IPR REGULATION & CUSTOMS / BORDER CONTROL IN INDIA- In relation to Cosmetics Industry

23/08/2019

Dated: 23.08.2019

Intellectual Property Right- Cosmetics Industry in India

India has a well-defined Border Control Mechanism for the protection of IPR(s) of Cosmetics Brand holders.

Intellectual property is rapidly becoming a central element in discussions of business strategy. This trend may not be surprising — the rising importance of intangible capital in industrialized economies as well as markets like India & China is apparent in many statistics. In corporations, the value of intellectual property as a share of total firm value has been increasing. The number of patent applications is growing at double-digit rates in the major patent offices. Licensing and cross-licensing are being employed with greater frequency than ever, particularly so in high-technology industries (Arora 1997). There is also strong evidence that the patent output per R&D dollar has been increasing in semiconductors (Hall and Ziedonis 2001) and possibly in other industries as well. Moreover, the realm of intellectual property protection has been enlarged greatly since the US Patent and Trademark Office, influenced by a series of important court decisions, began to issue patents on software, business methods, and life forms only to find itself in the middle of a stormy debate as to how far patent protection should reach.

  IPR REGULATION & CUSTOMS / BORDER CONTROL IN INDIA

India has a robust framework for protection of IPR. However, IPR violations in the consumer goods industry especially that segment which has high aspirational value viz. cosmetics, apparels etc., remains to be a major issue. Proactive measures would be required by brand rights holder to prevent counterfeited products of theirs swamping the INDIAN market. The difference between Border control measures and other traditional IPR violation remedies is that Border control measures allows Right Holders to pre-empt the possibility of IPR abuse. Binding guidelines has been prescribed by government of India for regulating IPR issues insofar as Customs / Border Control is concerned. Following is the prescribed customs framework for IPR issues.

Notification No 47 / 2007 – CUSTOMS (N.T) dt: 08.05.2007

This Notification notifies Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007, which allows a right holder to give notice in writing to the Commissioner of Customs at the port of import of goods infringing intellectual property rights. The procedural & conditions framework in the IPR (Imported Goods) Enforcement Rules, 2007, Pertains to: –

  • The filing of a notice by the right holder.
  • Registration of said notice by the Customs.
  • A time limit for right holders to join proceedings.
  • A single point for registration of the notice filed by the right holder.
  • Adequate protection for the rightful importer.
  • Adequate protection to the Customs for bonafide act.
  • Suo – Moto action by the Customs in specified circumstances.
  • Disposal of the confiscated goods.
  • 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 definitional framework of the IPR (Imported Goods) Enforcement Rules, 2007, are as follows:

  • “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.

  • “Intellectual property” means a copyright as defined in the Copyright Act, 1957, trademarks 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 & Protection) Act, 1999.

  • “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.

Notification No. 48 / 2007- CUSTOMS (N.T) dt: 08.05.2007

This notification amends Notification No. 1/64 dt: 18.01.1964 prohibiting import of counterfeit trademark goods.

Notification No. 50 / 2007- CUSTOMS (N.T) dt: 08.05.2007

This notification prohibits export of goods for violations of provisions of trade mark rules, 2002 read with Trade Marks Act, 1999.

Circular No. 41 / 2007- dt: 20.10.2007

This circular prescribes the procedural framework or implementation of Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007, As per this circular right (IPR) notices electronically with the help of user friendly web- based  / enabled application through the e-commerce portal of Government of India: http: //www.icegate.gov.in

Customs formations in turn have prescribed further operational guidelines for the web-enabled IPR notice filing application. Following are the details of Public Notice No. 56/2007 dated 06.12.2007 issued by Jawaharlal Nehru Custom House, Nhava Sheva. (which oversees more than 40% of India’s International trade by volume as well as value)

In the said context it would be instructive to know about the standard operating procedure prescribed for customs opticians entrused with the responsibility of administering the IPR laws & guidelines.  Standing Order No. 49/2007 dt: 06.12.2007, issued by Jawaharlal Nehru Customs House, Nhava Sheva.

Circular No. 13/2012-Customs Dated: 08th May 2012

This circular prescribes the procedural framework or implementation of Parallel Imports.  This circular further enforces and clarifies the Enforcement of Intellectual Property Rights on imported goods – Clarification on the issue of parallel imports.

FOR FURTHER ASSISTANCE on the subject PLEASE CONTACT–

M/s S.J. EXIM Services- Q-Freight Team
Contact Person: Ravi Shekhar Jha

Web: www.sjeximtech.com / www.q-freight.com

Email: intelconsul@gmail.com    /   ravi.jha@q-freight.com

Disclaimer: Please refer to official sources before effecting a decision

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