Estados Unidos de América

Sudáfrica

Observancia de los derechos de propiedad intelectual

Prescripciones especiales relacionadas con las medidas en frontera

37. Article 51 of the TRIPS Agreement requires that countries adopt procedures that enable right holders to request suspension of the importation of counterfeit trademarked goods and pirated copyrighted works. Please identify the competent authority in South Africa authorized to accept applications for a request to suspend release of suspected infringing goods and cite the relevant law or regulation governing such authority.

The procedure described below relates to the provisions of the Counterfeit Goods Act. The responsibility of the border enforcement of intellectual property rights is borne by the Commissioner of Customs and Excise. An applicant needs to supply the Commissioner of Customs and Excise with either a specimen of the protected goods bearing the intellectual property rights sought to be protected or sufficient information from which the essential physical and other distinctive features may be ascertained; sufficient information and particulars as to the subsistence and extent of the intellectual property right as well as the title to the right in question. However the Commissioner may only confiscate such goods for a period not extending beyond the last day of the period for which the intellectual property right in question subsists. The Commissioner is not obliged to confiscate offending goods unless he is furnished with the necessary security in a manner and amount he may require to indemnify the customs authorities and their members against any liability that may be incurred pursuant to the seizure and detention of goods. No specific indemnification is conferred upon the importer and owner of goods which have been suspended. However, where such suspension takes place at the instigation of a complainant any person suffering injury or prejudice because of the suspension of goods alleged to be counterfeit goods, or any action taken by an inspector in effecting this seizure is entitled to claim compensation from the complainant. Compensation may only be claimed from the Commissioner if he or his officials have been grossly negligent in the seizure of the goods or in their detention or storage, or where such person acted in bad faith in performing his duties. The complainant is entitled to a copy of any statement taken down or any other document for evidence procured by a customs inspector in the exercise of his powers of search, seizure and detention. A complainant or suspect is entitled to inspect any goods seized by the Commissioner. Further information in regard to the provisions of the new Counterfeit Goods Act can be obtained from the text of an article by a South African intellectual property lawyer, shortly to be published in a South African legal journal.