Basis for Intellectual Property Rights Protection by Customs Agencies

Home |

Site Map

Search this site:

SECTION IX. Intellectual Property Rights Protection by Customs Agencies

CHAPTER 46 (37). Basis for Intellectual Property Rights Protection by Customs Agencies

Article 368. Basic Concepts of this Section.

In this Section the basic concepts shall be used in the following meaning:

Counterfeit goods are goods containing intellectual property (objects of copyright and related rights, industrial property rights, including trademarks, appellations of origin of goods, and other intellectual property in accordance with the legislation of the Russian Federation), if production and transfer of such goods across the customs border or other operations with goods which are under the control of customs entail the violation of the owner's rights protected in accordance with the legislation of the Russian Federation;

A rights holder is a person who owns the exclusive rights to use the intellectual property objects in accordance with the legislation of the Russian Federation;

Suspension of Release is the extension by customs agencies of the time in which a decision regarding release of goods is normally made under the selected customs procedure.

Article 369 (297). Intellectual Property Rights Protection by Customs Agencies

Customs provides protection of the owner's rights to intellectual property objects under the procedure set forth by this Code, federal laws and other provisions of the Russian Federation.

Article 370 (298). Filing an Application for Protection of Intellectual Property Objects

The rights holder or another person representing the rights holder (hereinafter referred to as the applicant), who has grounds to claim that the infringing goods have been transferred across the customs border, or that the rights of the owner of the intellectual property objects have been infringed or could be infringed during the transfer of the goods across the customs border, or by other actions with regard to the goods under customs control, has the right to file an application to take measures to protect the above-mentioned rights with the federal executive agency authorized for customs law enforcement.

The application shall contain the following information:
An appeal by the applicant for measures to be taken to protect the rights to the intellectual property objects;
information confirming the infringement of the rights to intellectual property objects;
information about the rights holder and (or) the applicant;
information on each intellectual property object subject to protection, information on the time period during which, according to the rights holder, he will require the assistance of customs agencies in protecting his rights;
description of goods containing intellectual property objects;
other information helpful to disclose counterfeit goods;
assurance that applicant will compensate damages to the declarant and other persons, as well as expenses incurred by customs agencies for the suspension of release of goods containing intellectual property objects which are assumed to be counterfeit in cases in which it is determined that the goods are not counterfeit;
information about the ownership of intellectual property rights.
Attached to the application shall be documents confirming the ownership of the intellectual property rights (certificate, licensing agreement, and other documents in accordance with the RF legislation on intellectual property) and a power of attorney, if applicable, issued to the applicant by the rights holder.

If possible, a sample of the goods containing an intellectual property object and (or) a sample of the counterfeit goods shall be submitted simultaneously with the application.

3. The federal executive agency authorized for customs law enforcement has the right to oblige the applicant to provide a guarantee pursuant to Article 35 of this Code sufficient for compensation of losses which may be incurred by other parties as a result of measures taken to protect the rights to intellectual property objects, which shall not exceed 3,000 minimum salaries as set forth by the legislation.

4. The federal executive agency authorized for customs law enforcement shall consider the application papers within one month from the date of the application and shall rule on taking measures to protect rights to the intellectual property objects or denying such measures. Given sufficient data, the federal executive agency authorized for customs law enforcement is entitled to extend the time for consideration of the application papers, but no longer than up to two months. Should the applicant fail to meet requirements of this Article, and if the federal executive agency authorized for customs law enforcement rules that customs agencies are unable to provide protection of intellectual property rights, a ruling shall be made stating that measures to protect the rights to the intellectual property object in question will not be undertaken.

The applicant shall be notified of this decision in writing.

5. If the information stated in the application or in the attached documents undergoes any change, the applicant is obliged to inform the federal executive agency authorized for customs law enforcement.

Article 371 (299, 300). Register of Intellectual Property Objects to Be Kept by the Federal Executive Agency Authorized for Customs Law Enforcement

The federal executive agency authorized for customs law enforcement shall keep the Register of Intellectual Property Objects for the purpose of exercising customs control. An intellectual property object on which the federal executive agency authorized for customs law enforcement has taken a decision to protect intellectual property rights shall be entered in the Register of Intellectual Property Objects.

An intellectual property object may be excluded from the Register at the applicant's request or by a decision issued by the federal executive agency authorized for customs law enforcement if the applicant fails to observe provisions of this Section; or if the intellectual property object could not have been entered in the Register based on the established procedure or if it has been included in the register on the basis of incomplete or inauthentic information.

The procedure of keeping the Register of Intellectual Property Objects and bringing it to the attention of customs agencies and applicants shall be determined by the federal executive agency authorized for customs law enforcement.

Article 372 (301). Rights Protection Period

The period of the protection of owner's rights by customs agencies shall be determined by the federal executive agency authorized for customs law enforcement at the time of adding the intellectual property object to the Register, taking into consideration the desired period stated by the applicant, but not more than two years from the date of inclusion of the intellectual property object in the Register.

The federal executive agency authorized for customs law enforcement shall extend the above period at the request of the applicant. The total period of intellectual rights protection cannot exceed the validity of rights to intellectual property objects.

Chapter 47. Specific Procedures of Customs Registration and Customs Control over Goods Containing Intellectual Property Objects

Article 373 (302). Transfer of Goods Containing Intellectual Property Objects across Customs Borders. Customs Registration and Customs Control over Such Goods.

