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TMI BlogIntellectual Property Rights (Imported Goods) Enforcement Rules, 2007 - instructions for implementation -regX X X X Extracts X X X X X X X X Extracts X X X X ..... 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 purpose 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 Merchandise Marks Act 1958 and Indian Patents and Designs Act, 1911 respectively. 3 Representations were received from the trade for issuance of a notification to prohibit import of goods infringing other IPR laws as well. Further, considering our obligation to implement border measures as envisaged in Articles 51 to 60 of the WTO Treaty on Trade Related Aspects of Intellectual Property Rights (TRIPS), a need was felt to define the role of Customs precisely in combating IPR infringements at the borders. Accordingly, notification No 49/2007-Customs dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5. The right holders would be required to give a notice for registration in the manner detailed in para 10 of this circular , to any one of the Commissioners of Customs at the ports 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 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), undertaking to protect the importer, consignee, 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 the disposal of the infringing goods. The registration is also subject to execution of an indemnity bond by the right holder in terms of Rule 5(b), indemnifying the Customs authorities against all liabilities and expenses on account of suspension of the release of allegedly infringing goods. 6. At the time of registration but prior to importation, it may be difficult to fix the bond amount corresponding to the value of suspected infri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or on account of any other reason, the right holder shall be required to seek fresh registration in place of the old registration and shall 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 by the right holders in the format prescribed in the Annexure to the Rules. However, as a trade facilitation measure enabling right holders to file the notice electronically, a user friendly web- enabled application form is being devised. The right holders would be required to log into http://www.icegate.gov.in. Thereafter, they can choose the Custom House where they wish to record their notice, from among the ports of importation of the suspected infringing goods. Option has been provided to separately register different IPR's viz., Copyrights, Trade Marks, Patents, Designs and Geographical Indications. As regards payment of registration fees, option has been given to the applicants either to use on-line credit card mode of payment or the conventional mode of Demand Drafts, drawn in favour of Commissioner of Customs of the Custom House where they wish to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermanent 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 order to have a centralized registration , it will be mandatory for all applicants to file applications on-line, once the system is geared up for accepting electronic on-line registration. The trade will be intimated the date of coming into force of the electronic regime. 13. It may be noted that though the notice/application for registration may be submitted to the Commissioner of Customs at any of the ports where counterfeit goods are likely to be imported infringing the IPR in respect of any trademark, copyright, patent, design or geographical indication and all formalities associated with the registration are undertaken by that Commissioner, protection will be accorded at all the ports as specified in the notice. Therefore, there is no apparent need for the right holders to make several notices/applications with all the Commissioners of Customs covered under the notice. It may be emphasized that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase 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 sent without delay by the Commissioners who are handling the registration of Rights to such locations by e-mail or by speed post. 17. It may be noted that the terms and the phrases used in the notification and the Rules made in terms of section 11, have the meanings, with all grammatical variations and cognate expressions, assigned to them in the respective parent enactments like The Copyright Act, 1957, The Trade Marks Act, 1999, The Patents Act, 1970, The Designs Act, 2000 and The Geographical Indications Act, 1999. Thus, it may be emphasized that determination of the fact whether a particular consignment infringes the rights of the right holder would be done taking into account the provisions of the parent acts. 18. It is important to adhere to the time lines prescribed in Rule 7. The Customs and the right owners/holders seeking protection are under obligation to follow the time lines indicated in various sub-rules that cover practical situations that may arise in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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