Source: Federal Customs
Service of the Russian Federation
Regulation
on protection of intellectual property rights by customs authorities
I. General Provisions
1.
Regulation
on Protection of Intellectual Property Rights by Customs Authorities
(hereinafter referred to as the “Regulation") has been elaborated on the
basis of the customs legislation of the Russian Federation and laws of the
Russian Federation on intellectual property, as well as on the basis of
international treaties to which the Russian Federation is a party and other
commitments of the Russian Federation for the purpose of protecting
intellectual property rights and counteracting illegal carriage of goods
containing objects of intellectual property across the customs border of the
Russian Federation (hereinafter referred to as the “customs border”).
2.
In
accordance with the Customs Code of the Russian Federation (hereinafter
referred to as the “Code”), the Regulation stipulates a unified procedure for
ensuring the protection of intellectual property rights by the customs
authorities, including the procedure for filing application for action to
suspend release of goods, requirements in respect of the content of such
application depending on the type of intellectual property and the procedure
for maintaining the register of intellectual property objects.
3.
The
rightholder has the right to file an application for action to suspend release
of only those goods which contain objects protected by copyright and related
rights, trademarks, service marks, appellations of origin and in respect of
which the rightholder has valid grounds to suspect that carriage of such across
the customs border or any other operations with such goods under customs
control may entail violations of the exclusive rights of the rightholder under
the laws of the Russian Federation on intellectual property (hereinafter
referred to as “suspected counterfeit goods”).
4.
Customs
authorities shall take measures to suspend release of suspected counterfeit
goods on the basis of the application filed by the rightholder or his
representative.
5.
Measures
to suspend release of suspected counterfeit goods shall be taken by the customs
authorities in the course of carriage of or other operation with the goods
being under customs control. According to Article 360 of the Code, goods
imported into the customs territory of the Russian Federation shall be
considered to be under customs control from the moment of crossing the customs
border when entering the customs territory of the Russian Federation until:
o
release
thereof into free circulation;
o
destruction
thereof;
o
renouncement
of the rights thereto for the benefit of the state;
o
transfer
thereof to federal ownership or disposal in any other way in accordance with
the customs laws of the Russian Federation - such goods and means of transport
actually leave the customs territory of the Russian Federation Russian goods
and means of transport shall be considered to be under customs control in the
course of exportation thereof from the customs territory of the Russian
Federation from the moment the customs declaration is accepted or other action
aimed at exporting the goods from the customs territory of the Russian
Federation is taken and until crossing the customs border.
6.
Measures
to suspend release of suspected counterfeit goods shall be taken by the customs
authorities regardless of the declared customs regime or any other customs
procedure under which the goods are placed.
7.
Measures
taken by the customs authorities to suspend the release of suspected counterfeit
goods shall not prevent the rightholder from protecting his rights under the
laws of the Russian Federation.
8.
For
the purpose of providing protection of intellectual property rights, methods of
risk analysis can be applied in order to determine goods, documents and natural
persons subject to inspection, as well as the extent of such inspection.
II. Filing Applications for Action to
Suspend Release of Goods, Procedure for Processing Applications and Decision
Making.
9.
Where
the rightholder or his representative (hereinafter referred to as the
“applicant”) has valid grounds to believe that the carriage of goods across the
customs border or any other operations with goods under customs control may
entail violation of the rightholder’s rights under the laws of the Russian
Federation on intellectual property, he shall have the right to file an
application for action to suspend release of such goods (hereinafter referred
to as the “Application”).
10.
The
Application shall be filed in writing with the State Customs Committee of the
Russian Federation (SCC of Russia). The Application and documents attached
thereto shall be delivered directly to the SCC of Russia or sent by mail. The
Application and documents attached thereto shall be prepared in compliance with
the following requirements: - copies of documents shall be of good quality and
bear clear imprints of stamps or seals; - the documents shall include an
inventory specifying the number of pages in each document.
The Application and documents shall be placed into a cardboard folder or a
heavy-paper envelope. The Application and documents can be communicated by
facsimile transmission provided that originals are subsequently presented in
compliance with the requirements set forth in Item 33 of the present Regulation.
11.
Applications
filed by a legal entity shall be signed by its head or substitute thereof. The
signature shall be certified by the imprint of the seal of the legal entity.
