BORDER MEASURES AND GOODS IN TRANSIT

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AIPPI INDIA FORUM 2011
Manoj G.Menda
Minimum Standards of IP Protection
International Intellectual Property Agreements such as
TRIPS have looked at setting Minimum Standards of IP
Protection which member countries need to adhere to.
By increasing the levels of Minimum Standards of IP
protection in the EU and in by some countries to TRIPS-Plus,
it has resulted in a higher level of Enforcement by means of
Border Measures. Thus the recent EU – Transit Cases.
The practical result
 New
International
Intellectual
Property
Treaties have also gone beyond the minimum
standards and flexibilities contained in TRIPS
 The concern of developing countries is to
protect their public health and access to
medicines.
 Result: Patent infringement issues become the
‘hot seat’ of debate far more than trademarks or
any of the other forms of IP
WTO Ministerial Declaration/ Doha Declaration
“We affirm that the (TRIPS) Agreement can and should
be interpreted and implemented in a manner
supportive of WTO Members' right to protect public
health and, in particular, to promote access to
medicines for all”
WTO Ministerial Declaration on the TRIPS Agreement and Public Health
– 14th November 2001
Who are affected by stronger Border Measures ?
 Developing countries trying to run health programs for their
citizens.
 Patients who don’t have access to health care in developing
countries.
 Donor countries that fund treatment programs in developing
countries (eg. USA, Japan)
 Countries that produce generics (eg. India)
 Countries that import generics (eg. Africa)
 Countries that want to produce generics (eg. Vietnam)
The Indian SC on the issue of “Goods in Transit”
 Gramophone Company of India.vs. Pandey AIR 1984 SC 667.
Gramophone Company of India Limited was the owner of copyrights.
A consignment of pirated copies recordings was seized at Calcutta.
The pirated copies were in transit from Singapore to Nepal through India.
ISSUES CONSIDERED BY THE SUPREME COURT OF INDIA
 Whether the mere presence of goods in transit on Indian Territory amounts
to their importation?
 Whether such goods in transit, which if made in India would infringe
copyright, can be allowed on Indian Territory?
The Supreme Court held that ‘import’ includes importation for transit
across the country and accordingly there was infringement of Copyright.
Infringement in Transit Country
Infringement in the transit country is often the core issue
such as for eg. in the patent space. Patent Infringement is
judged on the basis of the Patent law of the transit country
and not on the basis of the Patent law of the country of
importation.
India and Brazil, NGOs and organisations such as Medecins Sans
Frontieres have viewed and commented that such EU border
measures are “contrary to TRIPS”
Other courts on the issue
The Polo Ralph Lauren Company V. PT.Dwidua Langgeng
Pratama International Freight Forwarders (European
Court of Justice, 2000)
HELD:
”Goods placed under this procedure are subject neither to the
corresponding import duties nor to the other measures of
commercial policy; it is as if they had not entered Community
territory.”
“there is a risk that counterfeit goods placed under the external
transit procedure may be fraudulently brought on to the
Community”
OTHER GOODS IN TRANSIT CASES
 Montex Holdings Ltd v Diesel Spa European Court of Justice,2006
Montex made jeans. It exported different pieces from Ireland to Poland.
Some pieces had Diesel trade marks. These exports were in transit in
Germany and to be finally shipped to Ireland, where Diesel had no trade
mark registration.
Issues Considered: "1. Does a registered trade mark grant its proprietor the right to prohibit the
transit of goods with the sign?
 2. If the answer is in the affirmative: may a particular assessment be based
on the fact that the sign enjoys no protection in the country of destination?"
Held:- Not infringement. Trade Mark protection does not apply to goods in
transit.
OTHER GOODS IN TRANSIT CASES
LOST IN TRANSIT!
 Nokia, and Philips 2011 cases
 Interpretation of EU customs regulations.
 To enforce their IP rights, Nokia and Philips will have get the
infringing goods seized in the destination country of
intended sale. Not in transit!
EU – INDIA FTA
IP protection measures is an issue that is being negotiated for
signing an EU – India FTA.
Border Measures are being discussed.
Sharing IP Information is the key

OWNERSHIP, TERM, and VALIDITY
 At the source, TRANSIT and DESTINATION Country must
be disclosed and also be easily accessible to the Customs
Enforcement Authorities on a global basis.
Proposal For Harmonization
 Border Measures and Actions by Customs for “Genuine
Goods” or “Generic Medicines” in transit must be
handled and treated differently from goods that are
clearly “Counterfeit”
 A model law could be prepared and circulated by AIPPI.
 The law should be harmonized based on TRIPS and not
on the basis of any bilateral Trade Agreements.
Thank you!
[email protected]
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