Checklist of Issues on Enforcement under TRIPS Art. 63.2 - View details of the document

Brunei Darussalam

(a) Civil judicial procedures and remedies

The courts which have jurisdiction over intellectual property right infringement cases are: - Intermediate Court; - High Court. Appeals are to the Court of Appeal.

Infringement actions may be brought/instituted: - by the patent owner or exclusive licensee under the Patents Order; - by the trademark owner or registered licensee under the Trade Marks Act; - by the copyright owner, exclusive licensee and performer under the Copyright Order; - by the registered owner or exclusive licensee under the Industrial Design Order; - by the owner of the layout-design or exclusive licensee under the Layout-Design Order. Intellectual property right holders may represent themselves or be represented by a lawyer. There is no mandatory personal appearance before the court by the right holder.

Order 24 of the Rules of the Supreme Court provides for discovery and inspection of documents. Order 24, Rule 1(1) states that there shall be discovery by the parties to the action of the documents which are or have been in their possession, custody or power relating to the matter in question in the action. Order 24, Rule 3(1) provides that the court may order any party to a cause or matter to make and serve on any other party a list of documents which are or have been in his possession, custody or power relating to any matter in question in the cause or matter, and may at the same time or subsequently also order him to make and file an affidavit verifying such a list and to serve a copy thereof on the other party. Order 24, Rule 7A(1) states that the court shall have power to make an order providing for any one or more of the following matters: - the inspection, photographing, preservation, custody and detention of property which appears to the court to be property which may become the subject-matter of subsequent proceedings in the court, or as to which any question may arise in any such proceedings; and - the taking of samples of any such property as is mentioned in the paragraph above and the carrying of any experiment on or with any such property.

The court can impose the common law practice of confidentiality of information from being disclosed. This is an inherent power of the court. The court can, for example, prohibit the reporting of the contents of a document or only permit certain persons of the other party to the proceeding to inspect documents. A court can also order any proceedings to be held in camera if the court is satisfied that it is expedient in the interest of justice, public security or propriety to do so. (Section 15 of the Supreme Court Act.)