12.
Applications
on behalf of the rightholder who is a foreign entity, for whom representation
on the territory of the Russian Federation in the customs authorities under
Items 59-64 of the present Regulation is not possible, can be filed through
Russian legal entities having permanent a seat in the Russian Federation, or by
natural persons residing in the Russian Federation, including those registered
on the territory of the Russian Federation as individual businessmen.
13.
The
Application shall relate to one object of intellectual property only (objects
protected by copyright and related rights, trademarks, service marks and
appellations of origin).
14.
The
Application shall be prepared in Russian. In accordance with the present
Regulation, certain data may be submitted in a language other than Russian.
Documents attached to the application or submitted to the SCC of Russia at the
latter’s request shall be prepared in Russian. Where such documents are filed
in another language, the application shall be accompanied by their translation
into Russian.
15.
The
Application shall contain data: - on the applicant; - on the intellectual
property object; - on suspected counterfeit goods; - on estimated duration of
measures to suspend release of suspected counterfeit goods.
16.
For
the purpose of the present Regulation, the data on the applicant shall include
full official name of the legal entity with an indication of its
organisational-legal form (in accordance with the foundation documents of the
legal entity) or family name, first name and patronymic (if any) of the natural
person. For Russian legal entities, the following information shall be
presented:
o
location;
o
postal
address;
o
telephone,
fax and telex numbers, e-mail address and other data necessary for the customs
authorities to notify of suspension of the release of goods;
o
data
on state registration;
o
data
on registration of the entity with the tax body as a taxpayer and taxpayer’s
identification number (INN).
For Russian
natural persons, the information shall also include identification for the
citizen of the Russian Federation, the document’s number, date of issue, the
issuing authority, date and place of birth of the person, registered place of
residence, postal address and INN (if any).
17.
Where
the applicant is the representative of the rightholder, the data on the
rightholder shall also be provided, as stipulated in Item
18.
Where
the rightholder is a foreign organisation, the Application shall specify:
o
full
and short name and organisational-legal form thereof in Russian and foreign
language versions (in Latin transcription);
o
full
address of the foreign organisation in the country of registration in Russian
and foreign language versions (in Latin transcription);
o
data
on registration on the basis of the trade register data or certificate of
incorporation, or any other document of similar nature of the corresponding
country of origin containing information on the agency which registered the
foreign legal entity, registration number, date and place of registration.
Where the
rightholder is a foreign natural person, full name and place of residence
thereof shall be specified.
19.
The
Application shall include the following data on intellectual property objects:
o
19.1.
In respect of objects of copyright:
§
form
of work (written work, audio- or video record, an image, three-dimensional
work, etc.);
§
type
of work (literature, computer program, music, audiovisual, painting, sculpture,
graphics, design, photography, etc.);
§
name
of each specified object;
§
description
of each specified object;
§
data
on documents certifying the rights of the applicant to the goods in question;
§
data
on contracts on transfer of rights;
§
data
on documents proving introduction of goods containing objects of copyright into
civil circulation on the territory of the Russian Federation by the rightholder
or with his consent.;
o
19.2.
In respect of objects of related rights:
§
form
of work (audio- or video record, etc.);
§
type
of work (computer programs, musical works, audiovisual works, etc.);
§
name
of each specified object;
§
description
of each specified object;
§
data
on documents certifying the rights of the applicant to the goods in question;
§
data
on contracts on transfer of rights;
§
data
on documents proving introduction of goods containing objects of related rights
into civil circulation on the territory of the Russian Federation by the rightholder
or with his consent.;
o
19.3.
In respect of trademarks and service marks:
§
name
(indication or image) of trademarks (service marks);
§
description
of trademarks (service marks);
§
list
of goods and services to which a trademark or a service mark is applied with an
indication of classes thereof in accordance with the International
Classification of Goods and Services (ICGS);
§
data
on documents proving registration of trademarks (service marks) in compliance
with the laws of the Russian Federation and international treaties to which it
is a party;
§
data
on assignment contracts in instances where exclusive rights have been acquired
under a contract of trademark assignment;
§
data
on license (sub-license) contracts and licensees (sub-licensees);
§
data
on documents confirming introduction of goods to which trademarks are applied
into civil circulation on the territory of the Russian Federation by the
rightholder or with his consent;
o
19.4.
