Moyens de faire respecter les DPI
12. Please describe the measures provided by the legislation of Kazakhstan to combat counterfeiting and piracy at the border. Please explain whether the competent authorities are empowered to act ex officio and, if so, please indicate the enforcement actions that may be taken. Please cite the relevant provisions of the legislation.
Border measures in Kazakhstan are applied pursuant to Chapter 46 (Articles 328-333) of the Customs Code of the Customs Union of 27 November 2009 and Section 53 of the Customs Code of Kazakhstan (Articles 436 445). Consistent with the procedures set-out in Chapter 46 and Section 53, Kazakhstan's customs authorities are authorized to take action to prevent the import and export of goods containing objects of intellectual property rights. Kazakhstan's State Revenue Committee maintains a Registry of goods containing intellectual property, which is published periodically. Goods are included in the Registry free of charge, at the request of right holders. This guarantee that the rights of applicants will be protected by the customs authorities for the duration specified in the application, with the maximum period being two years from the date of inclusion in the Registry (with a possible extension, which cannot exceed the period of validity of the right itself). Although right holders can register their intellectual property with the State Revenue Committee, customs officials can exercise ex officio authority to seize suspect goods even if right holders do not have the registration. The CU Customs Code and the Customs Code of Kazakhstan authorize the national customs authorities to suspend the customs processing of goods containing intellectual property for up to ten working days if the right holder applied for such protection and if they found that the goods violated the intellectual property rights of the applicant. When such goods are discovered, the customs authorities attempt to identify right holders by consulting the Unified Customs Registry or Kazakhstan's national Customs Registry. If a right holder did not register its intellectual property rights on these registers, the customs authorities attempt to identify and contact the right holder by consulting the registries of the Ministry of Justice. After the right holder is identified, the customs authorities inform him/her about the goods under investigation and provide the right holder, or his/her representative, with the opportunity to inspect samples/specimens from the goods under customs supervision at the place of temporary storage (Article 440 of the Customs Code of Kazakhstan and CU Commission Decision No. 258 "On Customs Examination under Customs Control" of 20 March 2010). Pursuant to Article 440 of the Customs Code of Kazakhstan, the customs authorities have to provide the right holder with the name and address of the declarant, as well as provide the declarant with the name and address of the right holder. This has to be done within one day of taking a decision to suspend the release of the goods, i.e., before the matter is taken to court and before the infringement is identified by the right holder. Pursuant to the Customs Code of Kazakhstan, the customs authorities are entitled to receive compensation to cover expenses incurred in connection with the suspension of the goods (e.g., for warehouse storage). For goods that proved to be counterfeit, such compensation has to be provided by the declarant, and for goods that proved not to be counterfeit, by the applicant. For goods that proved not to be counterfeit, the right holder compensate the declarant for any damages incurred (minimum security/guarantee of €10,000 is a requirement for right holders wishing to include goods in the national Customs Registry). The exact amount of compensation can be agreed between the declarant and the right holder, or can be determined by the court.