Estados Unidos de América
Observancia de los derechos de propiedad intelectual
Prescripciones especiales relacionadas con las medidas en frontera
39. Please explain whether procedures, permissible under Article 51 of the TRIPS Agreement, are available to stop the export of goods suspected of infringing copyrights and/or trademarks.
(a) There is no specific prohibition or exclusion in respect of goods emanating from another member of a customs union or goods in transit or de minimis imports. In respect of goods which embody works of copyright, it is possible that such goods although placed on the market in another country by or with the consent of the right holder, may be subject to confiscation where such right holder has ceded his copyright to the goods or the packaging thereof to a South African company licensee/distributor. In other words, so-called grey goods may in certain circumstances be suspended by the customs authorities. Our Copyright Act provides a mechanism whereby a local licensee or distributor could take cession of the copyright in a work/goods which embody copyright, and thereby prohibit the importation into South Africa of such goods, even though emanating from the true manufacturer thereof. The legal question in such instances is whether the manufacture of these goods in South Africa would have constituted an infringement of the copyright therein. The border provisions are specifically designed to curb the importation into South Africa of counterfeit goods, however, these provisions are equally applicable in respect of exports in the sense that if same are located they could be confiscated as well. (b) Section 15 of the Counterfeit Goods Act provides as set out in Annex 3 below.