S P O O R & F I S H E R EFFECTIVE ENFORCEMENT AT THE BORDER by Mohamed Khader SPOOR & FISHER November 2005

EFFECTIVE ENFORCEMENT AT THE BORDER 1. Section 15 of the Counterfeit Goods Act 2.Enforcement by the South African Border Police 3.Co-operation 4.Training on the law and product identification 5.Questions Contents

EFFECTIVE ENFORCEMENT AT THE BORDER Section 15 of the Counterfeit Goods Act Suitable legislation IP rights owner files application with the Commissioner for the South African Revenue Service Request that suspected counterfeit goods are detained If application is accepted, suspected counterfeit goods will be stopped by Customs and the IP Rights owner will have the opportunity to confirm whether or not the goods are “counterfeit good”

EFFECTIVE ENFORCEMENT AT THE BORDER Section 15 of the Counterfeit Goods Act In practice, when suspected counterfeit goods are detected by Customs, these goods are “detained” in terms of Section 113A of the Customs and Excise Act, 91 of 1964 Customs will immediately notify the IP rights owner or its authorised representatives (usually its local attorneys) of the detection and interception Arrangements will be made for a sample of the suspected counterfeit product will be collected from Customs for purposes of examination An affidavit confirming the counterfeit nature of the offending goods must be filed with Customs within 5 days of notification of the detention

EFFECTIVE ENFORCEMENT AT THE BORDER Section 15 of the Counterfeit Goods Act Customs will then obtain a search and seizure warrant in terms of the provisions of the CGA and seize the offending goods A notice in terms of Section 7(1)(d) of the CGA will then be issued and the IP rights owner will only then be furnished with details of the importer of these goods The IP rights owner must then ensure compliance in terms of the provisions of Sections 7 and 9 of the CGA

EFFECTIVE ENFORCEMENT AT THE BORDER Enforcement by the Border Police Have proven to be extremely effective, especially at Durban Harbour Detection of goods and hand over to the Commercial Branch of the South African Police Service IP rights owner will be informed of the detection and must file an affidavit confirming the counterfeit nature of the offending goods A search and seizure warrant will be obtained and executed. A notice in terms of Section 7(1)(d) of the CGA will be issued and the IP rights owner must ensure compliance with the provisions of Sections 7 and 9 of the CGA

EFFECTIVE ENFORCEMENT AT THE BORDER Enforcement by the Border Police Have proven to be extremely effective, especially at Durban Harbour Detection of goods and hand over to the Commercial Branch of the South African Police Service IP rights owner will be informed of the detection and must file an affidavit confirming the counterfeit nature of the offending goods A search and seizure warrant will be obtained and executed. A notice in terms of Section 7(1)(d) of the CGA will be issued and the IP rights owner must ensure compliance with the provisions of Sections 7 and 9 of the CGA

EFFECTIVE ENFORCEMENT AT THE BORDER Enforcement by the Border Police The Border Police has also been successful in detecting consignments that are in transit to other territories Goods in transit fall outside the ambit of the CGA Immediately contact enforcement agencies in the territories concerned to stop goods at the border of that territory Recent successes with counterfeit BIC pens and counterfeit LEVI’S jeans detected at Durban Harbour and eventually stopped by Customs in Mozambique

EFFECTIVE ENFORCEMENT AT THE BORDER Co-operation Public Private Partnership A degree of co-operation must exist between the enforcement agencies of the various territories; and with the IP rights owners is Co-operation is vital for cross border enforcement

EFFECTIVE ENFORCEMENT AT THE BORDER Training Without training (both on the law and brand identification) it is difficult, if not impossible for Customs and/or police officials to identify goods to be suspected counterfeit detect Success in South Africa has been largely due to training initiatives by IP rights owners Training should be conducted on an on-going basis

EFFECTIVE ENFORCEMENT AT THE BORDER Questions QUESTIONS?