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TMI BlogDisclaimer:- This Draft Circular has been put up only to elicit public response. No final decision has been taken by Government/ Board. Government/ Board will proceed further in the matter only after due examination of the responses receivedX X X X Extracts X X X X X X X X Extracts X X X X ..... Intelligence/ Central Excise Intelligence/Systems and Data Management/ Audit/ Export Promotion The Chief Departmental Representative (CESTAT), Delhi Sir, Subject: Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 - instructions for implementation -reg. Section 11 of the Customs Act,1962 provides that the Central Government, may, by issuance of notification in the official Gazette prohibit either absolutely or subject to such conditions as may be specified import or export of goods for the purposes specified in sub-section (2) of section 11 of the Customs Act, 1962. The Central Government may restrict or prohibit import and export of goods infringing trademarks, patents and copyrights under clause (n) of subsection (2) of section 11 of the Customs Act, 1962. Similarly, the Central Government may restrict import and export of goods for the purposes of prevention of the contravention of any law for the time being in force, under clause (u) of subsection (2) of section 11 of the Customs Act, 1962. 2. Prior to 8-5-2007, notification no. 1/64-Cus dated 18-1-64 prohibited import of goods infringing trademarks and designs under the Trade and Merchan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) the filing of a notice by the right holder; (ii) registration of said notice by the Customs; (iii) Time limit for right holders to join proceedings; (iv) single point for registration of the notice filed by the right holder; (v) adequate protection to the rightful importer; (vi) adequate protection to the Customs for bonafide act; (vii) suo-moto action by the Customs in specified circumstances; (viii) disposal of the confiscated goods. (ix) no action against goods of non commercial nature contained in personal baggage or sent in small consignments intended for personal use of the importer. 5. The right holders would be required to give notice for registration in the manner detailed in para 10 of this circular , to any of the Commissioners of Customs at the port where counterfeit goods are likely to be imported infringing the IPR in respect of any trademark, copyright, patent, design or geographical indication. The grant of registration by the Customs is subject to the execution of a bond along with surety and security by the right holder or his authorized representative in terms of Rule 5(a), unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be decided by the respective Commissioners in whose jurisdiction the bond is executed. The right holder may furnish security in the form of bank guarantee or fixed deposit. However, if the right holder fails to execute the consignment specific bond and furnish security within three days of intimation of the suspension of release of goods, the same must be released forthwith. 8 . In case it is found at any stage that the right holder has furnished any wrong or false information, the registration accorded under Rule 4 of the said Rules may be cancelled forthwith. 9 . If , after the registration is granted , the right holder wants any modification on account of any amendment in registration granted to them by the respective registry of the departments enforcing the parent IPR law or on account of any other reason, the right holder shall be required to seek fresh registration in place of the old registration and would be required to undergo all the processes of registration again, like making fresh application, payment of fees, execution of bond etc. 10. The said Rules provide that notice would be given in the format prescribed in the Annexure to the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect shall be sent, within 24 hours, to the Risk Management Division (RMD), Mumbai and all other Custom Houses, who can access the details through the user names and pass-words given to them. On the contrary, if the Commissioner or his authorized officer of Customs has to reject the application leading to denial of protection, principles of natural justice may be followed. It may be noted that the temporary registration number granted by the system does not accord any protection to the right holders. The temporary registration is only an acknowledgment of the application filed by the right holders and can not be taken as actionable. The registration will be granted only after theCommissioner of Customs has completed verification of the documents and facts and after the right holder has furnished the General Bond and Indemnity Bond. The protection of rights will be accorded only on grant of permanent registration number to the right holders. 