Injunction Order 29, Rule 1(1) states that an application for the grant of an injunction may be made by any party to a cause or matter before or after trial of the cause or matter, whether or not a claim for injunction was included in the party's writ, originating summons, counterclaim or third party notice. It may be obtained by an application to the court by summons supported by an affidavit. Whenever the application is one of urgency, it may be made ex parte (without notice of the defendants). The court can grant an injunction where it considers it to be just and convenient to do so. The court followed the criteria laid down by the House of Lords in the case of American Cyanamid vs Ethicon Ltd. [1975] AC 396 as follows: - Is there a serious issue to be tried? - Are damages as adequate? - Where does the "balance of convenience" lie? - Are there any "special factors"? The plaintiff is always required to give a cross-undertaking to damages when an injunction is granted. The purpose is to safeguard the defendant's loss and damages if the plaintiff loses at a trial. - Mareva injunction This is a special type of interlocutory injunction which can be granted by itself or in combination with an other interlocutory injunction and/or an Anton Piller Order and other order. A Mareva injunction temporarily freezes the assets of a defendant which are required to satisfy a judgement or expected judgement in order to prevent dissipation of goods by the defendant within the country or their removal from the jurisdiction of the court. It is an ex parte application and there must be cogent evidence of a risk of dissipation of assets. Order 24, Rule 3(1) allows a person to apply for an order for the discovery of documents before the commencement of proceedings. Order 24, Rule 7 allows a party to an action to apply for an order for the discovery of documents by a person who is not a party to the proceedings. An application made under these provisions must be supported by an affidavit which specifies or describes the documents in respect of which the order is sought and show, that the documents are relevant to an issue arising or likely to arise out of a claim made likely to be made in the proceedings and that the person against whom the order is sought is likely to have or have had in his possession, custody or power. The court cannot make such an order unless it is of the opinion that the discovery sought is necessary either for disposing fairly of the cause or matter or for saving cost. The order may be made on condition the applicant gives security for the costs of the person against whom the order is made or on such terms as the court thinks just. Order 26, Rule 1 allows a party to apply for an order for interrogatories before the commencement of proceedings. An application made under this provision must be supported by an affidavit. The court cannot make such an order unless it is of the opinion that the interrogations sought are necessary either for disposing fairly of the cause or matter or for saving costs. - Anton Piller Order Following the case of Anton Piller KG vs Manufacturing Processes Limited (1976) 1 Ch 55, the court had the power to order the defendant to allow the plaintiff's lawyer to enter and search premises for relevant evidence which can be removed. The preconditions are: - very strong prima facie case; - the damage, potential or actual, must be very serious to the plaintiff; and - there must be clear evidence that the defendant has in his possession incriminating documents or things, and that there is a real possibility that he may destroy such material before any inter partes applications can be made. Where the plaintiff applies for an Anton Piller Order, he is required to give an undertaking that if the court finds that the order or the carrying out of the order has caused loss to the defendant, and decides that the defendants should be compensated for that loss, the plaintiff shall comply any order which the court may make as regards damages. A permanent injunction may be granted where the plaintiff establishes infringement. Damages Damages are compensatory to compensate a plaintiff for loss or injury caused by the infringement of his intellectual property rights and not to punish the defendant. - Patents Section 67(1)(c) and (d) provides that in infringement proceedings the proprietor of a patent may claim for damages and an account of the profits derived by him from the infringement. There are restrictions on recovery of damages for infringement in that damages will not be awarded and an account of profit will not be made against a defendant if he proves that at the time of the infringement he was not aware that the product is a patented product, or if the infringement was committed during the period of six (6) months immediately following the end of the prescribed period of renewal fee and any additional fee are paid. (See Section 69(1) and (2).) - Trademarks Section 16(2) provides that in an action for infringement, all such relief by way of damages, injunction, account or otherwise is available to him as is available in respect of the infringement of any other property right. - Industrial Designs Section 48(1) provides that in infringement proceedings in any industrial design is actionable by the registered owner and remedies available are by way of damages, injunction or account of profits. However, the court will not award damages and order an account of profits in respect of the same infringement. Section 52 gives further restriction on recovery of damages or profits if the registered owner or an exclusive licensee of the industrial designs fails to register the transaction before the end of the period of six months beginning with its date or if the court is satisfied that it was not practicable to make such an application before the end of that period and it was made as soon as practicable after the end of the period. - Copyright Section 99(2) provides that in an action for infringement of copyright, all such relief by way of damages, injunction, account or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right. If the defendant in an action for infringement showed that at the time of the infringement he did not know and had no reason to believe the work was copyrighted, the plaintiff is not entitled to damages against him, but this is without prejudice to any other remedy. (Section 100(1)) The court may in any action for infringement of copyright take other circumstances such as the flagrancy of the infringement and any benefit accruing to the defendant by reason of the infringement award such additional damages as the justice of the case may require. - Layout-Designs Section 23(1)(a) and (b) provides the remedies available to the owner of layout-design rights in cases of infringement of their layout-design rights which include payment of damages as well as an account of profits. Section 23(3) gives the court power to consider circumstances such as the flagrancy of the infringement and any benefit accruing to the defendant, when the court decides whether to award such damages or additional damages as the justice of the case may require. In conclusion, as damages are compensatory the plaintiff has the option to elect to sue for an account of profits. It is an equitable remedy and is in the discretion of the court and whether the court is prepared to make such an order depending on the circumstances of the case. The actual method by which damages are to be assessed would depend on how the plaintiff exploited his intellectual property rights. Destruction To facilitate the enforcement of an injunction, a court may exercise the discretion to order the delivery up of infringing articles and documents for destruction. - Patents Section 67(1)(b) provides for delivery or destruction of any patented product in relation to which the patent is infringed or any article in which the product is inextricably comprised or any implement the predominant use of which has been in the creation of the infringing product. - Trademarks Section 18(4) provides for the delivery of infringing goods, material or articles to such person as the court may direct but the application has to be made after the end of a certain time-limit. Section 17(1) provides for order for erasure of offending sign in cases of trademark infringement or if not reasonably practicable, to destroy the infringing goods. - Industrial designs Section 53(1) provides for the court to order for delivery up of infringing articles and section 54(1) provides that an application may be made to the court for order for disposal or of forfeiture of infringing articles. - Copyright The court may order that any infringing copy, or any article which is specifically designed or adapted for making copies of a work or other subject-matter and which has been or is to be used for making infringing copies of the work or subject-matter, in the possession of the defendant or before the court, be delivered up to the plaintiff or to such other person as it may direct who shall retain the copy or object pending the making of an order. (Section 101) The court may order that the infringing copy or other object be forfeited to the plaintiff or destroyed or otherwise dealt with as the court thinks fit. (Section 212) Other persons having an interest in the copy or other object are entitled to participate in the proceedings. (Section 212(3)) In considering what order, if any, shall be made, the court shall have regard to whether other remedies are available in action for copyright infringement would be adequate to compensate the plaintiff and to protect the plaintiff's interest. Where there is more that one person interested in the copy or other articles, the court may direct that the object be sold or otherwise dealt with and the proceeds divided, or make any other order as it thinks just. (Section 212(5)) - Layout-Designs A court may make an order for the delivery up or destruction of any article which are infringing articles. (Section 23(1)(c) and (d)) Other remedies Section 102(1) of the Copyright Order provides for the right to seize infringing copies which are found exposed or otherwise immediately available for sale or hire with the requirement that notice of time and place of the proposed seizure must be given to a local police station.