In respect of appellations of origin:
§
place
of origin of the product;
§
list
of goods and services to which appellation of origin is applied with an
indication of their classes according to the International Classification of
Goods and Services (ICGS);
§
data
on documents proving registration and granting of the right of use of the
appellation of origin under laws of the Russian Federation and international
treaties of the Russian Federation;
§
data
on documents confirming introduction of goods containing appellations of origin
into civil circulation on the territory of the Russian Federation by the
rightholder or with his consent;
20.
Data
on suspected counterfeit goods, in respect of every object of intellectual
property specified in the Application, shall include detailed information on
goods in order to facilitate detection thereof by the customs authorities
(description of the appearance thereof (packaging, label, etc.), indication of
authorised importers having consent of the rightholder to introduce the goods
into civil circulation, of exporters, producers, etc.), including codes of the
goods starting from not less than the first four signs in accordance with the
Commodity Nomenclature of Foreign Economic Activity of the Russian Federation
(CN FEA of Russia), as well as on probable points of importation into the
customs territory of the Russian Federation (exportation from the customs
territory of the Russian Federation) and on the importers of goods, should such
information be available.
21.
Data
on the expected duration of measures connected with the suspension or release
of goods shall be the period of time during which, in the opinion of the
applicant, protection by the customs authorities of the intellectual property
objects stated in the Application by taking measures to suspend release of
suspected counterfeit goods will be required. The period of time set forth in
the Application shall not exceed the duration of legal protection of the
intellectual property object.
22.
Data
stipulated in Items 16 - 20 of the present Regulation can be presented in the
form of separate annexes to the Application, in which case the Application
shall contain an indication of the number of annexes thereto, titles thereof
and the number of pages in each annex. The data can be prepared in the form of
notarised copies of documents (guarantee letters, warranties, affidavits,
comparison tables, colour photographs, etc.) proving the above data. In this
instance the Application shall include a reference to such documents, while the
documents shall attached as Annexes to the Application.
23.
The
Application shall be accompanied by documents certifying the right to the
objects of intellectual property specified in the Application.
24.
Documents
certifying the right to the objects of intellectual property specified in the
Application may include, without limitation, documents proving presented data
on the rightholder, and, depending on the type of intellectual property object:
o
24.1.
In respect of objects of copyright:
§
certificate
of depositing copies or a certificate of official registration of computer
programmes and databases;
§
notarised
acknowledgment of facts;
§
a
sample of manufactured and issued copies of the work on the territory of the
state;
§
labour
contract (civil contract) in respect of work produced within the scope of
employment;
§
a
document confirming the transfer of copyright;
§
exclusive
(non-exclusive) copyright transfer agreement;
§
written
or material evidence (manuscripts, music notation, images, schemes, reviews,
recorded data on the manuscript movement, etc.);
§
reports
by experts, organisations or associations exercising copyright management or
professionally dealing with copyright protection;
o
24.2.
In respect of objects of related rights:
§
a
document on depositing copies;
§
notarised
acknowledgment of facts;
§
contracts
with performers, studios, producers of phonograms and other rightholders;
§
labour
contract (civil contract) in respect of work produced within the scope of
employment;
§
contracts
on the transfer of rights;
§
documents
certifying authorisation to use phonograms;
§
samples
of phonograms;
§
reports
by experts, organisations or associations exercising professional protection of
related rights;
o
24.3.
In respect of trademarks and service marks:
§
trademark
(service mark) certificate ;
§
extract
from the State Register of Trademarks and Service Marks of the Russian
Federation;
§
extract
from the List of Well-Known Trademarks in the Russian Federation;
§
contract
on trademark assignment;
§
license
agreements on the use of trademark;
§
sub-license
agreements on the use of trademark;
§
documents
proving the introduction of goods to which trademarks are applied into civil
circulation on the territory of the Russian Federation by the rightholder in
person or with his consent;
o
24.4.
In respect of appellations of origin:
§
certificate
attesting the right to use the appellation of origin of a product;
§
extract
from the State Register of Appellations of Origin of Goods of the Russian
Federation.
25.
