PROTECION OF INTELLECTUAL PROPERTY RIGHTS BY THE CUSTOMS AUTHORITY
The ground for protection of intellectual property rights by the customs authority
Article 340. Protection of intellectual property rights by the customs authority
The customs authorities enforces the rights of the holders of copyright and related rights, trademarks and service marks, also holders of appellation of origin in the manner prescribed by this Code, legislation and other regulations of the Kyrgyz Republic.
Article 341. Register of the protected intellectual property subject matters
1. The authorized state body maintains the Register of the protected intellectual property subject matters (hereinafter referred as Register) with a view to customs control.
The regulation on maintaining the Register and bringing the information on its content to the customs authorities should be defined by the authorized state body.
2. For the inclusion intellectual property subject matters into Register, right holder or his/her representative should apply to the authorized state body in the manner prescribed by parts 2 and 3 of the Article 342 of this Code, and pay fee that established by the Government of the Kyrgyz Republic.
3. Into Register includes intellectual property subject matters in respect of which made an appropriate decision by the authorized state body.
4. The authorized state body shall review the application within a period not exceeding one month from the date of receipt, and makes decision on inclusion the indicated in application an intellectual property subject matter into Register or on refusal on its inclusion. If there are sufficient grounds, the authorized state body is entitled to postpone term but no longer than on month.
5. In order to validate the information submitted by the applicant, the authorized state body is entitled to request from third parties and state bodies documents that confirm applied information. The indicated state bodies and third parties are obliged to provide requested documents within 10 days of receipt of the request.
In case of changing information indicated in the application or in the annexes to this application, applicant must inform the authorized state body.
6. The authorized state body provides publication in its official editions the list of intellectual property subject matters that included into the Register.
Article 342. Procedures for consideration the application of right holder
1. Right holder or other individual representing the interests of right holder (hereinafter referred as applicant) that is of opinion that his/her rights can be or has been violated according to legislation on intellectual property of the Kyrgyz Republic in connection with the movement of goods that are counterfeit by his/her opinion across the customs border or under other acts with goods that are under the customs control is entitled to submit an application to the authorized state body with a view to protect indicated rights.
2. The application should contain the following information:
1) Information about right holder, in case of application is submitting by his/her representative – in that case also information about representative;
2) indication of intellectual property subject matter that is going to be included into Register and description goods that contain intellectual property subject matter;
3) information about the organization that produces goods containing abovementioned intellectual property subject matter and documents that confirm authority of this organization;
4) indication of origin of good;
5) information about presence and belonging of the intellectual property rights.
Documents that confirm presence and belonging of the intellectual property rights should be attached to the application (certificate, license agreement or other documents according to legislation on intellectual property of the Kyrgyz Republic), in case of need – authorization issued by right holder to the individual that represents his/her interests.
Simultaneously with the submission of application, the sample of product that contains intellectual property subject matter may be submitted and (or) its counterfeit copy.
Applicant may provide information which allows to the customs authorities identify counterfeit goods, including the anticipated date of the violations of his/her rights.
3. Applicant provides an obligation during his/her submission of an application to the authorized state body on compensation of expenses related to suspension the release of goods and loses caused to the declarants, in case if it will be determined that a suspect good is not counterfeit. The form and content of the obligation on compensation of expenses, as well as the size of enforcement the obligations are defined by the authorized state body in the manner of established the civil legislation of the Kyrgyz Republic.
4. Intellectual property subject matter is liable to exclusion from the Register in the following cases:
- in case of address by the applicant;
- in case of non-payment for the inclusion an intellectual property subject matter or non-payment for prolongation a term of protection;
- in case of providing a false information;
- by the decision of court.
Article 343. Term of protection rights
1. The term of protection by the customs authorities the rights of a right holder establishes by the authorized state body during decision making on the inclusion an intellectual property subject matter into the Register for two years from the date of including an intellectual property subject matter into the Register.
The indicated term prolongs by the authorized state body in case of presence an address of applicant on it, on the basis of payment of the appropriate fee.
2. The total term of protection rights cannot be more than the term of expiration of rights to intellectual property subject matter.
Features of customs clearance and customs control of goods containing intellectual property subject matters
Article 344. The movement of goods that contain intellectual property subject matters through the customs borders. The customs clearance and customs control of such goods
1. The movement of goods that contain intellectual property subject matters through the customs border realizes in accordance with this Code and the legislation on intellectual property of the Kyrgyz Republic.
2. The customs clearance and customs control of the goods that contain intellectual property subject matters realizes in accordance with this Code and with the specification provided in this chapter.