The court has inherent and statutory authority to make an order requiring the infringer to inform the right holder of the identity of third persons involved in the production and distribution of the goods or services.

Damages and injunction may be sought for groundless threats of legal proceedings under the patents Order, the Trademarks Act, the Industrial Designs Order and the Layout-Designs Order. An interlocutory injunction is normally granted only if the plaintiff gives an undertaking as to damages. If it is decided at trial that the injunction has been wrongly ordered, the court may order the unsuccessful plaintiff to pay damages to the defendant. The Copyright Order and the Trademarks Act provide that in a case arising from a border seizure if a court decides that there was no infringement the court may order the claimant to the importation, to pay compensation in such amount as the court thinks fit to the defendant upon being satisfied that the defendant has suffered damage as a result of the seizure. Public authorities and officials cannot be held personally liable in a situation in which their actions were within the scope of their duties and responsibilities and in which they were acting in good faith.

The length and cost of proceedings will vary with each case. Factors which can influence the length and cost are the number of parties involved, the complexity of the proceedings and availability of witnesses.

(b) Administrative procedures and remedies

Civil intellectual property enforcement in Brunei Darussalam occurs mostly at the judicial level with the exception of border control measures which come under the purview of the Customs and Excise Department.

(a) Judicial measures

In Brunei, the High Court Rules supplement the specific provisions of the intellectual property laws which contain provisions that give the court the authority to impose provisional measures to prevent infringement, including the granting of ex parte orders to protect the intellectual property right owner. Order 29, Rule 9, provides that the court may by order grant injunction in all cases in which it appears to the court to be just and convenient to do so. Any such order may be made either unconditionally or on such terms and conditions as the court thinks fit. A court can order a temporary order which remains in force until the trial or until amended by further order. It may be obtained by an application to court by summons supported by affidavit and whenever the application is one of urgency, it may be made ex parte.

Such provisional measures may be ordered by the judicial authorities in cases where the court considers it to be just and convenient to do so. The following criteria would be followed by the court in granting ex parte application: - where the delay could cause irreparable harm to the intellectual property right owner; - where there is a demonstrable risk of evidence being destroyed. The court has the discretion to require the plaintiff to provide a security or equivalent assurance to protect the defendant.

The circumstances in which such measures may be ordered are discussed in the responses to questions 5 and 10 above. Due to the nature of the application, the procedures for the initiation of the provisional measures are usually done by writ and supported by an affidavit. The court has the discretion to set the date to hear the application for interim injunction and the order would be given on the same day depending on the seriousness of the allegation. The order could be extracted on the same day and executed immediately.

