Suspension of release of goods by customs authorities (Article 51)
Pursuant to Article 458.5 of the Code on Customs Regulation of the Republic of Kazakhstan, the customs authorities take measures to protect the rights of rights holders to intellectual property objects, included in the unified customs register of intellectual property objects of the member states of the EEU and (or) the customs register of intellectual property objects of the Republic of Kazakhstan, as well as those not included in such registries.
Unified customs register of intellectual property objects of the member states of the EEU:
Pursuant to Article 459.3 of the Code on Customs Regulation of the Republic of Kazakhstan, the intellectual property objects that can be included in a unified customs register of intellectual property objects of member states of the EEU, shall be the objects of copyright and related rights, trademarks, service marks and appellations of origin of goods.
The rights holder who has sufficient grounds to believe that there may be a violation of his rights to intellectual property objects, provided for by the customs legislation of the EEU and (or) the Republic of Kazakhstan, and other legislation of the Republic of Kazakhstan in connection with the movement of goods across the customs border of the EEU or when performing other actions with the goods that are under a customs control, shall have the right to apply for inclusion of intellectual property into a unified customs register of intellectual property objects of the member states of the EEU.
An application on behalf of the rights holder, who does not have a permanent representation in the customs territory of the EEU, may be filed through the individuals, having a permanent location (registered) in the territory of one of member states of the EEU.
The customs register of intellectual property objects of the Republic of Kazakhstan:
According to Article 461.1 of the Code on Customs Regulation of the Republic of Kazakhstan, inclusion of objects of copyright and related rights, trademarks, service marks and appellations of origin of goods (hereinafter – intellectual property objects) into the customs register shall be carried out by the authorized body at the request of the rights holder or a person, representing the interests of the rights holder.
The rights holder or other person, representing the interests of the rights holder who has sufficient grounds to believe that during the placement of goods under the customs procedures, containing intellectual property objects, their rights to intellectual property objects are violated or can be violated, shall be entitled to submit an application in the form approved by the authorized body on protection of rights to intellectual property objects to the authorized body.
Requirements for filing of application (Article 52)
Unified customs register of intellectual property objects of the member states of the EEU:
In accordance with Article 459.5 of the Code on Customs Regulation of the Republic of Kazakhstan, the application shall be submitted to the Commission of the EEU in respect of one type of intellectual property objects.
The application shall be attached with the documents, confirming the rights to intellectual property objects in each member state of the EEU (certificates, contracts, including those on transfer of rights and license, other documents, which, the rights holder or the person, representing the interests of the rights holder (several rights holders), may submit in support of his rights to intellectual property objects in each member state of the EEU in accordance with the legislation of such member state of the EEU), as well as the documents, confirming the information to be included in the application.
The application and the attached documents shall be submitted in Russian or another language. In case of submission of documents in another language, the application shall be attached with their translation into Russian language.
The customs register of intellectual property objects of the Republic of Kazakhstan:
Pursuant to paragraphs 3 and 4 of Article 461 of the Code on Customs Regulation of the Republic of Kazakhstan, the application shall contain the following information:
- about the rights holder, and in case, if the application is submitted by another person, representing the interests of the rights holder, also about such person;
- information, including in electronic form, about the relevant intellectual property objects, the time period during which the rights holder will need the assistance of customs authorities in protection of his rights, as well as a description of the goods, containing intellectual property objects, with the codes of goods indicated at the level of the first six digits in accordance with the unified Commodity nomenclature of foreign economic activity, the detailed information of the rights holder about the goods, allowing the customs authorities to identify the goods with violation of rights to intellectual property objects;
- a document, confirming the fact of movement of goods across the customs border of the EEU in violation of the rights to intellectual property objects;
- about the persons, to whom the rights holder provided the consent for the use of intellectual property objects.
The application shall be attached with:
- documents (originals or notarized copies thereof), confirming the existence and ownership of intellectual property rights (certificate or contract on transfer of rights, including the licensing, or an extract from the state register of intellectual property objects of the Republic of Kazakhstan or a certificate (extract) about the legal status of a trademark under the international registration or other documents that the rights holder or other person, representing the interests of the right holder, may submit in support of his rights to intellectual property objects);
- the power of attorney, issued by the rights holder to the person, representing his interests;
- the images of the distinguishing features of the original goods, containing intellectual property objects, and of the goods, containing the signs of infringement of the rights to intellectual property objects;
- the obligation of the rights holder or a person, representing the interests of the rights holder, about the compensation for property damage to the declarant and other persons, which may arise due to suspension of release of goods, containing intellectual property objects, in respect of which it is assumed that they are the goods with violation of rights to intellectual property objects, - in cases if it is established that the goods are not the goods with violation of the rights to intellectual property objects;
- a contract of liability insurance of the applicant for damage to other persons.
