- The Union Ministry of Finance has amended Intellectual Property rules to revoke the power vested with Customs authorities to seize imported products based on complaints of patent infringement.
- The Customs Act, 1962 prohibits import of those goods that infringed intellectual property.
- Under its Section 11, the Central Government can prohibit import or export of goods that infringed patents, trademarks or copyrights, by issuing a notification.
- Further, Section 111 and 113 of the same Act empowered the Customs to confiscate such imported and exported goods, respectively.
- On May 8, 2007, the Central Government issued Notification, that prohibited the import of the following goods, subject to conditions and procedures:
- Goods having applied thereto a false trade mark as specified in section 102 of the Trade Marks Act, 1999 (Trade Mark conflicting with a geographical indication).
- Goods having applied thereto a false trade description within the meaning of clause (i) of sub-section (1) of section 2 of the Trade Marks Act, 1999;
- Goods made or produced beyond the limits of India and intended for sale, and having applied thereto a design in which copyright exists under the Designs Act, 2000;
- The product made or produced beyond the limits of India and intended for sale for which a patent is in force under the Patents Act,1970;
- The product obtained directly by the process made or produced beyond the limits of India and intended for sale, where patent for such process is in force under the Patents Act 1970;
- Goods having applied thereto a false Geographical Indication within the meaning of section 38 of Geographical Indications of Goods (Registration and Protection) Act, 1999;
- Goods which are prohibited to be imported by issuance of an order issued by Registrar of Copyrights under section 53 of the Copyright Act,1957. (Importation of infringing copies).
- The Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 was introduced with an object to prohibit import of goods infringing intellectual property rights of the right holders under The Copyright Act, 1957, the Trade Marks Act, 1999, the Patents Act, 1970, the Designs Act, 2000 and the Geographical Indications of Goods (Registration and Protection) Act, 1999.
- These Rules have been formed based on the line of TRIPS (Trade-Related Aspects of Intellectual Property Rights) and WCO (World Customs Organization).
- Now, these rules are amended to omit all the references to the Patents Act, 1970.
- The Ministry of Finance has made the following rules to amend the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007.
- These rules may be called the Intellectual Property Rights (Imported Goods) Enforcement Amendment Rules, 2018.
- Firstly, the Intellectual Property Rights (Imported Goods) Enforcement Amendment Rules, 2018, omits all reference to the Patents Act, 1970.
- Secondly, the amendment also inserts two conditions for registration namely,
- The right holder or his authorised representative shall inform the Commissioner of Customs at the time of giving notice about any amendment, cancellation, suspension, or revocation of the Intellectual Property Right by the authorities under the Intellectual Property Laws or any Court of Law or Appellate Board
- In the event of any amendment, cancellation, suspension or revocation of the Intellectual Property Right by the authorities under the Intellectual Property Law or by any Court of Law or Appellate Board, the Commissioner of Customs may accordingly amend, suspend or cancel the notice and the corresponding protection.”
Need of the amendment
- In the past, mobile phone companies have faced issues because of the earlier rules. For instance, in 2007, Madurai-based Ramkumar, who held a patent for a dual SIM, sought seizure of products imported by Samsung and Spice Mobile, which affected several importers.
- Now, the amended law will permit the Customs authorities to cancel his patent from its records based on the order passed by the Intellectual Property Appellate Board (IPAB),
About Intellectual property
- Intellectual property (IP) is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized in the corresponding fields of law.
- Under IP law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs.
- Common types of intellectual property include:
- Copyrights: A copyright gives the creator of an original work exclusive rights to it, usually for a limited time. Copyright may apply to a wide range of creative, intellectual, or artistic forms, or “works”.
- Trademarks: A trademark is a recognizable sign, design or expression which distinguishes products or services of a particular trader from the similar products or services of other traders.
- Patents: A patent is a form of right granted by the government to an inventor, giving the owner the right to exclude others from making, using, selling, offering to sell, and importing an invention for a limited period of time, in exchange for the public disclosure of the invention.
- Industrial design rights: An industrial design right (sometimes called “design right”) protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value.
- Trade secrets: A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers.