Customs Pointed Out Difficulties In Suspending The Release Of Goods In Transit.　No Relevant Laws Are Provided To Regulate Goods in Transit As Facilitated by the US Cigarette Manufacturers.

  International Trademark Association (INTA) held a conference on “Border Control Measures For Intellectual Property Rights”.  Representatives from Taiwan Intellectual Property Office under the Ministry of Economic Affairs and the Directorate General of Customs under the Ministry of Finance were also invited to explain about the issues on Taiwan’s border control measures for IPRs.

  In regard to the US cigarette manufacturers’ expect for suspending the release of counterfeit cigarettes in transit by Taiwan government, a trademark right holder, according to Article 65 of the Taiwan Trademark Law, may request the customs authority to suspend the release of imported or exported goods that are suspected of infringing the trademark rights of the said right holder.  Also, Article 104 of the Taiwan Copyright Law stipulates that a copyright holder may request suspension of release of the imported/exported counterfeits with the customs authority after providing a security bond.  However, there have no relevant laws in Taiwan that regulate the circumstances in which the goods in transit involve counterfeits.

  In practice, the customs’ border control measures are most applicable to the counterfeits bearing another’s registered trademark for IPR protection for the time being. According to the “Operational Directions for Customs Authorities in Implementing Measures for Protecting the Rights and Interests of Patent, Trademark and Copyright”, what the customs authority exercises for trademark and copyright protection is “complaint-based protection”, while the customs authority may suspend the release when sighting from the appearance of imported/exported goods that there is an infringement of trademark or copyright in the execution of duties.  Half of the goods that bear another’s registered trademark are suspended for release by the customs authority.  As for the goods suspected of patent infringement and counterfeits in transit, since it is difficult to determine the existence of infringement, the customs authority will not rashly suspend release of any suspect goods unless there is exact or clear information revealing the infringement, so as not to hider the going of the clearance procedures.

  Further, pursuant to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), WTO members may formulate legal procedures to entitle any right holder to request the competent authority, with justifiable reasons, to suspend release of the imported/exported goods that are suspected of trademark or copyright infringement.  However, WTO members are not obligated to suspend the release of goods in transit. (2006.10)

/CCS