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TMI Blog2023 (7) TMI 782X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under Article 226 of the Constitution of India has prayed for the following reliefs: "a) This Hon'ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction calling for the record and proceedings relating to the issuance of the direction seizing the goods imported by the petitioner no. 1 under Bill of lading bearing BL Number EXSH2310608 filed with the office of the Commissioner of Customs, Nhava Sheva-V and after examining the legality and propriety thereof, be pleased to quash and set aside the same; b) that this Hon'ble Court be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction directing the respondents to forthwith recall the intimation or direction for distraint or seizure of the goods imported by petitioner no. 1 under Bill of lading bearing BL Number EXSH2310608 filed with the office of the Commissioner of Customs, Nhava Sheva-V; and to deliver the goods to the petitioners; c) Pending the hearing and final disposal of this petition, this Hon'ble Court be pleased to issue appropriate directions/order(s) to the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before the Civil Court, at Thane, in which an Interim Application of respondent no. 8 praying for interim reliefs of an injunction itself was rejected far back on 15 February, 2022. It is submitted that there is also a suit filed by the petitioners before this Court against respondent no. 8. It is contended that in none of the proceedings inter se between respondent no. 8 and the petitioners, any order has been passed by any Court restraining the petitioners from using the trade mark in question. It is, therefore, submitted that Customs Authorities will certainly not have any jurisdiction to take recourse to the provisions of 2007 rules and detain and/or not permit clearance of the petitioners goods. In support of such contentions, learned counsel for the petitioner has placed reliance on the Division Bench of this Court in NBU Bearings Pvt. Ltd. & Ors. vs. Union of India & Ors. 2021 (86) PTC 191 (Bom). 6. On the other hand, Mr. Mishra, learned counsel for the revenue would not dispute the legal position although he would intend to support the action of the department and oppose the reliefs being prayed for in the petition. Mr. Mishra is unable to print out as to how the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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." 10. Rule 3 provides for "Notice by the right holder". A right holder is empowered to give notice in writi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." 12. Rule 10 provides for "Supply of information to the importer, which reads thus: "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." 13. Rule 11 provides for "Disposal of infringing goods", which may not be relevant in the facts of the case. 14. From the reading of the Rules, it is clear that they are in the context of goods infringing intellectual property rights as defined in Rule 2(a), to mean 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. Thus, what is significant is that the same directl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners therein and respondent no. 6 were litigating against each other to establish their respective right, title and entitlement to the ownership of the copyright in question. Although various proceedings were pending in the Court, neither of the parties were in a position to obtain any order from the Civil Court and produce the same before the customs authorities to take benefit of the statutory provisions. The Court referring to the provisions of 2007 Rules observed that on a conjoint reading of the provisions, it was clear that unless there is finality to the suit proceedings between the parties therein which was pending before the Civil Courts or any interim order was passed by the Civil Courts, the rival contentions which was urged by the parties in the proceedings of the Writ Petition could not be gone into. It was also observed that in the absence of a Court order as contemplated under sub-section (4) of Section 53 of the Copyright Act, which was a relevant Act as pressed into service in the said proceedings, the customs authorities were not justified to withhold the consignment imported by the petitioners, on a complaint of respondent no. 6 therein, unless respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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