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 subsection (2) of section 11 of the said Act, the
Central Government hereby makes the following rules, namely:- (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. (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. (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 authorized
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. (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. 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, 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. (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. 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. 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. 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 . (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. 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. 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.
Name
of the Applicant: 2.
Contact
Details of the applicant: (A)
Office
address: (B)
Residence
address (C)
E-mail
address (D)
IEC
No 3.
Applicant's
Telephone numbers (including mobile number) 4.
Name
and contact details of authorized representative of the right holder (please
attach authorization from the right holder). 5.
Proof
of the existence and ownership of a valid intellectual property right by the
right holder 6.
A
statement of the grounds for the notice of suspension of release of the goods
allegedly infringing intellectual property rights 7.
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 8.
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 9.
Name
of customs airport/ customs port/land customs station to be covered 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;
Intellectual
Property Rights (Imported Goods) Enforcement Rules, 2007