Geography Reference
In-Depth Information
2.152
As a footnote to this provision, the term 'counterfeit trademark goods' is defined
to mean:
any goods, including packaging, bearing without authorization a trademark which is
identical to the trademark validly registered in respect of such goods, or which cannot
be distinguished in its essential aspects from such a trademark, and which thereby
infringes the rights of the owner of the trademark in question under the law of the
country of importation.
The term 'pirated copyright goods' is defined to mean:
any goods which are copies made without consent of the rights holder in the country of
production and which are made directly or indirectly from any article where the making
of that copy would have constituted an infringement of a copyright or a related right
under the law of the country of importation.
In addition to the suspension of release of goods involving a suspected counter-
feit trade mark, or which are pirated copyright goods, Art 51 also provides that
an application for suspension may also be made in respect of other intellectual
property rights infringements, such as carrying ornamentation which infringes
a registered design or involving production in breach of a patented process.
2.153
The Article also provides that the procedures for the suspension of imported
goods also apply to the 'release of infringing goods destined for exportation
from their territories'. On its wording this provision could permit the seizure of
goods originating within the country served by the customs authority, as well as
good which are in transit, having originated in another country. As a matter of
practice, the customs authorities are not particularly well suited to dealing with
goods which are being shipped from the hinterland as the perspective of the
customs authorities tends to be outward facing. However, there is no reason
why they cannot scrutinise goods passing in both directions.
2.154
The Article does not apply to a Member of the WTO which 'has dismantled
substantially all controls over movement of goods across its border with another
Member with which it forms part of a customs union'. For example, the EU
provides in its statutes for the free movement of goods between Member
countries.
2.155
(iii) Goods in transit
Footnote 13 to Art 51 of the TRIPS Agreement provides that WTO Members
have no obligations to apply border measures to goods which are 'in transit'.
Within the EU, customs control of goods in transit has been urged because
once goods are in transit through the territory of the EU it has been very easy to
2.156