[Answer 5: Injunction Order 29, Rule 1(1) states that an application for the grant of an injunction may be made by any party to a cause or matter before or after trial of the cause or matter, whether or not a claim for injunction was included in the party's writ, originating summons, counterclaim or third party notice. It may be obtained by an application to the court by summons supported by an affidavit. Whenever the application is one of urgency, it may be made ex parte (without notice of the defendants). The court can grant an injunction where it considers it to be just and convenient to do so. The court followed the criteria laid down by the House of Lords in the case of American Cyanamid vs Ethicon Ltd. [1975] AC 396 as follows: - Is there a serious issue to be tried? - Are damages as adequate? - Where does the "balance of convenience" lie? - Are there any "special factors"? The plaintiff is always required to give a cross-undertaking to damages when an injunction is granted. The purpose is to safeguard the defendant's loss and damages if the plaintiff loses at a trial. - Mareva injunction This is a special type of interlocutory injunction which can be granted by itself or in combination with an other interlocutory injunction and/or an Anton Piller Order and other order. A Mareva injunction temporarily freezes the assets of a defendant which are required to satisfy a judgement or expected judgement in order to prevent dissipation of goods by the defendant within the country or their removal from the jurisdiction of the court. It is an ex parte application and there must be cogent evidence of a risk of dissipation of assets. Order 24, Rule 3(1) allows a person to apply for an order for the discovery of documents before the commencement of proceedings. Order 24, Rule 7 allows a party to an action to apply for an order for the discovery of documents by a person who is not a party to the proceedings. An application made under these provisions must be supported by an affidavit which specifies or describes the documents in respect of which the order is sought and show, that the documents are relevant to an issue arising or likely to arise out of a claim made likely to be made in the proceedings and that the person against whom the order is sought is likely to have or have had in his possession, custody or power. The court cannot make such an order unless it is of the opinion that the discovery sought is necessary either for disposing fairly of the cause or matter or for saving cost. The order may be made on condition the applicant gives security for the costs of the person against whom the order is made or on such terms as the court thinks just. Order 26, Rule 1 allows a party to apply for an order for interrogatories before the commencement of proceedings. An application made under this provision must be supported by an affidavit. The court cannot make such an order unless it is of the opinion that the interrogations sought are necessary either for disposing fairly of the cause or matter or for saving costs. - Anton Piller Order Following the case of Anton Piller KG vs Manufacturing Processes Limited (1976) 1 Ch 55, the court had the power to order the defendant to allow the plaintiff's lawyer to enter and search premises for relevant evidence which can be removed. The preconditions are: - very strong prima facie case; - the damage, potential or actual, must be very serious to the plaintiff; and - there must be clear evidence that the defendant has in his possession incriminating documents or things, and that there is a real possibility that he may destroy such material before any inter partes applications can be made. Where the plaintiff applies for an Anton Piller Order, he is required to give an undertaking that if the court finds that the order or the carrying out of the order has caused loss to the defendant, and decides that the defendants should be compensated for that loss, the plaintiff shall comply any order which the court may make as regards damages. A permanent injunction may be granted where the plaintiff establishes infringement. Damages Damages are compensatory to compensate a plaintiff for loss or injury caused by the infringement of his intellectual property rights and not to punish the defendant. - Patents Section 67(1)(c) and (d) provides that in infringement proceedings the proprietor of a patent may claim for damages and an account of the profits derived by him from the infringement. There are restrictions on recovery of damages for infringement in that damages will not be awarded and an account of profit will not be made against a defendant if he proves that at the time of the infringement he was not aware that the product is a patented product, or if the infringement was committed during the period of six (6) months immediately following the end of the prescribed period of renewal fee and any additional fee are paid. (See Section 69(1) and (2).) - Trademarks Section 16(2) provides that in an action for infringement, all such relief by way of damages, injunction, account or otherwise is available to him as is available in respect of the infringement of any other property right. - Industrial Designs Section 48(1) provides that in infringement proceedings in any industrial design is actionable by the registered owner and remedies available are by way of damages, injunction or account of profits. However, the court will not award damages and order an account of profits in respect of the same infringement. Section 52 gives further restriction on recovery of damages or profits if the registered owner or an exclusive licensee of the industrial designs fails to register the transaction before the end of the period of six months beginning with its date or if the court is satisfied that it was not practicable to make such an application before the end of that period and it was made as soon as practicable after the end of the period. - Copyright Section 99(2) provides that in an action for infringement of copyright, all such relief by way of damages, injunction, account or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right. If the defendant in an action for infringement showed that at the time of the infringement he did not know and had no reason to believe the work was copyrighted, the plaintiff is not entitled to damages against him, but this is without prejudice to any other remedy. (Section 100(1)) The court may in any action for infringement of copyright take other circumstances such as the flagrancy of the infringement and any benefit accruing to the defendant by reason of the infringement award such additional damages as the justice of the case may require. - Layout-Designs Section 23(1)(a) and (b) provides the remedies available to the owner of layout-design rights in cases of infringement of their layout-design rights which include payment of damages as well as an account of profits. Section 23(3) gives the court power to consider circumstances such as the flagrancy of the infringement and any benefit accruing to the defendant, when the court decides whether to award such damages or additional damages as the justice of the case may require. In conclusion, as damages are compensatory the plaintiff has the option to elect to sue for an account of profits. It is an equitable remedy and is in the discretion of the court and whether the court is prepared to make such an order depending on the circumstances of the case. The actual method by which damages are to be assessed would depend on how the plaintiff exploited his intellectual property rights. Destruction To facilitate the enforcement of an injunction, a court may exercise the discretion to order the delivery up of infringing articles and documents for destruction. - Patents Section 67(1)(b) provides for delivery or destruction of any patented product in relation to which the patent is infringed or any article in which the product is inextricably comprised or any implement the predominant use of which has been in the creation of the infringing product. - Trademarks Section 18(4) provides for the delivery of infringing goods, material or articles to such person as the court may direct but the application has to be made after the end of a certain time-limit. Section 17(1) provides for order for erasure of offending sign in cases of trademark infringement or if not reasonably practicable, to destroy the infringing goods. - Industrial designs Section 53(1) provides for the court to order for delivery up of infringing articles and section 54(1) provides that an application may be made to the court for order for disposal or of forfeiture of infringing articles. - Copyright The court may order that any infringing copy, or any article which is specifically designed or adapted for making copies of a work or other subject-matter and which has been or is to be used for making infringing copies of the work or subject-matter, in the possession of the defendant or before the court, be delivered up to the plaintiff or to such other person as it may direct who shall retain the copy or object pending the making of an order. (Section 101) The court may order that the infringing copy or other object be forfeited to the plaintiff or destroyed or otherwise dealt with as the court thinks fit. (Section 212) Other persons having an interest in the copy or other object are entitled to participate in the proceedings. (Section 212(3)) In considering what order, if any, shall be made, the court shall have regard to whether other remedies are available in action for copyright infringement would be adequate to compensate the plaintiff and to protect the plaintiff's interest. Where there is more that one person interested in the copy or other articles, the court may direct that the object be sold or otherwise dealt with and the proceeds divided, or make any other order as it thinks just. (Section 212(5)) - Layout-Designs A court may make an order for the delivery up or destruction of any article which are infringing articles. (Section 23(1)(c) and (d)) Other remedies Section 102(1) of the Copyright Order provides for the right to seize infringing copies which are found exposed or otherwise immediately available for sale or hire with the requirement that notice of time and place of the proposed seizure must be given to a local police station.]

