Chapter 38. MEASURES APPLIED BY THE CUSTOMS AUTHORITIES WITH REGARD TO SPECIFIC GOODS
Article 393. Grounds for Suspending Goods Release
1. This Chapter stipulates that based on a statement made by the holder of exclusive rights (intellectual property) to the products protected by copyright or shared right thereto, the rights to the brand names, trademarks, as well as the holder of a franchise to use the goods place of origin (hereinafter, rights-holder), the customs authorities will undertake requisite measures for suspending the release of such goods. The measures stipulated herein shall be undertaken in the process of conveyance of said goods across the customs border or performance of other actions with the goods in customs custody
2. The measure undertaken by the customs authorities pursuant to the provisions of this Chapter shall not impede other measures the rights holder may resort to for ensuring protection of his (or her) rights in accordance with law of the Russian Federation.
Article 394. Rights-Holder’s Statement and Its Consideration Procedure
1. The rights-holder, who has sufficient grounds to deduce a possibility of an infringement upon his (or her) rights, as stipulated by law of the Russian Federation on protection of intellectual property due to conveyance across the border of the goods, which the rights-holder deems counterfactual, or performance of other actions with said goods under customs control, has the right to apply to the Federal Customs Authority with a request to take measures for suspending the release of such goods. Such a statement may be made on the rights-holder’s behalf or his (or her) representative.
2. The statement containing a request to take measures for suspending release of goods should contain the following details:
- information on the rights-holder, or on his (or her) representative if the statement is made by the rights-holder’s representative;
- information on the intellectual property object;
- information on the goods that the rights-holder deems counterfactual which should contain sufficient details for enabling the customs authorities to identify such goods;
- information on the time terms throughout which the customs authorities are requested to take measures pursuant to this Chapter.
The statement containing a request to the customs authorities to take measures for suspending a release of goods should be supplemented by the documents confirming the person’s rights to said object of intellectual property (certificates, agreements [including a licence agreement] with regard to the transference of the person’s exclusive rights, as well as any other documents which the rights-holder may opt to present for authenticating his [or her] rights to said intellectual property objects); in case such a statement is made by the rights-holder’s representative, it should be supplemented by a formal power of attorney issued by the rights-holder and authorising said representative to act on the rights-holder’s behalf.
The rights-holder (or his /or her) representative) may also attach to the statement the goods specimens proving the fact of infringement upon his (or her) rights.
3. The statement submission order and the requirements to the information contained therein, depending on the category of intellectual property in question, are determined by the Federal Customs Authority.
4. The statement should also contain the rights-holder’s written obligation to compensate any damage to the property rights that may be inflicted on the goods declarant, owner, recipient or the person specified in Article 16 of this Customs Code due to the suspension of the goods release.
5. The Federal Customs Authority considers such applications within one month from the date of their submission and passes resolutions with regard to the undertaking the measures stipulated by this Chapter or refusing to undertake such measures.
With a view to verifying the authenticity of the information provided by the rights-holder or his (or her) representative, the Federal Customs Authority has the right to request reference information and documents from the third parties as well as from the state bodies confirming the submitted information. Those persons shall be obliged to furnish the requested documents within ten days from the day they receive such a request from said customs office.
Note: the customs office has the right to extend the period of consideration of the application, but for not more than two months from the date of its acceptance.
A resolution to deny the rights-holder the measures stipulated herein will be passed in case the rights-holder (or his/or her representative) has presented to the customs authorities fictitious information or failed to observe the requirements stipulated by Item 2 of Article 395 of this Customs Code .
The rights-holder (or his/or her representative) are notified about such resolution in writing within three days from the date of its passage.
6. In the event of any changes of the information details contained in the statement or in the documents attached thereto, the rights-holder (or his/or her representative) shall be obliged to advise the Federal Customs Authority in that regard without delay.
Article 395. Customs Register of Intellectual Property Objects
1. The intellectual property objects, in whose regard the Federal Customs Authority resolves to take measures stipulated by this Chapter, are entered in the Customs Register of Intellectual Property Objects (hereinafter, the Register). Entry of intellectual property objects into the Register is free of charge.
This Register is kept by the Federal Customs Authority in accordance with order determined by this said Authority.
2. An intellectual property object will be entered into the Register provided its rights-holder guarantees the fulfilment of the other obligations pursuant to Item 4 of Article 394 of this Customs Code by the methods stipulated by the Civil Code of the Russian Federation. The intellectual rights-holder has the right to substitute the security ensuring the fulfilment of the above obligations by submitting a risk-insurance agreement covering the person’s liability for any damage caused to the persons specified in Item 4 of Article 394 of this Customs Code. The overall security sum of said obligation or the insurance premium should amount to at least 500,000 roubles.
