Articles 51 and 55 of the TRIPS Agreement require Members to provide procedures for the suspension by the customs authorities of the release of goods into circulation, where a right holder has valid grounds to suspect that the importation of counterfeit trademark or pirated copyright goods is involved.
In South Africa, the Counterfeit Goods Act No. 37 of 1997 provides such procedures.
In terms of Section 15 of the Counterfeit Goods Act, the owner of an intellectual property right (defined in Section 1 to include trademark rights and copyright) may apply to the Commissioner (for Customs and Excise) to seize and detain goods which are counterfeit goods featuring the subject matter of that intellectual property right and which are being imported into the Republic (of South Africa).
The applicant may furnish the Commissioner with a specimen of the goods that are protected, and sufficient information regarding the subsistence of the intellectual property right and his/her title to that right.
The Commissioner must deal with the application without delay, and must grant the application if satisfied on reasonable grounds that the intellectual property right prima facie subsists, that the applicant prima facie is the owner, and that the goods are prima facie protected goods.
The Merchandise Marks Act No. 17 of 1941 (as recently amended) also provides certain procedures which are relevant.
In Section 1 of the Merchandise Marks Act No. 17 of 1941, the concept "inspector" is defined to include the Commissioner of Customs and Excise and certain of his officials. Inspectors are given the power, when they suspect that an offence in terms of that Act has been committed or is likely to be committed (e.g. a false trade description has been applied to goods; such goods will be sold or let or offered for sale or hire; imported goods will be sold or distributed, which bear the name of a South African manufacturer or trader but which were not produced in South Africa and which do not have an indication of origin), inter alia, to seize articles which have a bearing on the offence.
The Customs and Excise Act No. 91 of 1941 also has relevant provisions. Section 113(1)(g) prohibits the importation of unlawful reproductions of copyright works.
