Article by Vijay Pal Dalmia, Advocate, Supreme
Court of India and Delhi High Court, Partner & Head of
Intellectual Property Laws Division, Vaish Associates Advocates,
Border Control Measures
Enforcement under the (Indian) Customs Act, 19621
The Government of India under Section 11 of the (Indian) Customs
Act, 1962, is empowered to prohibit importation and exportation of
goods of specified description, if it deems necessary to do so. The
provision, inter alia, empowers the government to prohibit
the import or export of goods for 'the protection of patents,
trademarks and copyrights. The goods imported in contravention of
the provisions of the Customs Act or any other laws for the time
being in force are liable to be confiscated. In this regard, a
customs officer is empowered to inspect any premises, conveyance,
x-ray any person and effect search and seize in case where they
have reasons to believe that the goods are of contraband nature.
They can also investigate or interrogate any person and arrest
Intellectual Property Rights (Imported Goods) Enforcement
India has notified the Intellectual Property Rights (Imported
Goods) Enforcement Rules, 2007. The rules comply with border
measures as required by the TRIPS Agreement empowering the Customs
Officers to enforce IPR over the imported products. Actions under
Customs Act are independent to the remedies provided under various
statues on Intellectual Property. As per Rule 2(b) of the
Intellectual Property Rights (Imported Goods) Enforcement Rules,
2007, Intellectual Property includes patents, designs, and
geographical indications together with trademarks and copyrights.
Under the above Rules, a notice by way of an application has to be
filed along with supporting documents, including:
Proof of ownership of the Intellectual Property;
Grounds for the suspension of release of the goods allegedly
Details of consignment and prima facie evidence of
Description of goods with sample, model or photograph of the
genuine product; and
Name of customs airport/ customs port/land customs port/ land
Upon receipt of the Application, in the prescribed format, the
Custom Authorities may register the Complaint and enforce Border
Control measure for the protection of the Intellectual Property
Rights. It is important to note that this right is not unfettered.
Certain provisions have been also made and an elaborate procedure
has been laid down for the release of the seized goods upon an
application of the importer of the goods.
The content of this article is intended to provide a general
guide to the subject matter. Specialist professional advice should
be sought about your specific circumstances. The views expressed in
this article are solely of the authors of this article.
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