Where
the Application is filed on behalf of the rightholder, apart from documents
proving presented data on the rightholder, it shall be accompanied by documents
proving presented data on the representative, as well as by a power of attorney
issued to such representative by the rightholder.
26.
In
compliance with Paragraph 4, Article 394 of the Code, the Application shall be
accompanied by a written obligation issued by the rightholder to compensate for
property damage which might be caused to the declarant, owner, recipient of
goods or a person specified in Article 16 of the Code as a result of the
suspension of release of goods in the event that the procedure initiated
pursuant to the laws of the Russian Federation does not determine that the
goods, in respect of which the decision to suspend release (including the
release of their packaging and label) has been adopted, are counterfeit
(hereinafter referred to the “obligation”).
Where there is a duly executed power of attorney giving authority to represent
the interests of the rightholder in the customs authorities of the Russian
Federation or any other document (license or copyright agreement, commercial
representation agreement, etc.) delegating such powers, the obligation may be
issued by the applicant.
27.
Attached
to the Application shall be a document confirming proper execution of the
obligation stipulated in Item 25 of the present Regulation, or a contract of
insurance against the risk of liability for causing harm in favour of persons
specified in paragraph 4, Article 394 of the Code.
28.
Documents
can be presented by the applicant in the form of originals or copies attested
in compliance with the established procedure. When copies attested by the
applicant are presented, originals of such documents can be requested, subject
to subsequent return to the applicant after verification of the compliance of
the copies of the documents with the originals thereof. Extracts from the
registers (lists) specified in Item 23 of the present Regulation shall be
issued as of a date not earlier than one month prior to the date of filing the
Application.
29.
The
applicant may attach to the Application samples of suspected counterfeit goods,
as well as samples of authentic goods for the purpose of comparison thereof and
detection of differences.
30.
The
applicant shall notify the SCC of Russia in writing within five working days of
any changes in the data presented in the Application or submitted documents
during the time of processing of the Application.
31.
The
Application shall be subject to consideration by the Main Department of Tariff
and Non-Tariff Regulation of the SCC of Russia (MDTNR) on behalf of the SCC of
Russia.
32.
Only
Applications duly prepared and filed in compliance with the present Regulation
shall be accepted. Under Paragraph 5, Article 394 of the Code, the Application
shall be considered within one month from receipt thereof.
33.
Documents
submitted to the SCC of Russia after the Application has been filed
(hereinafter referred to as the “materials”) shall include the number of the
Application and the date of filing thereof and shall be signed by the
applicant. Materials without the number of the Application and the date of
filing thereof shall be returned without consideration in the event the date
and number cannot be determined.
34.
Materials
can be communicated by facsimile transmission provided the originals are
submitted within fifteen days from the date of receipt thereof by facsimile
transmission together with a cover letter identifying the materials received by
facsimile transmission. Provided this requirement is met, the date of receipt
of materials shall be the date of receipt thereof by facsimile transmission.
Where materials are received after the expiry of the specified period of time
or are not identical to the materials received by facsimile transmission, such
materials shall be deemed received as of the date of receipt of originals thereof,
and the content of materials received by facsimile transmission shall not be
taken into consideration subsequently.
Materials communicated by facsimile transmission shall be considered received
upon receipt of the originals thereof. In the event that materials communicated
by facsimile transmission or a part thereof are not legible or are not
received, the corresponding materials or part thereof shall be considered
received on date of receipt of the originals thereof.
35.
The
Application without attached obligation stipulated in Item 25 of the present
Regulation and a power of attorney in the instance provided for under Item 24
shall not be considered.
36.
Before
the decision is made, verification shall be made of presented data and attached
documents and of compliance thereof with the requirements established by laws
of the Russian Federation. Presented data and documents shall be considered
accurate until proven otherwise.
37.
In
the event that necessary data or documents are not provided or there are sufficient
grounds to question the accuracy of documents or data presented by the
applicant, such documents and data or confirmation of accuracy thereof may be
requested from the applicant or, where the applicant is his representative of
the rightholder, directly from the rightholder. In the event that the applicant
fails to reply to the request to submit necessary documents and data or proof
of their accuracy within one month from the date of receipt of such request and
does not submit an appeal for extensions of the term of executing the request,
the Application shall be declared withdrawn and shall not be subject to
subsequent consideration and a corresponding notification thereof shall be
communicated to the applicant.
