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Intellectual Property Rights

Customs - CBEC s Customs Manual 2015 - 21 - Chapter 21 1. Introduction: 1.1 India is a signatory to the WTO Treaty on Trade Related Aspects of (TRIPS), which was brought into force on 1st January,1995. Articles 51 to 60 of TRIPS [Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization] relate to border measures (i.e. measures required to be taken for providing protection against infringement of IPRs at the border). 2. Legal provisions: 2.1 Copyright Act, 1957, the Trade Mar .....

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on 11(2) of the said Act details the purpose for which such a notification may be issued by the Central Government which, inter-alia, covers the following purpose: (i) Protection of patents, trademarks and copyrights. [Section 11(2)(n)]; and (ii) Prevention of the contravention of any law for the time being in force [Section 11(2)(u)]. 2.3 Notification No.51/2010-Cus.(NT), dated 30-6-2010 prohibits import of goods infringing specified provisions of Trademarks Act, Copyrights Act, Designs Act, Ge .....

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not relate to all infringements under the parent IPR Acts but only to those imports that infringe the specific provisions of various parent Acts governing IPR, mentioned in the notification No.51/2010-Customs (N.T.). To illustrate, in case of the Trade Marks Act, 1999, prohibitions against infringement of trade marks on import of goods intended for sale or use in India, that attract the provisions IPR (Imported Goods) Enforcement Rules, 2007 would apply to: (i) Imported goods having applied the .....

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the issue of permitting import of original/genuine products (not counterfeit or pirated) which are sold/ acquired legally abroad and imported into the country, by persons other than the intellectual property right holder without permission/ authorisation of the IPR holder, known in the trade as parallel imports has been clarified by the Department of Industrial Policy and Promotion (DIP&P), Ministry of Commerce & Industries, which is nodal authority for all matters relating to (i) Trade .....

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where the goods bearing a registered Trade Mark are lawfully acquired, further sale or other dealing in such goods by purchaser or by a person claiming to represent him is not considered an infringement by reason only of the goods having been put on the market under the registered Trade Mark by the proprietor or with his consent. However, such goods should not have been materially altered / impaired after being in the market. (iii) In so far as designs are concerned, it is clarified that paralle .....

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8-5-2012] 2.6 The (Imported Goods) Enforcement Rules, 2007 provide a procedure to be followed by the right holders and Customs officers to prohibit importation of goods infringing and the action to be taken, by the right holders and Customs Officers, after suspension of release of the infringing goods. These Rules provide for, inter alia: (i) Notice to be given by a right holder in writing to the Commissioner of Customs or any Customs Officer authorised by Commissioner requesting for suspension .....

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ng Customs; (viii) Suo-moto action by Customs; (ix) Disposal of the confiscated goods; and (x) Goods of non-commercial nature contained in personal baggage or sent in small consignments meant for personal use would not attract prohibition. 3. Conditions for registration: 3.1 The grant of registration shall be subject to following conditions, namely: (i) The right holder or his authorised representative shall execute a bond with the Commissioner of Customs for such amount with such surety and sec .....

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spension of the release of allegedly infringing goods. (iii) At the time of registration but prior to importation, it may be difficult to fix the bond amount corresponding to the value of suspected infringing goods not yet imported. Further, this would lock in right holders money in the form of security. Therefore, the right holders may furnish a General Bond without security [Para 3.1 (i)]. The right holder shall also undertake to execute Consignment Specific Bond with the jurisdictional Commis .....

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. 3.3 An on-line, system driven, centralized bond management module has been implemented as part of the existing Automated Recordation and Targeting System (ARTS). The main objective of this system is to provide for a single centralized bond and surety/security account that can be used at all ports in India, so that the IPR holders do not have to rush to different customs formations to execute consignment specific bonds and sureties/securities upon receipt of information about an interdiction of .....

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