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TO
BE PUBLISHED IN PART II, SECTION 3, SUB-SECTION (i) OF THE GAZETTE OF INDIA
EXTRAORDINARY.
GOVERNMENT
OF INDIA
MINISTRTY
OF FINANCE
DEPARTMENT
OF REVENUE
New Delhi,
dated the 8th May,
2007
NOTIFICATION
No. 47/2007-CUSTOMS (N.T.)
G.S.R.
331(E) -
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
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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)
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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:
[F.No305/96/2004-FTT(part-I)]
(S.P.RAO
)
Under
Secretary to the Government of India
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