38.
For
the purpose of verification of the data presented by the applicant during
processing of the application, a third party or state authorities of the Main
Department of Tariff and Non-tariff Regulation can be requested to provide
documents proving data presented in the Application. Requested documents can be
communicated by facsimile transmission, provided that the requirements set
forth in Item 33 of the present Regulation are met.
39.
In
the event a request for documents and data is sent, the term for processing the
Application can be extended but not more than to two months.
40.
The
decision to take measures to suspend the release of goods or to reject the
application for action shall be made by the head of the MDTNR or, in the event
of absence thereof, by his deputy. Where the requested documents provided for
in Item 37 of the present Regulation are not received, the decision on the
Application under consideration shall be taken in accordance with paragraph 2,
Item 35 of the present Regulation.
41.
Should
a decision in favour be adopted, the duration of protection of intellectual
property object shall be determined depending on the validity term of presented
documents, which are the basis for adopting the decision. The above term cannot
exceed five years from the date intellectual property objects are entered in
the customs register of intellectual property objects. The above term can be
extended on the basis of an application filed in writing not less than two
months prior to the expiry of the previous term, provided that the requirements
stipulated in Article 394 and Paragraph 2, Article 395 of the Code and the
present chapter are complied with.
42.
There
must be grounds for a decision to reject an application for action to suspend
the release of goods.
43.
The
applicant shall be notified of the adopted decision in writing within three
days after the adoption.
44.
Within
five days from the receipt of notification of a positive decision the applicant
shall submit a document securing the performance of the obligation specified in
Item 25 of the present Regulation, or a contract of insurance against the risk
of liability for damage in favour of the persons specified in paragraph 4,
Article 394 of the Code, unless presented earlier.
45.
The
applicant shall notify the SCC of Russia in writing of any changes in the data
indicated in the Application or in the documents attached thereto after the
adoption of a decision in favour on the next day after such changes have
occurred.
III. Customs Register of Intellectual
Property Objects
45.
With
regard to Article 395 of the Code, an intellectual property object shall be
entered into the customs register of intellectual property objects (hereinafter
referred to as the Register) within three days after the adoption of a positive
decision or the receipt of the document specified in Item 43 of the present
Regulation, depending on which of the foregoing shall occur later. The fee for
entry into the Register shall not be charged.
46.
The
Register shall be maintained by a specialised subdivision of the MDTNR
electronically and in hard copy format in the form of a log book. The pages of
the log book shall be numerated and signed by the head or deputy head of the
MDTNR. Any amendments and changes thereto shall be signed by an authorised
MDTNR official.
47.
The
following data shall be entered into the Register:
o
registration
number according to the Register;
o
name
(description, image) of the intellectual property object;
o
data
on the rightholder (name of the organisation with an indication of its
organisational-legal form or family name, first name and patronymic of a
natural person, place of residence and postal address thereof);
o
name,
number and data of the document certifying legal protection of the object by
intellectual property rights (in the instances provided by laws of the Russian
Federation);
o
the
term during which the object of intellectual property shall be recorded in the
Register;
o
list
of goods in respect of which measures are being taken (the name, the class
according to the International Classification of Goods and Services and the
code under the CN FEA of Russia);
o
data
on persons representing the interests of the owner of the intellectual property
object by virtue of power of attorney (name of the organisation with an
indication of organisational-legal form thereof or the family name, first name
and patronymic of a natural person, place of residence, postal address, number
of telephones, faxes, telex and electronic mail address thereof, etc.);
o
number
and date of the letter from the MDTNR on the intellectual property object
entered into the Register addressed to the customs authorities in compliance
with Item 51 of the present Regulation.
48.
Registration
number of an intellectual property object shall be indicated in the following
way:
o
00000/ZZZZZ-AAA/XX-DDMMYY,
where:
§
00000
means a five-digit number of record assigned to the intellectual property
object in increasing order, regardless of the type thereof;
§
ZZZZZ
means decision number in increasing order;
§
ААА
means ordinal number of the intellectual property object in one decision
category;
§
XX
means the type of intellectual property object:
§
AP
means the object of copyright;
§
SP
means the object of related rights;
§
TZ
means trademark (service mark);
§
NP
means appellation of origin of goods;
§
DDMMYY
–means day, month and two last digits of the year when the object of
intellectual property was included into the Register.
