In the age of globalization, the importance of Intellectual Property Rights (IPR) has taken centre stage. Till now, the role of Customs was primarily collecting Customs duties and other indirect taxes. However, with the advent and the development of e-commerce the environment in which Customs operate altered dramatically. Although, civil, criminal, and administrative remedies are available to a brand owner for protecting their IPR, however, in recent times customs recordation has emerged as one of the key tools for border control measure to isolating unauthorised/ infringing goods before they enter the commercial channels of the trade reducing economic fallout.

The Role of Customs in IPR Enforcement

One of the key challenges in combating IPR violations is the cross-border movement of infringing goods. In this context, the role of customs authorities becomes crucial, as they are the first line of defence at the borders. Customs authorities have the power to inspect, detain, and seize goods that are suspected of infringing IPR, and to cooperate with the right holders and other enforcement agencies to prevent their entry into the domestic market.

India and its neighbouring countries, namely Pakistan, Sri Lanka, Bangladesh, and Nepal, have different legal and institutional frameworks for border control measures pertaining to IPR. This article gives an overview of the Border control measures pertaining to IPR in India vis-à-vis its neighbors including Pakistan, Sri Lanka, Bangladesh and Nepal.

INDIA

To prevent importation of counterfeit low-quality products into India and to safeguard the IPR rights of the brand owners, the Indian Customs introduced Intellectual Property Rights (Imported Goods) Enforcement Rules 2007 which is a comprehensive and robust system allowing the right holders to register their IPR with the customs authorities and request for suspension of clearance of infringing goods.

The process encouraged the brand owners to record their IP rights with the Indian Customs be it Trademarks, Copyright, Patents, Design or Geographical Indication through an online platform. Once recorded, the application remains in force for a period of 5 years or till the validity of the IPR, whichever is earlier. Not only that, but a single application filed by the brand owner is uploaded on all the ports across the country making it one of the most effective and widespread enforcement monitoring and detention programs. This helps customs to detain any consignment suspected to be containing goods infringing the IPR of the brand owner which has been recorded their IPR with customs.

PAKISTAN

There is widespread infringement/piracy of international brands specifically of clothing and shoes in Pakistan. These products are mainly made and manufactured in the country which are exported abroad as well as offered for sale on various online e-commerce platforms.

Pakistan does not have a proactive customs recordal procedure and an application (complaint) on prescribed format along with a bank guarantee of Rs. 500,000 or 25% of the value of the consignment needs to physically filed with the Director IPR (Enforcement), Customs by the right holder on being aware of importation of infringing goods.

As Pakistan lacks a dedicated IPR Cell or a focal point within the customs administration, the coordination and cooperation among the customs authorities, the right holders, and other enforcement agencies is weak.

BANGLADESH

IPR Enforcement (Import and Export) Rules, 2019 was introduced in Bangladesh under the aegis of section 15, 16 and 17 of the Customs Act, 1969. Under the said rules, right holder must file and register a notice to the concerned Customs House or Customs Station or Customs Port on a prescribed form. Once the application is approved, the Customs issue recordation certificates in favour of the applicant brand owner.

Post recordation there could be two scenarios, i.e. (i) customs authority can act suo-moto on the basis of suspicion and can temporarily suspend release of the goods being placed for import or export and immediately inform the brand owner for subsequent proceedings as prescribed by the Rules, or (ii) if the brand owners or right holders suspect that infringing goods are about to be imported or exported, they may file a request to the relevant customs authority to temporarily suspend the release of such goods.

NEPAL

Under the Nepal Customs Act, any trademark owner can file an application in any of the Customs Office to impound counterfeit goods. Such an application must have information on the consignment and importer.

Nepal Customs Office after impounding such consignment, will seek a decision from IP Authority and if goods are found counterfeit will be destroyed.

SRI LANKA

In Sri Lanka, Intellectual Property Rights (IPR) holders who are desirous of safeguarding their rights from being violated by spurious imports and exports could register with Customs by furnishing information and documentary evidence to establish IPR ownership. Once the IPR is registered, same will be circulated to all directorates within the Customs Department. Thereafter, Consumer Protection Unit (CPU) will notify the Right Holder if they become aware of counterfeit goods being imported or if not the owner of a registered Trademark/ Patent who has valid grounds to believe that the importation of counterfeit trademark goods is taking place can make an application to the Director General of Customs requiring him to suspend the release of such goods into free circulation and thereafter to take legal action.

Conclusion

Border control measures pertaining to IPR are essential for protecting the rights and interests of the right holders, the consumers, and the society. However, the level and quality of these measures vary significantly among India and its neighbouring countries, with India having the most advanced and comprehensive system, and Nepal having the most basic and primitive system. There is a need for greater harmonization, cooperation, and capacity building among the customs authorities and other stakeholders in the region, to enhance the effectiveness and efficiency of IPR enforcement at the borders.