12. To begin with, while the web-enabled electronic registration system is being put in place, the field Commissioners are advised to accept the applications in the format as prescribed in the Annexure to the said Rules. However, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me is different in EDI as well as non-EDI locations. Besides, RMS has not been implemented in all EDI locations. It may be noted that while national-level targeting of consignments can be handled by RMD, Mumbai on the basis of the information furnished by the applicants, and, under normal circumstances, consignments suspended by the national targets will be sent with appropriate instructions to the officers to handle the suspect consignments, any intelligence driven interdictions on the own initiative of officers cannot be discouraged. However, such ex-officio intervention by officers needs to be regulated and exercised with utmost caution, given the fact that the liability for wrong detention in an ex-officio case would rest entirely with the department. In EDI locations where RMS is not implemented, all the consignments are necessarily assessed before clearance. Therefore, officers in Groups and Sheds at such locations may be sensitized about the IPR registration database so that they can keep a watch on suspect imports. Apropos, the non-EDI locations, where officers do not have access to the "icegate", copies of the applications along with the accompanying documents shall be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abled registration formalities and making correspondence with the Risk Management Division and other Customs formations. Further, any import involving suspected infringement of IPRs may have to be invariably handled by the IPR Cell. Any instance of suo-moto interdiction of the import consignments by the Customs, involving possible infringements, should also be referred to such IPR Cell. The job is time - bound and sensitive and hence it is advised that officers of proven caliber may only be posted in the IPR Cells. 22. Wide publicity of this Circular may be given by way of issuance of public notice and standing order. 23. Difficulty, if any, faced in the implementation of this circular, may be immediately brought to the notice of the Board. 24. Please acknowledge receipt. 25. Hindi version follows. Yours faithfully (P. S. Pruthi) Commissioner (Customs EP) Copy for information to : 1. PS to Chairman and Members of the CBEC 2. To all sections of the Board Office 3. To all Directorate under CBEC 4. Joint Secretary (Administration),CBEC ANNEXURE-A BOND EXECUTED IN PURSUANCE OF REGISTRATION OF INTELLECTUAL PROPERTY RIGHTS WI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt consignments failing which the consignment shall be released . (ii) The Right Holder shall keep the Customs abreast of validity of registration obtained by him under the IPR laws namely The Copyright Act, 1957; The Trade Marks Act, 1999; The Patents Act, 1970; The Designs Act, 2000 and The Geographical Indications of Goods (Registration and Protection) Act, 1999; expiry of the term of registration and renewal thereof, if any; cancellation; grant of compulsory licence in accordance with the law etc (iii) The Right holder, having recognized limitations of international trade and understood the general functioning of Customs, shall share the trends and information with Customs on an on-going basis, about suspected imports of infringing goods violating the IPR laws, as may be required to interdict consignments and to suspend the clearance thereof . (iv) The Right Holder undertakes to protect the importer, consignee and owner of the goods as well as the competent authoritiesagainst all liabilities that are incidental and ancillary to the act of suspension of clearance of allegedly infringing goods, in case it is established that the suspension is vexatious. (v) The Righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ……… (Rupees ………………………………. only) to be paid to the President for which payment well and truly to be made, I / we bind myself / ourselves, my / our successors / heirs, executors, administrators and legal representatives firmly by these presents. Sealed with my / our seal(s) this ……………………………. day of …………………….. 20….. . WHEREAS The Commissioner of Customs or his authorized Officer at ………… (hereinafter called the "Proper Officer") has agreed to register the intellectual property right (hereinafter abbreviated as "IPR") held by me/us and to suspend clearance of goods suspected to be infringing the IPR held by me/us, depending on the information furnished by me/us and on the basis of the declarations made by the Importers in the course of importation, the Right Holder hereby agrees to furnish such bond, security and surety, hereinafter specified , in terms of Rule 5 (a) of the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007. The Right Holder has deposited with the Proper Officer at ……….., the securities as mentioned in the Schedule hereunder written of the face value of Rs …….. (Rupees ……………………… only) endorsed in favour of …………. as security for the due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount deposited, along with consignments, if any ] IN THE WITNESS WHEREOF the Right Holder (and the Surety)* has herein set and subscribed its hands and seals the day, month and year first above written. SIGNED AND DELIVERED by the Right Holder at ………….. In the Presence of :- XXXXXXXXXXXXXX 1………………………. . 2………………………. *SIGNED AND DELIVERED by the Surety at ………….. …. In the presence of :- 1……………………… 2………………………. xxxxxxxxxxxxxxx Accepted For and on behalf of the President of India (Signature of the Proper Officer with Official Stamp and Seal) In the presence of :- 1……………………….. 2………………………… Note: * Mandatory in case any surety has been prescribed. Strike off, if irrelevant. ANNEXURE-C INDEMNITY BOND EXECUTED IN PURSUANCE OF REGISTRATION OF INTELLECTUAL PROPERTY RIGHTS WITH INDIAN CUSTOMS [See Rule 5(b) of Intellectual Property Rights (Imported Goods) Enforcement Rules,2007] [To be Executed by the Right holder(s)] 1. Whereas, ______(Name Address) ________________ is the right holder/owner of the Copyright/Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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