[Answer 10: In Brunei, the High Court Rules supplement the specific provisions of the intellectual property laws which contain provisions that give the court the authority to impose provisional measures to prevent infringement, including the granting of ex parte orders to protect the intellectual property right owner. Order 29, Rule 9, provides that the court may by order grant injunction in all cases in which it appears to the court to be just and convenient to do so. Any such order may be made either unconditionally or on such terms and conditions as the court thinks fit. A court can order a temporary order which remains in force until the trial or until amended by further order. It may be obtained by an application to court by summons supported by affidavit and whenever the application is one of urgency, it may be made ex parte.]

Due to the nature of the application, the court would exercise its discretion on how long the proceedings will take. There are no provisions which govern the length of the proceedings. Provided that a request for a provisional measure is made promptly, the court will then set a timetable for further procedure and a hearing date will be fixed. No specific data is available on actual duration and cost of proceedings.

(b) Administrative measures

There are no provisions in the laws of Brunei Darussalam whereby provisional relief can be given by an administrative body except special requirement relating to border measures.

At present the right holder who has valid grounds for suspecting that the importation of counterfeit mark or pirated copyright goods may take place can lodge an application in writing to the Controller of Customs. Section 82 of the Trademarks Act allows Customs to seize trademarks infringing goods which are imported for the purpose of trade, if a notice of objection to the importation of the goods has been given to the Customs by the proprietor of the registered trademark (or a licensee). Section 109 of the Copyright Order allows the Customs to detain copies of copyright materials imported for trade purposes or distribution, if the owner of the copyright has given a notice of objection to the Customs. In line with the Agreement on Trade-Related Aspects of Intellectual Property Rights, goods and copyright materials imported for personal use only and goods in transit are not covered under the provision for seizure. Border procedures are not available in respect of exports.

