| (1) |
The owner of an intellectual property right may apply to the Commissioner for Customs and Excise (hereafter called the Commissioner), to seize and detain all goods— |
| (a) |
which are counterfeit goods featuring, bearing, embodying or incorporating the subject matter of that intellectual property right or to which the subject matter of that right has been applied; |
| (b) |
and which are imported into or enter the Republic during the period specified in the application. However, that period may not extend beyond the last day of the period for which that intellectual property right subsists. |
| (2) |
For the purposes of subsection (1), the applicant may furnish to the Commissioner a specimen of the goods that are protected goods of the nature contemplated in paragraph (a) of the definition of ‘‘protected goods’’ in section 1(1) (if any) and to which the subject matter of his or her relevant intellectual property right relates, and sufficient information and particulars as to the subsistence and extent of that intellectual property right and as to his or her title to that right. |
| (3) |
The Commissioner must consider and deal with an application in terms of subsection (1) without delay, and must grant the application if satisfied on reasonable grounds— |
| (a) |
that the goods claimed to be protected goods, are prima facie protected goods; |
| (b) |
that the intellectual property right, the subject matter of which relates to the protected goods, prima facie subsists; and |
| (c) |
that the applicant prima facie is the owner of that intellectual property right. |
| (4) |
When an application made in terms of subsection (1) has been granted and notice thereof given in terms of subsection (5), all goods that are counterfeit goods of the type with reference to which that application was made (hereafter called the stipulated goods), or suspected on reasonable grounds to be stipulated goods, and imported into or entering the Republic from time to time during the period determined by the Commissioner (which may be shorter than the period applied for), may be seized and detained by the customs authorities in performing their functions under the Customs and Excise Act, 1964 (Act No. 91 of 1964), subject to the provisions of subsections (6) and (7) of this section. |
| (5) |
The Commissioner, by written notice (issued within a reasonable time after having decided the application) must notify the applicant whether the application has been granted or refused, and— |
| (a) |
if granted, state the period during which any stipulated goods being imported into or entering the Republic will be made subject to seizure and become subject to detention under subsection (4); |
| (b) |
if refused, state the reasons for the refusal. |
| (6) |
For the purposes of acting under subsection (4) in relation to goods that are stipulated goods or suspected on reasonable grounds to be stipulated goods— |
| (a) |
any member of the customs authorities will act mutatis mutandis as if he or she were an inspector who, in connection with counterfeit goods or alleged or suspected counterfeit goods, were exercising the powers contemplated in section 4(1) on own initiative in terms of section 3(4); |
| (b) |
the following provisions of this Act will apply mutatis mutandis in relation to any member of the customs authorities, namely— |
| (i) |
the provisions in accordance with or subject to which the powers contemplated in section 4(1) may be exercised by an inspector so acting on own initiative; |
| (ii) |
the provisions by which any other power or any right, function, duty, obligation, exemption, indemnity or liability is conferred or imposed on an inspector so acting. |
However, the Minister, at the request of the Minister of Finance acting on the recommendation of the Commissioner, may by notice in the Gazette exempt the members of the customs authorities from any of the provisions made applicable by this paragraph if satisfied that there are suitable and appropriate alternative arrangements made by or under the Customs and Excise Act, 1964, that cover the purpose of the provision from which exemption is sought.
| (7) |
The customs authorities will not be obliged to act in terms of subsection (4) unless the owner of the intellectual property right, the subject matter of which is alleged to be featured or borne by or incorporated or embodied in or to have been applied to stipulated goods, furnishes to the Commissioner security in the manner and amount that the Commissioner may require to indemnify the customs authorities and their members against any liability that may be incurred pursuant to the seizure and detention of goods or anything done in relation to goods when acting or purportedly acting under this section, and to cover any expenses that may be incurred in effecting the seizure and detention of the goods. |
| (8) |
The provisions of this Act will not be construed so as to render the customs authorities or any of their members liable for— |
| (a) |
any failure to detect or seize stipulated goods; |
| (b) |
the inadvertent release of any such goods; or |
| (c) |
any action taken in good faith in respect of such goods. |
| (9) |
For the purposes of this section, ‘‘customs authorities’’ means the South African Revenue Service in its Division: Customs and Excise, the members of which are the Commissioner and those officials who are ‘‘officers’’ within the contemplation of the definition of ‘‘officer’’ in section 1(1) of the Customs and Excise Act, 1964. |
Foodstuffs, Cosmetics and Disinfectants Act, 1972