49.
Intellectual
property objects are subject to removal from the Register at the request of the
applicant, as well as upon expiry of legal protection of the object by
intellectual property rights, or in the instance when inaccuracy of presented
data is revealed, or the requirement to provide security for performing the
obligation specified in Item 25 of the present Regulation or a contract of
insurance against the risk of liability for causing harm in favour of the
persons specified in paragraph 4, Article 394 of the Code is not complied with,
or if the rightholder or his representative, upon the receipt of the
notification (notice) did not appeal to the body authorised in accordance with
laws of the Russian Federation for protection of his rights within the period
of suspension of release of goods. Removal from the Register shall be effected
upon decision made in writing by the head (deputy head) of the MDTNR, provided
that there are grounds specified in the present Item. A notification of the
removal from the Register specifying the grounds for such action shall be
communicated to the applicant within three business days from the date of the
adoption of such decision.
50.
Amendments
and/or addenda into the Register can be introduced on the basis of information
presented by:
o
the
applicant on changes in the data indicated in the Application, documents
attached thereto or other materials;
o
law-enforcement
agencies or other state authorities and organisations to the effect that the
rights of persons entered into the Register as rightholders to the intellectual
property object have terminated or have been limited.
Amendments
and/or additions into the Register shall be introduced on the basis of the
decision of the head (deputy head) of the MDTNR, of which the applicant and
customs authorities shall be notified in writing within three days from the
adoption thereof. Amendments into the Register may be introduced after
verification of the presented information on the basis of the decision made by
the head (deputy head) of the MDTNR. The term during which an object of
intellectual property shall be recorded in the Register can be suspended for
the period of time necessary for verification, of which the applicant and
customs authorities shall be notified by the end of the next business day.
Measures to suspend the release of goods shall be taken within the time limit
set in Item 40 of the present Regulation.
51.
Information
on intellectual property objects included into the Register and data necessary
for taking measures to suspend the release of goods, as well as information on
the removal of an intellectual property object form the Register or changes in
the data necessary for taking measures to suspend the release of goods shall be
forwarded by the MDTNR to the customs authorities within one business day
following the date of entry (removal) of an intellectual property object
into/from the Register or the occurrence of changes.
52.
The
Press-Service of the SCC of Russia shall carry out publication of the list of
intellectual property objects included into the Register in official editions
of the SCC of Russia. Certain data can be published on the Internet-site of the
SCC of Russia.
IV. Measures to Be Taken by Customs
Authorities When Detecting Suspected Counterfeit Goods.
53.
Goods
containing objects of intellectual property and carried across the customs
border shall be subject to customs processing and control in the procedure
established by the customs laws of the Russian Federation. In accordance with
Paragraph 2, Article 125 of the Code, for the purpose of ensuring effective
control over the observance of the customs laws of the Russian Federation, the
SCC of Russia shall be empowered to assign special customs authorities for
declaring goods should it be necessary to exercise special control over certain
goods containing objects of intellectual property in accordance with the list
established by the Government of the Russian Federation.
54.
Goods
containing objects of intellectual property entered into the Register shall be
declared separately from other goods by filing either a separate cargo customs
declaration (CCD) or an additional sheet to the main CCD. In compliance with
the customs laws of the Russian Federation the SCC of Russia shall be empowered
to determine special requirements for declaring goods containing certain types
of intellectual property objects.
55.
In
the event that a customs official, when checking the CCD and documents attached
thereto and/or in the course of customs examination, detects suspected
counterfeit goods, the release of such goods shall be suspended for ten
business days.
56.
Goods
in respect of which the decision on release suspension has been made shall
acquire (maintain) the status of goods in temporary storage.
57.
Decision
to suspend the release of goods shall be made by the head of the customs body
or substitute thereof and shall take the form of a resolution on the report
specifying reasoned substantiation of suspension of the release of goods and
prepared by a customs official body immediately after detecting the signs of
counterfeit goods. The decision shall be adopted by the end of the day on which
the report is prepared. The period of validity of the decision to suspend
release of goods shall commence on the next business day following the date of
its adoption.
58.
