Title: EFFECTIVE ENFORCEMENT AT THE BORDER
1EFFECTIVE ENFORCEMENT AT THE BORDER
- by Mohamed Khader
- SPOOR FISHER
- November 2005
2 EFFECTIVE ENFORCEMENT AT THE BORDER
Contents
- Section 15 of the Counterfeit Goods Act
- Enforcement by the South African Border Police
- Co-operation
- Training on the law and product identification
- Questions
3 EFFECTIVE ENFORCEMENT AT THE BORDER
Section 15 of the Counterfeit Goods Act
- Suitable legislation
- IP rights owner files application with the
Commissioner for the South African Revenue
Service - Request that suspected counterfeit goods are
detained - If application is accepted, suspected counterfeit
goods will be stopped by Customs and the IP
Rights owner will have the opportunity to confirm
whether or not the goods are counterfeit good
4 EFFECTIVE ENFORCEMENT AT THE BORDER
Section 15 of the Counterfeit Goods Act
- In practice, when suspected counterfeit goods are
detected by Customs, these goods are detained
in terms of Section 113A of the Customs and
Excise Act, 91 of 1964 - Customs will immediately notify the IP rights
owner or its authorised representatives (usually
its local attorneys) of the detection and
interception - Arrangements will be made for a sample of the
suspected counterfeit product will be collected
from Customs for purposes of examination - An affidavit confirming the counterfeit nature of
the offending goods must be filed with Customs
within 5 days of notification of the detention
5 EFFECTIVE ENFORCEMENT AT THE BORDER
Section 15 of the Counterfeit Goods Act
- Customs will then obtain a search and seizure
warrant in terms of the provisions of the CGA and
seize the offending goods - A notice in terms of Section 7(1)(d) of the CGA
will then be issued and the IP rights owner will
only then be furnished with details of the
importer of these goods - The IP rights owner must then ensure compliance
in terms of the provisions of Sections 7 and 9 of
the CGA
6 EFFECTIVE ENFORCEMENT AT THE BORDER
Enforcement by the Border Police
- Have proven to be extremely effective, especially
at Durban Harbour - Detection of goods and hand over to the
Commercial Branch of the South African Police
Service - IP rights owner will be informed of the detection
and must file an affidavit confirming the
counterfeit nature of the offending goods - A search and seizure warrant will be obtained and
executed. - A notice in terms of Section 7(1)(d) of the CGA
will be issued and the IP rights owner must
ensure compliance with the provisions of Sections
7 and 9 of the CGA
7 EFFECTIVE ENFORCEMENT AT THE BORDER
Enforcement by the Border Police
- Have proven to be extremely effective, especially
at Durban Harbour - Detection of goods and hand over to the
Commercial Branch of the South African Police
Service - IP rights owner will be informed of the detection
and must file an affidavit confirming the
counterfeit nature of the offending goods - A search and seizure warrant will be obtained and
executed. - A notice in terms of Section 7(1)(d) of the CGA
will be issued and the IP rights owner must
ensure compliance with the provisions of Sections
7 and 9 of the CGA
8 EFFECTIVE ENFORCEMENT AT THE BORDER
Enforcement by the Border Police
- The Border Police has also been successful in
detecting consignments that are in transit to
other territories - Goods in transit fall outside the ambit of the
CGA - Immediately contact enforcement agencies in the
territories concerned to stop goods at the border
of that territory - Recent successes with counterfeit BIC pens and
counterfeit LEVIS jeans detected at Durban
Harbour and eventually stopped by Customs in
Mozambique -
9 EFFECTIVE ENFORCEMENT AT THE BORDER
Co-operation
- Public Private Partnership
- A degree of co-operation must exist between
- the enforcement agencies of the various
territories and - with the IP rights owners is
- Co-operation is vital for cross border enforcement
10 EFFECTIVE ENFORCEMENT AT THE BORDER
Training
- Without training (both on the law and brand
identification) it is difficult, if not
impossible for Customs and/or police officials to
identify goods to be suspected counterfeit detect - Success in South Africa has been largely due to
training initiatives by IP rights owners - Training should be conducted on an on-going basis
11 EFFECTIVE ENFORCEMENT AT THE BORDER
Questions