Cap. 414 Art. 5Application for action by customs authorities.

(1) The holder of a right may lodge an application in writing with the Comptroller of Customs for action by the Customs authorities where goods alleged to infringe intellectual property rights are placed in one of the situations referred to in article 4.

(2) The application referred to in sub-article (1) shall include:

(i) a sufficiently detailed description of the goods to enable the Customs authorities to recognise them; and

(ii) proof that the applicant is the holder of the right for the goods in question and that prima facie the goods infringe that right.

(3) The proof required for the purpose of sub-article (2) may be as follows:

(a) Where the holder of the right applies himself:

(i) in the case of a right that is registered or for which an application has been lodged such as a trademark, patent or design right: proof of application has not been lodged: any proof of authorship or the person’s status as original holder.

(b) Where the application is made by any other person authorised to use an intellectual property right, in addition to the proof required under paragraph (a) of this sub-article: the document by virtue of which the person is authorised to use the right in question shall also be produced or sufficiently quoted.

(c) Where the application is made by a representative of the holder of a right or of any other person authorised to use an intellectual property right, in addition to the proof required under paragraphs (a) and (b) of this sub-article, proof of authorisation to act shall also be produced.

(4) The holder of the right shall also provide all other pertinent information available to him to enable the Comptroller of Customs to take a decision in full knowledge of the facts without, however, that information being a condition of admissibility of the application.

(5) In the case of pirated goods or of goods infringing patents, the said information shall, wherever possible, include by way of indication:

(i) the place where the goods are situated or the intended destination;

(ii) particulars identifying the consignment or packages;

(iii) the scheduled date of arrival or departure of the goods;

(iv) the means of transport used;

(v) the identity of the importer, exporter or holder.

(6) The application shall specify the length of the period during which the Comptroller of Customs is requested to take action.

(7) (i) The applicant shall be responsible to cover the administrative costs incurred in dealing with the application.

(ii) The applicant or his representative shall also be responsible to cover the administrative costs incurred in implementing the decision of the Comptroller of Customs referred to in this article.

(iii) Such costs shall be determined by the Comptroller of Customs and shall not be disproportionate to the service provided.

(8) The Comptroller of Customs shall deal with the application initiation of civil judicial proceedings. That period may, upon application by the holder of the right, be extended by the Comptroller of Customs.

(10) Any refusal to grant an application shall give the reasons for refusal and shall be subject to appeal to the Minister responsible for Customs within three working days from notice to the applicant of the refusal.

(11) The appeal referred to in sub-article (10) shall:

(i) be in writing and shall contain a brief statement of the facts and state the reasons for the appeal;

(ii) be notified to the Comptroller of Customs who shall reply within three working days from receipt of the appeal.

(12) The Comptroller of Customs may require the holder of a right, where his application has been granted, to provide a security:

(i) to cover any possible liability on the part of the Comptroller of Customs vis-à-vis the persons involved on one of the operations referred to in article 4 where the procedure initiated pursuant to article 5 is discontinued owing to an act or omission by the holder of the right or where the goods in question are subsequently found not to be goods infringing an intellectual property right;

(ii) to ensure payment of the costs incurred in accordance with this Act, in keeping the goods under Customs control pursuant to article 5.

(13) The holder of the right shall inform the Comptroller of Customs forthwith if his right is no longer validly registered or if it expires.

(14) Sub-articles (1) to (13) shall apply mutatis mutandis to the extension of the decision on the original application.