The
CCD or the additional sheet thereto in respect of goods under suspension
procedure shall bear the stamp “Release is Suspended”, with an indication of
the date on which the decision was adopted, attested with the signature and the
imprint of the personal numbered seal of the customs official responsible for
the release of goods.
The release of remaining goods, in the event they are declared in one SCC,
shall be carried out in compliance with the customs laws of the Russian
Federation regardless of the decision on release suspension adopted in respect
of suspected counterfeit goods. The main sheet of the SCC shall be attested by
a standard stamp certifying the release of goods with a note “Except for
additional sheet No.___”.
59.
Notification
of the suspension of the release of goods shall be delivered to the declarant
and the rightholder (his representative) within the next day following the
adoption of the decision on suspension.
60.
The
notification shall contain the following data:
o
60.1.
For the declarant:
§
description
of goods in respect of which the decision to suspend release was adopted, with
an indication of documents related to the goods, sufficient for identification
thereof, with an indication of the object of intellectual property included
into the Register, in respect of which goods are suspected of being
counterfeit;
§
revealed
signs of infringement;
§
the
term of suspension of release of goods and the date of adopting corresponding
decision;
§
name
(family name, first name and patronymic) and address of the rightholder (his
representative);
o
60.2.
For the rightholder (representative of the rightholder):
§
name
of the customs body which adopted the decision on suspension of the release of
goods, postal address, numbers of telephones, faxes and telex and electronic
mail address thereof, etc;
§
name
(family name, first name and patronymic) and address of the declarant of goods;
§
location
of the goods under suspension procedure, with an indication of the address;
§
description
of the goods in respect of which it was decided to suspend the release, with an
indication of the intellectual property object included into the Register in
respect of which goods are suspected of being counterfeit;
§
revealed
signs of counterfeit goods;
§
the
term of suspension of release of goods and the date of adopting corresponding
decision;
61.
In
the event that personal delivery of notifications is not possible, such
notifications shall be communicated by a registered letter, by courier service
or by any other means of communication allowing for prompt notification of the
rightholder (his representative) and the declarant and for recording the date
of receipt by them of the notification, in which case copies of notifications
kept by the customs body shall be accompanied by documents confirming that the
notifications have been sent by mail or by any other means of communications to
the declarant and the rightholder (his representative).
62.
Given
the permission of the customs body in writing, the rightholder and the
declarant (their representatives) may take, under customs control, tests,
samples and specimen of the goods suspended from release, to conduct
investigations, as well as to examine, photograph or otherwise fix such goods.
63.
At
the request of the rightholder (his representative) the customs body may
provide additional information which might be necessary for the rightholder to
prove the infringement of his rights (information on the manufacturer, sender,
quantity, etc.), save for the instances provided by the federal laws.
Information obtained by the rightholder (his representative) or declarant shall
be confidential and shall not be subject to disclosure or transfer to a third
party or state authorities, save for the instances provided by the federal
laws.
64.
Where
the rightholder applies for protection of his rights and/or by judicial bodies
or any other bodies authorised by the laws of the Russian Federation to
initiate administrative and/or criminal proceedings, the rightholder (his
representative) shall be entitled to submit to the customs body, prior the
expiry of the term of suspension of the release of goods, a written statement
of motivation to extend the duration of suspension of the release of goods with
an indication of the term of such extension.
65.
The
decision to extend the term of suspension of the release of goods shall be
adopted by the head of the customs body or substitute thereof and shall take
the form of resolution “To extend to___” made on the appeal of the rightholder
(his representative), with an indication of the date of the expiry of the
extended term determined on the basis of the term specified in the appeal.
The extension term of the suspension of release of goods shall not exceed 10
business days. In this instance, on the place of the stamp “Release is
suspended” the SCC shall make a note “extended to___” with an indication of the
date to which the term of the decision on suspension of the release of goods is
extended.
66.
Where
the customs body does not receive (adopt) the decision to seize, arrest or
confiscate the goods prior to the expiry of the term of suspension of the
release of goods, the decision on suspension of the release of goods shall be
cancelled on the day following the date of expiry of the period of time for
which the release of goods was suspended.
67.
The
decision to suspend the release of goods shall be subject to reversal prior to
the expiry of the suspension of release in the instances when: 1) the
rightholder (his representative) addressed a customs body with a request to
cancel the decision to suspend the release of goods; 2) intellectual property
object is removed from the Register. The decision to suspend the release of
goods is subject to reversal on the date when the above grounds become known.
