The customs authority, which is the General Directorate of Customs, may order the measure pursuant to Article 46 of the draft Law on Copyright and Neighbouring Rights and Article 35 of the draft Law on Trademarks with respect to goods that constitute any of the infringements defined in those Laws. The measure may be ordered by the customs authority on its own initiative or upon an application by the right holder or the Public Prosecutor. Both Articles provide that the measure may be ordered if the customs authority is convinced on the basis of prima facie evidence that such goods (whether imports or exports) constitute infringements of any of the intellectual property rights of the right holder. However, the procedure does not apply to goods in transit or to de minimis imports or goods put on the market in another country by or with the consent of the right holder. This administrative procedure does not preclude the right to resort to the court in the first place to obtain a court order for the measure .
The application if made by the right holder or the Public Prosecutor must include a sufficiently detailed description of the goods to make them readily recognisable by the customs authority. The right holder, if he is the applicant, is required to submit adequate evidence to satisfy the customs authority that there is prima facie an infringement of his intellectual property right. The customs authority has the authority to require the applicant to provide security. The objective is to protect both the defendant and the customs authority and to prevent abuse.
The customs authority is required to decide within a period not exceeding 3 days on whether to accept the application. The customs authority is required to promptly notify the applicant and the importer of its decision to suspend the release of the goods. A petition to challenge the decision may be submitted to the court within 10 days. The goods shall be released if within 10 working days after the right holder has been served with a notice of the suspension; the customs authority is not informed that the right holder has initiated proceedings leading to a decision on the merits of the case. However, the release of the goods will only be authorised if all the conditions for importation or exportation as the case may be have been complied with. The 10 days time limit may be extended in appropriate cases for a further period not exceeding 10 days at the discretion of the General Director of Customs.
The customs authority is prohibited from refusing to provide the right holder and the importer or exporter, if the goods are destined for export, to be notified promptly.
The decision to suspend the release of the goods remains in force unless subsequently annulled by the court or after the lapse of 10 days without the customs authority being informed that proceedings leading to a decision on the merits of the case have been initiated. The customs authority is required to provide both the right holder and the importer or exporter, as the case may be, sufficient opportunity to inspect the goods detained.
Further regulatory matters with respect to the form, payable fees, manner in which applications are to be submitted and how they are to be processed together with the amount of security to be provided will be the subject of an Implementing Ministerial Regulation. The fee to be determined in the Implementing Regulation is not expected to be more than BD 30 (US$80).
The importer or exporter – as the case may be – and the owner of the goods may, through the court, seek equitable compensation based on Article 158 of the Civil Code for any injury caused to them through the wrongful detention of the goods.