Article 51 – Suspension of release by the Customs Authorities Under the Trademarks Act and the Copyright Order, a right holder who has valid grounds for suspecting that the importation of a counterfeit trademark or pirated copyright goods may take place, can make an application in writing to the Customs to detain the goods. - Article 52 – Application Regulations made under the Trademarks Act and the Copyright Order require that notices lodged should be sufficiently supported by documents and evidence that the claimant is the owner of the copyright or the proprietor/licensee of a registered trademark. The owner or proprietor must provide information and evidence in support of the claim that the goods to be detained infringe the trademark or the copyright. Customs may also require the person serving the notice to provide such information and evidence that is reasonably required for the identification of the infringing materials. A notice lodge will be in force for not longer than five (5) years from the date of notice. - Article 53 – Security or equivalent assurance Regulation 5 of the Trademarks (Importation of Infringing Goods) Regulation and Section 113(2) of the Copyright Order provide that the person giving notice under the Trademarks Act or the Copyright Order may be required to provide a security to indemnify - the Government for any liability and expenses which it may incur as a result of the detention; - a person suffering damage as a result of the detention. The security may be in the form of a deposit of money. After the goods had been detained, the Customs would give the importer and the claimant, either in person or by post, a written notice of determination whether or not the goods appear to be infringing goods. The notice will state that the goods detained shall be returned to the importer of the goods unless an action for infringement of copyright or trademark involved is instituted within ten (10) days from the date the notice is served. Before the expiry of the detention period, the claimant can make a written request to the Customs for the extension of the detention period and it can be extended to twenty (20) days if the Customs consider it appropriate to do so. If there is no order from the court to prevent the release of the seized goods, the Customs will release the seized goods to the importer. - Article 56 – Indemnification of the importer and the owner of the goods Under Section 89(4) of the Trademarks Act and Section 116(4) of the Copyright Order, if: - the action is dismissed or discontinued, or if the court decides that the relevant registered trademark or copyright was not infringed by the importation of the seized goods; and - the importer or owner has suffered loss or damage as a result, the court may order the claimant to pay compensation in such amount as the court thinks fit. - Article 57 – Right of inspection and information The claimant or the importer may be allowed to remove a sample of the seized goods for inspection.

The requirement for the retention of goods seized under the Trademarks Act and the Copyright Order are described in the response to question 16 above. The right holder or the appointed agent must initiate an action for infringement of the copyright or trademark involved within ten (10) working days from the date that notice is served to inform him about the seizure of the goods. This can be extended to twenty (20) days upon application to the Customs. Customs would release the goods if the court orders the release of the seized goods at any time after the infringement action has been commenced. There is no available data on the actual duration or cost of proceedings at the moment.

[Answer 16: Article 51 – Suspension of release by the Customs Authorities Under the Trademarks Act and the Copyright Order, a right holder who has valid grounds for suspecting that the importation of a counterfeit trademark or pirated copyright goods may take place, can make an application in writing to the Customs to detain the goods. - Article 52 – Application Regulations made under the Trademarks Act and the Copyright Order require that notices lodged should be sufficiently supported by documents and evidence that the claimant is the owner of the copyright or the proprietor/licensee of a registered trademark. The owner or proprietor must provide information and evidence in support of the claim that the goods to be detained infringe the trademark or the copyright. Customs may also require the person serving the notice to provide such information and evidence that is reasonably required for the identification of the infringing materials. A notice lodge will be in force for not longer than five (5) years from the date of notice. - Article 53 – Security or equivalent assurance Regulation 5 of the Trademarks (Importation of Infringing Goods) Regulation and Section 113(2) of the Copyright Order provide that the person giving notice under the Trademarks Act or the Copyright Order may be required to provide a security to indemnify - the Government for any liability and expenses which it may incur as a result of the detention; - a person suffering damage as a result of the detention. The security may be in the form of a deposit of money. After the goods had been detained, the Customs would give the importer and the claimant, either in person or by post, a written notice of determination whether or not the goods appear to be infringing goods. The notice will state that the goods detained shall be returned to the importer of the goods unless an action for infringement of copyright or trademark involved is instituted within ten (10) days from the date the notice is served. Before the expiry of the detention period, the claimant can make a written request to the Customs for the extension of the detention period and it can be extended to twenty (20) days if the Customs consider it appropriate to do so. If there is no order from the court to prevent the release of the seized goods, the Customs will release the seized goods to the importer. - Article 56 – Indemnification of the importer and the owner of the goods Under Section 89(4) of the Trademarks Act and Section 116(4) of the Copyright Order, if: - the action is dismissed or discontinued, or if the court decides that the relevant registered trademark or copyright was not infringed by the importation of the seized goods; and - the importer or owner has suffered loss or damage as a result, the court may order the claimant to pay compensation in such amount as the court thinks fit. - Article 57 – Right of inspection and information The claimant or the importer may be allowed to remove a sample of the seized goods for inspection.]

The legislation on intellectual property is complaint-based. The right holder has to initiate the complaint for the competent authorities to act upon the information.

The competent authorities do not have any power to order any remedies. Only the court has the power to order remedies.

