(6) Where
the Deputy Commissioner of Customs or Assistant
Commissioner of Customs, as the case may be, has suspended
clearance of goods on his own initiative and right holder has
given notice under rule 3 of the Rules and fulfilled the
obligations under Rule 5, but , the right holder or his
authorised representative does not join the proceedings within a
period of ten working days from the date of
suspension of clearance leading to a decision on the merits
of the case, the goods shall be released provided that all other
conditions of their import under the Customs Act,
1962, have been complied with:
Provided that the above time- limit of ten working
days may be extended by another ten working days in appropriate
cases by the Commissioner or an officer authorized by him in this
behalf.
(7) In the case of perishable goods
suspected of infringing intellectual property rights, the
period of suspension of release shall be three working days
which may be extended by another four days subject to
the satisfaction of the Commissioner or the officer
authorized by him in this behalf that such extension shall
not affect the goods.
(8)
Notwithstanding anything contained in these Rules, in
the case of suspension of clearance of perishable
goods on the basis of notice of the right holder or his
authorized representative, the right holder or his authorized
representative shall join the proceedings as required
under these Rules within three working days or the extended
period as provided in sub-rule (7) and in case of
suspension of clearance of perishable good by the
Deputy Commissioner of Customs or Assistant Commissioner of
Customs, as the case may be, on his own initiative, the
right holder shall give notice, execute a
bond and join the proceedings as required under
these Rules within three working days or the extended period
as provided in sub-rule (7) , as the case may be,
failing which the goods shall be released.
(9) If
within ten working days or the extended period
under sub-rule (6), as the case may be, and within three
working days or the extended period as provided in
sub-rule (7) of this rule in the case of perishable
goods, the right-holder or his authorized representative joins
the proceedings, the Deputy Commissioner of Customs or
Assistant Commissioner of Customs , as the case may be,
having reasons to believe that the goods are goods infringing
intellectual property rights and liable to confiscation
under section 111 (d) of the Customs Act, may seize the same
under section 110 of the Customs Act.
8. Examination of goods by right holder.- The
Commissioner or the officer duly authorized in this behalf shall
allow a right holder and the importer or their duly
authorized representatives to examine the goods, the clearance of
which has been suspended, and may provide representative samples
for examination, testing and analysis to assist in determining
whether the goods are pirated, counterfeit or otherwise infringe
an intellectual property right, without prejudice to the
protection of confidential information.
9. Supply of information to the right holder. -
At the request of the right holder , the Deputy
Commissioner of Customs or Assistant Commissioner of
Customs , as the case may be, shall inform the name and
address of the importer and without prejudice to the protection
of confidential information the Deputy Commissioner of
Customs or Assistant Commissioner of Customs , as the case
may be, may also provide additional relevant information
relating to the consignment which has been suspended from
clearance.
10. Supply of information to the importer. - At
the request of the importer or his duly authorized
representative, Deputy Commissioner of Customs or Assistant
Commissioner of Customs , as the case may be, shall inform
the name and address of the right holder and without prejudice to
the protection of confidential information the Deputy
Commissioner of Customs or Assistant Commissioner of
Customs , as the case may be, may also provide additional
relevant information relating to the consignment which has
been suspended from clearance .
11. 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:
Provided that if the right holder or his authorized
representative does not oppose or react to the mode of disposal
as proposed by the Deputy Commissioner of Customs or
Assistant Commissioner of Customs , as the case may be,
within twenty working days after having been informed, or within
such extended period as may have been granted by the Commissioner
at the request of the right holder, not exceeding another twenty
working days, he shall be deemed to have concurred with the mode
of disposal as proposed by the Deputy Commissioner of
Customs or Assistant Commissioner of Customs , as the case
may be:
Provided further that the costs toward destruction,
demurrage and detention charges incurred till the time of
destruction or disposal, as the case may be, shall be borne by
the right holder.
(2) There shall not be
allowed the re-exportation of the goods infringing intellectual
property rights in an unaltered state.
(3) The Deputy Commissioner of
Customs or Assistant Commissioner of Customs , as the case
may be, may on his own, or at the request of the
right holder, retain samples of goods infringing
intellectual property rights prior to their destruction or
disposal and provide the same to the right holder or importer if
such samples are needed as evidence in pending or future
litigations.
12. Exclusion of baggage and
De-minimis Imports.- Goods of a non-commercial nature
contained in personal baggage or sent in small consignments
intended for personal use of the importer are not subject to the
above Rules.
13. Protection of action taken under the Rules.-
Customs officers when acting in good faith and having followed
the procedures set out in these Rules shall not be liable for:
(a)
any failure to detect goods infringing intellectual property
rights,
(b) the inadvertent
release of such goods, and
(c) any other
action in respect of such goods.
ANNEXURE
( see sub-rule(2) of rule 3)
Format for notice in respect of goods infringing
intellectual property rights under Intellectual Property
Rights (Imported Goods) Enforcement Rules , 2007
1
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Name of the Applicant:
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2
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Contact Details of the applicant:
(A) Office address:
(B) Residence address
(C) E-mail address
(D) IEC No
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3
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Applicant's Telephone numbers( including mobile number)
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4
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Name and contact details of
authorized representative of the right holder. (
please attach authorization from the right holder)
|
5
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Proof of the existence and ownership of a
valid intellectual property right by the right holder
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6
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A statement of the grounds for the notice
of suspension of release of the goods allegedly
infringing intellectual property rights
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7
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In the case of a specific consignment of
goods allegedly infringing intellectual property rights,
details of the consignment and a statement of the
ground for the notice including prima facie evidence of
infringement
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8
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Detailed description of the goods with Customs
Tariff Heading in respect of which an intellectual
property right applies, together with a sample, model
or photograph of a genuine product
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9.
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Name of customs airport/ customs port/land
customs station to be covered
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I/We declare that the particulars furnished
above are true to the best of my/our knowledge and
the documents enclosed herewith are genuine.
Signature of the right holder or
his authorized representative Office Seal
Place:
Date:
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