Article 345. The suspension of the release of goods that contain intellectual property subject matters
1. If under realization the customs clearance and customs control of the goods that contain intellectual property subject matters appears signs of counterfeit these goods shall be placed in the temporary storage, and the release of such goods suspends.
2. The decision to suspend the release for a period of ten working days makes the head of customs authority that realizes the customs clearance or the individual who is replace him/her. Upon request of the applicant the specified period may be extended, but no more than ten working days.
3. The customs authority notifies the declarant and the applicant about the reasons of suspension of the release no later than next day after day of making decision on such suspension, as well as informs declarant about applicant’s title and address and to applicant about the declarant’s title and address.
During notification an applicant the customs authority may require from the applicant to enforce the obligations. The applicant is obliged to ensure performance of obligations within 3 working days after receipt of notification on the suspension of the release goods.
4. The regulation on the decision to suspend the release, notification the applicant and the declarant about the decision and terms of prolongation the release is defined by the authorized state body.
Article 346. The compensation of expenses of the customs authorities and damages of the declarants
1. The applicant compensates expenses of the customs authority , in the following cases:
1) if do not provide documental confirmation about the taking legal steps in the judicial authorities;
2) if by the decision of court found that suspended goods are not counterfeit.
2. The declarant compensates expenses of the customs authority in case of recognition the suspended goods counterfeit.
3. The regulation on defining the size of customs authority expenses in connection with the suspension of the release goods shall be defined by the authorized state body and in case of disagreement – in court.
Article 347. Providing information. Sampling
1. The customs authority provides the applicant and the declarant information that is necessary for defining whether goods in respect of which made decision to suspend of the release are or not counterfeit
2. The information received by the applicant or the declarant in accordance with this Article is confidential and should not be disclosed or transferred to third parties, as well as to the state bodies, except in cases provided by legislation of the Kyrgyz Republic.
3. The applicant and the declarant or their representatives with permission of customs authorities may take probe and samples of goods that are under the customs control in respect of which made decision to suspend of the release and make research on them.
Article 348. The cancellation of decision on suspension of the release
1. Decision on suspension of the release is subject to cancel if during the period of validity decision on suspension of the release:
1) The applicant address to the customs authority with request to cancel the decision on suspension of the release;
2) the intellectual property subject matter will be excluded from the Register of the intellectual property subject matters in accordance with part four of Article 342 of this Code;
3) will not be provided the decision of the authorized state body that included in accordance with the legislation of the Kyrgyz Republic on seizure of goods, arrest them or their confiscation;
4) the applicant will not pay ensuring on performance of obligations within the term established in part 3 of Article 345 of this Code.
In the indicated cases the goods is subject to customs clearance and release in the manner of this Code.
2. Cancellation of decision on suspension of the release realizes by the Head of the customs authority or by the individual who is changes him/her.
Article 349. Additional power of the customs authorities on control of goods that contain intellectual property subject matter
The customs authorities have a right to suspend of the release of goods that contain intellectual property subject matter which is not included into the Register, when evidence of the fact that such goods are counterfeit, in the manner determined by the authorized state body without a duly executed application owner to defend their rights. In the indicated case the customs authority may request from right holder any information that may be used for confirmation that the goods are counterfeit. During suspension of the release goods in accordance with this Article the customs authorities immediately informs about it the right holders and declarants.
The release of goods suspend to the term no more than ten working days. This term may be prolonged for ten working days more in the presence of the written request on it by the right holders.
The customs authorities suspend of the release goods in accordance with the Regulation of this Article in the manner of defined regulation that is adopted by the Government of the Kyrgyz Republic.
Article 350. The intellectual property subject matters in respect of which do not apply measures on protection intellectual property rights by the custom authorities
Measures related to the suspension of the release goods in accordance with this Chapter do not apply by the customs authorities in respect of goods that contain intellectual property subject matters and moving through the customs border by the individuals or transferring in the international mail in small quantities, if such goods are meant for private, family, domestic and other not related to entrepreneurial needs.
Article 351. Additional provisions related to protection of the intellectual property rights by the customs authorities
1. The protection of intellectual property rights by the customs authorities does not prohibit of right holder to use any measures of protection their rights in accordance with legislation of the Kyrgyz Republic.
2. The customs authority is liable to request from declarant to destroy counterfeit goods on the basis of appropriate court decision. The declarant, authorized holder or other interested individual has the rights to appeal in the manner of established legislation of the Kyrgyz Republic.