The courts which have jurisdiction over criminal acts of infringement of intellectual property rights are the Magistrate's Court, the Intermediate Court and the High Court. The Magistrate's Court has the power to impose imprisonment not exceeding seven (7) years or a fine of B$10,000 and whipping. The Intermediate Court has the jurisdiction to try all offences which are not punishable by death or imprisonment for life or imprisonment exceeding twenty (20) years. The High Court has the widest criminal jurisdiction.

Under the Copyright Order: A person commits an offence who, without the licence of the copyright owner - makes for sale or hire; - imports otherwise than for private and domestic use; - communicates the works to the public; - in the course of business sells or lets for hire, offers or exposes for sale or hire, exhibits to the public or distributes any article which he knows or has reason to believe is an infringing copy, shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding two (2) years, a fine or both. In the case of making illicit recordings the person shall be liable on conviction to imprisonment for a term not exceeding two (2) years, a fine or both. A person commits an offence when he makes an article specifically designed or adapted for making copies of a particular copyright work ar has it in his possession when he knows or had reason to believe that it was used to make infringing copies. On conviction he shall be liable to imprisonment for a term not exceeding six (6) months, a fine not exceeding $5,000 or both. A person commits an offence if he causes the public performance of a literary, dramatic or musical work or the playing or showing in public of a sound recording or film if he knew or had reason to believe that copyright would be infringed. He shall be liable on conviction to imprisonment for a term not exceeding six (6) months, a fine not exceeding $5,000 or both. - Under the Trademarks Act: it is an offence (without the consent of the registered proprietor) - to apply to goods or their packaging a sign identical to a registered trademark; - to sell, let for hire or expose for sale or distribute goods which bear or the packaging of which bears such sign; - to have in possession in the course of a business any such goods; - to apply a sign identical to a registered trademark for labeling or for advertising goods; - to use such material in the course of a business; - to have in custody such material; - to make an article specifically designed or adapted for making copies or have such article in his possession; the person shall on conviction be liable to imprisonment for a term not exceeding ten (10) years, a fine or both. A person commits an offence if he counterfeits a registered trademark and shall be liable on conviction to imprisonment for a term not exceeding five (5) years, a fine not exceeding $100,000 or both. A person who: - makes a trademark nearly resembling a registered trademark as to be calculated to deceive, or - falsifies any genuine trademark where by alteration, addition, effacement or otherwise, without the consent of the proprietor of the trademark shall be deemed to counterfeit the trademark. In a prosecution under this section, the burden of proving the consent of the proprietor shall lie on the defendant. Any person who: - falsely represents that a mark is a registered trademark; - makes a false representation as to the goods or services for which a trademark is registered, is guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000. Any person who: - makes, or causes to be made, a false entry in the register; - makes, or causes to be made, anything false purporting to be a copy of an entry in the register, or - produces or tendered or caused to be produced or tendered in evidence anything referred to in the above, knowing or having reason to believe that it is false, is guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding five (5) years, a fine not exceeding $50,000 or both. Any person who falsely applies a registered trademark to goods or services shall unless he proves that he acted innocently, be guilty of an offence and shall be liable on conviction to imprisonment not exceeding five (5) years, a fine not exceeding $100,000 or both. Any person who: - makes or has in his possession any die, plate or other instrument for the purpose of counterfeiting a trademark, or - has in his possession a trademark for the purpose of denoting that any goods are the manufacture or merchandise of a person whose manufacture or merchandise they are not, is guilty of an offence and liable on conviction to imprisonment for a term not exceeding five (5) years, a fine not exceeding $100,000 or both. Any person who: - imports into Brunei Darussalam for the purpose of trade or manufacture; - sells or exposes for sale or - has in his possession for the purpose of trade or manufacture - any goods to which a registered trademark is falsely applied shall, unless he proves that, - having taken all reasonable precaution against committing an offence under this section, he had, at the time of the commission of the alleged offence no reason to suspect the genuineness of the marks and on demand made by or on behalf of the prosecution, he gives all the information in his power with respect to the persons from whom he obtained the goods or - he acted innocently, is guilty of an offence and liable on conviction to imprisonment for a term not exceeding five (5) years, a fine not exceeding $10,000 for each good or thing to which the counterfeit trademark had been applied (but not exceeding in the aggregate $100,000) or to both.

The Police are responsible for initiating criminal proceedings based on the complaints made by the right holder. Prosecution on behalf of the State is done by the Public Prosecutor.