3. The intellectual property object shall be excluded from the Register in the following instances:
- upon an express wish to that effect by the rights-holder (or his / or her representative);
- in case the rights-holder has failed to fulfil the terms and conditions stipulated by Item 2 herein;
- upon the expiry of the term of legal protection of the intellectual property object;
- in case the rights-holder has not applied to the office authorised by law of the Russian Federation with a request to secure protection of his (or her) rights within the period when the goods reseals was suspended (Article 397).
4. The Federal Customs Authority shall publish the list of intellectual property objects included in the Register in its official releases.
Article 396. Terms of Application of Measures by the Customs Authorities in case of Suspension of Goods Release
The time terms within which the customs authorities are obliged to undertake measures predicated on suspension of the goods release shall be determined based on an application in that regard made by the rights-holder (his / or her reprehensive) for not more than five years from the date of entry of said intellectual property object into the Register. This period may be extended on the basis of the rights-holder application (or his / or her representative) provided all the terms and conditions stipulated by Article 394 and Item 2 of Article 395 of this Customs Code have been observed.
The time limits, within which the customs authorities are obliged to take measures associated with suspension of goods release, may not exceed the time terms stipulated for legal protection of intellectual property objects.
Article 397. Suspension of Goods Release
1. In case the customs control procedure exercised by the customs authorities has revealed the goods which the rights-holder (or his / or her representative) claims to be as counterfactual, the release of such goods shall be suspended for the period of ten working days. Upon a motivated request made by the rights-holder (or his / or her representative), said suspension period may be extended for maximum ten additional working days provided said person has made a formal application to the respective authority stipulated by the Russian legislation with a request to protect the rights-holder rights.
A resolution with regard to the suspension of goods release and extension of the suspension period is passed in writing by the chief of the customs office concerned or his n(or her) deputy.
2. The customs office shall be obliged to notify both the declarant and the rights-holder (his / or her representative) about the imposed suspension on goods release not later than on the day following the date of enactment of said suspension specifying the reasons and terms of said suspension. In addition, the declarant is informed of the name (the surname, the first name and the patronymic name) and the address details of the rights-holder (his / or her representative). The rights-holder (or his /or her representative) is informed of the name (the surname, the first name and the patronymic name) and address details of the declarant.
3. In accordance with the Civil Code of the Russian Federation, the rights-holder shall bear responsibility for any property damage inflicted on the goods’ declarant, owner, recipient, or the persons specified in Article 16 of this Customs Code, as a result of suspension of the goods release procedures pursuant to this Chapter unless, based on the order stipulated by law of the Russian Federation, said goods (including their packaging and labels) have been found as counterfactual.
Article 398. Submission of Information. Goods Samples and Specimens
1. Upon a written permission issues by the customs office in charge, the rights-holder and the declarant (their representatives) have the right to take samples and specimens of the goods under customs control whose release has been suspended, conduct the research thereof, as well as inspect, take photographs, or otherwise identify said goods.
2. Upon a request made by the goods rights-holder (his / or her representative), the customs office may furnish additional information which may be required by the rights-holder for proving his (or her) claim of his (or her) rights violation except the instances stipulated by federal law.
3. The information obtained by the rights-holder (his / or her representative) or a declarant pursuant to the provisions of this Article shall be regarded as confidential and should not be revealed or transferred to any third parties, including the state bodies, except in the instances stipulated by federal law.
Article 399. Cancellation of Goods Release Resolution
1. In case the authorities duly empowered in accordance with the Russian legislation have not enacted the goods withdrawal, sequester or confiscation prior to the expiry of the term of suspension of said goods release, the resolution suspending the release of said goods shall be revoked on the day following the date of expiry the term of suspension of the goods release.
2. The resolution suspending release of goods shall be revoked prior to the expiry the term of suspension endorsed by customs authorities for the goods release in the following instances:
[1] the right-holder (his / or her representative) has applied to the customs office with a request to rescind the resolution suspending the release of goods;
[2] the intellectual property object has been excluded from the Register.
3. The resolution suspending release of goods shall be revoked on the day when the customs authorities become aware of the grounds stipulated by Item 2 herein.
4. Cancellation of the resolution suspending release of goods shall be enacted in writing by the chief of the customs office who passed said resolution or by the person substituting him (or her). Following the cancellation of said resolution, the goods release shall be conducted in accordance with the provisions stipulated by Chapter 16 of this Customs Code
Article 400. Goods Exempted from Release Suspension Measures Applied by the Customs Authorities
The customs authorities shall not apply the measures stipulated by the resolution suspending release of goods pursuant to the provisions of this Article to the goods containing intellectual property objects conveyed across the customs border by natural persons or posted by international mail in insignificant quantities provided such goods are intended for personal, family, household or other use unrelated to entrepreneurial activities.
|