68.
Reversal
of the decision on suspension of the release of goods shall be effected by the
head of the customs body who adopted such decision or by substitute thereof and
shall take the form of the resolution on the corresponding request of the
rightholder (his representative) or on the report by an authorised customs
official, prepared on the day following the expiry of the term of suspension of
the release of goods in the instance provided by Item 66 of the present.
Regulation or on the day when the removal of the intellectual property object
from the Register became known. After the decision is reversed, the release of
goods shall be carried out in the procedure established by the customs laws of
the Russian Federation.
After the decision on suspension of the release of goods declared on the
additional sheet is cancelled, there shall be made a note indicating the date
of release of such goods on the main sheet of the CCD below the note provided
for by part 2, Item 58 of the present Regulation.
69.
Where
the goods are not confiscated or destructed after the seizure or arrest thereof
in compliance with the civil laws and laws on criminal and administrative
offences, the circulation of such goods on the territory of the Russian Federation
shall be allowed after the release thereof by the customs authorities in
compliance with the customs laws of the Russian Federation.
70.
Within
three days after the adoption of the decision to cancel suspension of the
release or the adoption by authorised bodies of a decision to seize, arrest or
confiscate goods, the customs body shall forward to the superior customs body
the information related to the adopted decision on suspension of the release of
suspected counterfeit goods, with an indication of the intellectual property
object included into the Register; CCD numbers, items of suspected infringing
goods; the date of notifying the rightholder (his representative), data on his
act or omission; grounds for and date of adopting the decision to cancel
suspension of the release; numbers and dates of adopted decisions to seize,
arrest or confiscate goods with an indication of the body adopting such
decision.
Regional customs divisions (RCD) shall submit to the MDTNR, within five working
days of receipt of information from subordinate bodies, general information on
the region of activity. Subdivisions of customs and RCD, whose sphere of
competence includes issues related to the protection of intellectual property,
shall prepare files on intellectual property objects included into the Register
grouped according to rightholders.
The files shall reflect all facts in the region of activity, which occurred
within the period of time during which intellectual property objects are
recorded in the Register, related to the movement of goods containing
intellectual property objects (including suspected counterfeit goods). RCD
shall forward the information contained in the file to the MDTNR not later than
two months prior to the expiry of the term during which the object of
intellectual property shall be recorded in the Register.
V. Final Provisions
71.
Pursuant
to Article 400 of the Code, measures to suspend release of goods under the
present Regulation shall not be applied by the customs authorities to goods
containing objects of intellectual property and transferred across the customs
border by natural persons or carried via international mail in insignificant
amounts, where such goods are intended for private, family or household use or
for the purposes other than commercial use.
Under Paragraph 2, Article 281 of the Code, the purpose of use of the goods
shall be determined by a customs body on the basis of the declaration of the
natural person in respect of goods transferred across the customs border, the
nature of goods and their quantity, as well as frequency of carriage of such
goods across the customs border.
72.
In
the event that customs authorities reveal signs of administrative offences
(crimes), legal proceedings in respect of which are in the competence of other
state authorities, the customs authorities shall, without delay, in compliance
with Article 411 of the Code submit in the established procedure the
information on the above to the corresponding state authorities.
73.
As
provided by Paragraph 3, Article 397 of the Code, the rightholder shall be
liable under the civil laws of the Russian Federation for damages caused to the
declarant, owner or consignee of goods or the person specified in Article 16 of
the Code, resulting from suspension of the release of goods carried out in
compliance with the present Regulation, unless it is determined in the
procedure established by the laws of the Russian Federation that such goods
(including their packaging and label) are counterfeit.
Damages resulting from lawful action of the customs authorities and their
officials shall not be subject to compensation under Article 413 of the Code,
unless otherwise provided by the Code or other federal laws.
74.
In
compliance with Article 413 of the Code, customs officials shall incur disciplinary,
administrative, criminal and other liability under the laws of the Russian
Federation for wrongful decisions, act or omission.
On-line version available at: http://www.customs.ru/en/fbusiness/ENGCustomsrelatedissues/?id695=2959&i695=1
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