Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 - CBEC instructions
Recently, The Customs department in India has been entrusted with the job of enforcing IPR. Is the Indian Customs ready for this? The Board Circular states, It may be appreciated that systematic enforcement of IPRs is new to Customs. Board has now issued detailed instructions on how to go about it.
The Rules provide for
1. the filing of a notice by the right holder;
2. registration of said notice by the Customs;
3. a time limit for right holders to join proceedings;
4. a single point for registration of the notice filed by the right holder;
5. adequate protection to the rightful importer;
6. adequate protection to the Customs for bonafide act;
7. suo-moto action by the Customs in specified circumstances;
8. disposal of the confiscated goods.
9. no action against goods of non commercial nature contained in personal baggage or sent in small consignments intended for personal use of the importer.
The 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 get their notice registered.
For every separate right, the right holder shall be required to submit a separate notice (application). After completing the formalities on-line, the application can be "submitted" on the website. A Unique Temporary Registration Number (UTRN) will be generated by the System. The System would also prompt the applicant to take a print- out of the application. This printed application form, along with the Demand Draft and physical copies of Bond and indemnity Bond (as prescribed under Rule 5 of the said Rules), would be required to be submitted to the Commissioner of Customs along with samples, models or photographs.
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.
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 appreciated that systematic enforcement of IPRs is new to Customs. Further, the nature of implementation of IPR regime is different in EDI and 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.
For smooth implementation of the IPR regime, it is desirable that an IPR Cell may be constituted in each Custom House. The IPR Cell may be vested with the responsibility of verifying the applications, completing web-enabled 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 calibre may only be posted in the IPR Cells.
Circular No , Dated: October 29, 2007