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Protecting your business against counterfeit goods

Article by Tayyiba Nalla from Adams & Adams

Did you know that South Africa has legislation in place to curtail the importation of counterfeit goods into the country? This is made possible under the auspices of the Counterfeit Goods Act no. 37 of 1997.

Section 15 of the Counterfeit Goods Act gives the owner of an intellectual property right (typically trade marks or copyright but excluding design or patent rights) an opportunity to apply to the Commissioner of Customs and Excise to seize and detain goods imported into the Republic which are suspected counterfeit goods featuring, bearing, embodying or incorporating the subject matter of the intellectual property right upon which the application is based.

The application requires submission of a power of attorney, proof of the trade mark and/or copyright to be recorded and security to indemnify Customs against any liability that may be incurred pursuant to a wrongful seizure or detention of goods. The application is valid for two years, renewable for as long as the intellectual property right is valid.

Once the application is accepted, Customs officials are authorised to detain any suspected counterfeit goods, after which the proprietor or licensee has an opportunity to inspect a sample of the goods and, if counterfeit, file an affidavit to ensure that the goods are not released to the importer. Civil and/or criminal proceedings may be instituted at the election of the proprietor or licensee once the goods have been seized.

As part of an anti-counterfeiting strategy, it is recommended to take advantage of this process. In the absence of a recordal application, Customs is not obliged to detain or seize goods, even if they are suspected of being counterfeit.

Customs officials are instrumental in the detention and seizure of counterfeit goods and a Customs recordal is one of the cornerstones in the battle against the importation of counterfeit goods.

Customs recordal applications are also possible in numerous other African countries. Please do not hesitate to contact our anti-counterfeiting team for more information.

Adams & Adams is a proud Partner of the National Small Business Chamber (NSBC).