Private persons have no standing to initiate criminal proceedings.

The Copyright Order and the Trademarks Act make provision for remedies of imprisonment, monetary fines, seizure, forfeiture and destruction of infringing goods and materials and implement for their production. For fines and penalties please see the answer to question 21 above.

[Answer 21: Under the Copyright Order: A person commits an offence who, without the licence of the copyright owner - makes for sale or hire; - imports otherwise than for private and domestic use; - communicates the works to the public; - in the course of business sells or lets for hire, offers or exposes for sale or hire, exhibits to the public or distributes any article which he knows or has reason to believe is an infringing copy, shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding two (2) years, a fine or both. In the case of making illicit recordings the person shall be liable on conviction to imprisonment for a term not exceeding two (2) years, a fine or both. A person commits an offence when he makes an article specifically designed or adapted for making copies of a particular copyright work ar has it in his possession when he knows or had reason to believe that it was used to make infringing copies. On conviction he shall be liable to imprisonment for a term not exceeding six (6) months, a fine not exceeding $5,000 or both. A person commits an offence if he causes the public performance of a literary, dramatic or musical work or the playing or showing in public of a sound recording or film if he knew or had reason to believe that copyright would be infringed. He shall be liable on conviction to imprisonment for a term not exceeding six (6) months, a fine not exceeding $5,000 or both. - Under the Trademarks Act: it is an offence (without the consent of the registered proprietor) - to apply to goods or their packaging a sign identical to a registered trademark; - to sell, let for hire or expose for sale or distribute goods which bear or the packaging of which bears such sign; - to have in possession in the course of a business any such goods; - to apply a sign identical to a registered trademark for labeling or for advertising goods; - to use such material in the course of a business; - to have in custody such material; - to make an article specifically designed or adapted for making copies or have such article in his possession; the person shall on conviction be liable to imprisonment for a term not exceeding ten (10) years, a fine or both. A person commits an offence if he counterfeits a registered trademark and shall be liable on conviction to imprisonment for a term not exceeding five (5) years, a fine not exceeding $100,000 or both. A person who: - makes a trademark nearly resembling a registered trademark as to be calculated to deceive, or - falsifies any genuine trademark where by alteration, addition, effacement or otherwise, without the consent of the proprietor of the trademark shall be deemed to counterfeit the trademark. In a prosecution under this section, the burden of proving the consent of the proprietor shall lie on the defendant. Any person who: - falsely represents that a mark is a registered trademark; - makes a false representation as to the goods or services for which a trademark is registered, is guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000. Any person who: - makes, or causes to be made, a false entry in the register; - makes, or causes to be made, anything false purporting to be a copy of an entry in the register, or - produces or tendered or caused to be produced or tendered in evidence anything referred to in the above, knowing or having reason to believe that it is false, is guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding five (5) years, a fine not exceeding $50,000 or both. Any person who falsely applies a registered trademark to goods or services shall unless he proves that he acted innocently, be guilty of an offence and shall be liable on conviction to imprisonment not exceeding five (5) years, a fine not exceeding $100,000 or both. Any person who: - makes or has in his possession any die, plate or other instrument for the purpose of counterfeiting a trademark, or - has in his possession a trademark for the purpose of denoting that any goods are the manufacture or merchandise of a person whose manufacture or merchandise they are not, is guilty of an offence and liable on conviction to imprisonment for a term not exceeding five (5) years, a fine not exceeding $100,000 or both. Any person who: - imports into Brunei Darussalam for the purpose of trade or manufacture; - sells or exposes for sale or - has in his possession for the purpose of trade or manufacture - any goods to which a registered trademark is falsely applied shall, unless he proves that, - having taken all reasonable precaution against committing an offence under this section, he had, at the time of the commission of the alleged offence no reason to suspect the genuineness of the marks and on demand made by or on behalf of the prosecution, he gives all the information in his power with respect to the persons from whom he obtained the goods or - he acted innocently, is guilty of an offence and liable on conviction to imprisonment for a term not exceeding five (5) years, a fine not exceeding $10,000 for each good or thing to which the counterfeit trademark had been applied (but not exceeding in the aggregate $100,000) or to both.]

Please refer to the answer to question 8 above. The proceedings are in accordance to the Criminal Procedure Code. No data are available on the actual duration of proceedings and their cost.

[Answer 8: The length and cost of proceedings will vary with each case. Factors which can influence the length and cost are the number of parties involved, the complexity of the proceedings and availability of witnesses.]