Security or equivalent assurance (Article 53)
Unified customs register of intellectual property objects of the member states of the EEU:
According to Article 459.9 of the Code on Customs Regulation of the Republic of Kazakhstan, simultaneously with the application, the obligation of the rights holder (several rights holders) shall be submitted on compensation for material harm that may be caused to the declarant, owner, recipient of goods or other persons due to suspension of release of goods.
The rights holder, in order to guarantee the fulfillment of obligation, indicated in para. 9 of thisarticle, shall be obliged, within one month from the date of his notification about the possibility of inclusion of intellectual property objects into the unified customs register of intellectual property objects of the member states of the EEU, to submit to the Commission the contract (contracts) of liability insurance for causing property damage to persons due to suspension of release of goods or a contract (contracts), confirming the fulfillment of the said obligation, that are legally effective in all member states of the EEU.
At the same time the insured sum or the sum of security of fulfillment of an obligation shall be the amount equivalent to not less than ten thousand euro at the exchange rate in force on the day of conclusion of a contract (contracts) of liability insurance or other contract (contracts) or changes to such contracts.
Otherwise, in case of failure of condition, mentioned above, objects of intellectual property shall not be subject to inclusion into Unified customs register of intellectual property objects of the member states of the EEU.
The customs register of intellectual property objects of the Republic of Kazakhstan:
According to Article 461.4 of the Code on Customs Regulation of the Republic of Kazakhstan, applicant also shall submit following documents:
- the obligation of the rights holder or a person, representing the interests of the rights holder, about the compensation for property damage to the declarant and other persons, which may arise due to suspension of release of goods, containing intellectual property objects, in respect of which it is assumed that they are the goods with violation of rights to intellectual property objects, - in cases if it is established that the goods are not the goods with violation of the rights to intellectual property objects;
- a contract of liability insurance of the applicant for damage to other persons.
At that the insurance amount cannot be less than 1,000-fold amount of monthly calculation index, established for the relevant financial year by the law on the republican budget.
Requirements related to the duration of suspension (Article 55)
According to Article 198 of the Code on Customs Regulation of the Republic of Kazakhstan, if, in the course of carrying out of customs operations involving the placement of goods under customs procedures, containing intellectual property objects included in the unified customs register of intellectual property objects of the member states of the EEU or the customs register of intellectual property objects of the Republic of Kazakhstan, the customs authority has found the signs of violation of the rights of the rights holder to the intellectual property objects, the time period for the release of such goods shall be suspended for ten business days.
At the request of the rights holder or a person representing his interests or interests of several rights holders, this period shall be extended by the customs authority, but not more than ten business days if the rights holder or a person representing his interests or interests of several rights holders appealed to the court for protection of rights of the rights holder in accordance with the laws of the Republic of Kazakhstan.
Decisions on suspension of the time period for the release of goods and the extension of the time period for suspension of the time period for the release of goods takes by the head of the customs authority or by the person authorized by him.
Compensation for damage to the importer and the owner of the goods (Article 56)
According to Article 198.7 of the Code on Customs Regulation of the Republic of Kazakhstan, property damage caused to the declarant, the owner, the recipient of goods containing intellectual property objects, as a result of suspension of the time period for the release of goods shall be compensated by the rights holder in case if the court does not establish a violation of the rights of the rights holder.
Right for inspections and information (Article 57)
According to Article 198.5 of the Code on Customs Regulation of the Republic of Kazakhstan, the customs authority shall notify the declarant and the rights holder or a person representing his interests or interests of several rights holders, not later than one business day following the day when the decision is made on suspension of the time period for the release of goods, containing intellectual property objects, and shall also inform the declarant about the name (surname, name, patronymic (if it is indicated in the identity document) and the location (place of residence) of the rights holder and (or) of a person representing his interests or interests of several rights holders, and to the right holder or a person representing his interests or interests of several rights holders - the name (surname, name, patronymic (if it is indicated in the identity document) and the location (place of residence) of the declarant.