Goods containing intellectual property objects shall be transferred across customs borders in accordance with this Code and the RF legislation on intellectual property.

Customs registration and customs control over goods containing intellectual property shall be performed according to procedure set by this Code with regard to the specific points provided for by this Chapter.

Article 374 (303). Suspension of Release of Goods Containing Intellectual Property Objects.

If, during customs registration and other control activities over goods containing intellectual property objects included in the Register, the customs agency detects signs indicative of counterfeit goods, these goods shall be placed in a temporary storage and the release of such goods shall be suspended.

The decision to suspend the release of goods for a period of ten working days shall be issued by the chief of the customs agency involved in the customs registration or by an authorized deputy. At the request of the applicant, the stated period may be extended for no more than twenty working days.

The customs agency informs the declarant and applicant on the reasons for suspension of the release of goods not later than the next day after the relevant decision has been taken, and submits the applicant's name and address to the declarant and the declarant's name and address to the applicant.

The federal executive agency authorized for customs law enforcement establishes the procedure for deciding on suspension of the release of goods, informing the applicant and declarant of the decision and the extended period of suspension of release.

Article 375 (304). Security for Applicant's Liabilities to Compensate for Expenses Incurred by Customs Agencies in Connection with Suspension of the Release of Goods

Customs agencies have the right to demand from the applicant, within five days of applicant's receipt of notice of suspension of release of goods, a bond sufficient to compensate the costs incurred by customs agencies in connection with the suspension of release of goods, as established by this Code.

The amount of the bond shall be determined by the chief of the customs agency who has ruled to suspend the release of goods, or by a person acting for him.

The procedure for determining the amount of the bond and compensating for expenses incurred by the customs agency due to suspension of release shall be established by the federal executive agency authorized for customs law enforcement.

Article 376 (305). Delivery of Information. Sampling.

The customs agency shall provide the applicant and declarant the information needed to determine whether the goods whose release has been suspended are in fact counterfeit.

The information received by the applicant or declarant in compliance with this Article is confidential and is not to be disclosed or transferred to third parties or state agencies except in situations stipulated by federal law.

With the permission of the customs agency, the applicant and declarant or their representatives are entitled, under customs agency supervision, to take samples of the goods and examine the goods whose release has been suspended.

Article 377 (306). Cancellation of the Decision to Suspend the Release of Goods Containing Intellectual Property Objects

The decision to suspend the release shall be cancelled if during the validity of this decision:

the applicant applies to the customs agency for cancellation of the decision on suspension of the release;
the intellectual property object is excluded from the Register of Intellectual Property Objects;
a decision by an authorized Russian agency to confiscate, arrest or seize the goods is not received;
or if the applicant does not secure his liability for compensation of expenses incurred by customs agencies in the amount and within the time stated in Article 375 of this Code.
In the above cases, goods shall be registered with customs and released according to procedure set by this Code.

2. The decision to suspend the release shall be cancelled by the chief of the customs agency who issued the decision, or by a person acting in his stead.

3. At the time of cancellation of a decision to suspend the release on the grounds provided for in Subparagraph 3 of Paragraph 1 of this Article, goods may be released if the declarant or a person authorized to handle the goods secures his liability to compensate for losses incurred by the rights holder due to the illegal use of intellectual property objects, or takes other measures to protect intellectual property rights in accordance with laws of the Russian Federation in an amount that is adequate to the stated protective measures. The amount and procedure for securing such a liability shall be established by federal laws and other legal acts of the Russian Federation.

Article 378. Additional Powers of Customs Agencies to Exert Control over Goods Containing Intellectual Property Objects

Customs agencies are authorized to suspend the release of goods containing intellectual property objects when they detect signs indicative of counterfeit goods according to the procedure stipulated by this Chapter, even without a request from the rights holder to protect his rights. In this case customs agencies are entitled to ask the rights holder to submit any information which can be used to prove that the goods are counterfeit. When suspending the release of goods in accordance with this Article, customs agencies shall immediately notify the rights holder and declarant.

The release of goods shall be suspended only for ten working days. This period can be extended for another ten days upon the rights holder's written request.

Customs agencies shall suspend the release of goods based on this Article according to the procedure set by the federal executive agency authorized for customs law enforcement.

Article 379. Intellectual Property Objects Not Subject to Measures of Intellectual Property Rights Protection by Customs Agencies

Customs agencies shall not take measures to protect intellectual property rights in goods containing intellectual property objects which are transferred across the border by natural persons or sent by international mail, if such goods are not intended for commercial purposes and are imported to or exported from Russia without payment of customs duties and taxes in accordance with Paragraph 2 of Article 209 and Paragraphs 1 and 2 of Article 223 of this Code.

Article 380. Additional Provisions for the Protection of Intellectual Property Rights by Customs Agencies

The protection of intellectual property rights by customs agencies shall not prevent the rights holder from resorting to any other measures for protection of his rights in accordance with the legislation of the Russian Federation.

Customs agencies shall not compensate damages caused to any person by suspension of the release of goods in accordance with this Section, except when, in accordance with Article 375 of this Code, customs agencies themselves initiate the suspension of release of goods that are not counterfeit, resulting in damage to the declarant or other persons. In this case, customs agencies shall compensate for losses incurred by the declarant or any other person, only if it is established that the customs agency or one of its employees is guilty of intentionally causing harm or of gross negligence.