Raising public awareness

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Raising public awareness

  1. 1. IPR REGIONAL WORKSHOPDEVELOPMENT OF ENFORCEMENT REGIME RTC JAPAN 11-14 SEPT 2012 BY ZAKARIA YUSUFF STATE DEPUTY OF CUSTOM (ENFORCEMENT DIVISION) ROYAL MALAYSIA CUSTOM
  2. 2. ROYAL MALAYSIAN CUSTOMSDEPARTMENT
  3. 3. DETAILS OF ROYAL MALAYSIANCUSTOMS ADMINISTRATION
  4. 4. ROYAL MALAYSIAN CUSTOMS VISION To Be A World Class Customs Administration By The Year 2015 MISION STATEMENT To Spur Economic Growth, Preserve National Security And Society’s Well Being Through Revenue Collection, Trade And Industrial Facilitations And To Ensure Effective And Efficient Legislative Compliance FUNCTION• Collect Indirect Taxes more efficiently and effectively• To encourage Industrial Growth and development• Detect & prevent smuggling activities, prevent loss of revenue• Administer Customs related laws and regulations• Coordinate International Affairs and Clients affairs
  5. 5. LEGAL BASIS The Major Laws Administered And Enforced By The Malaysian Customs Authority Are As Follows:-  Customs Act 1967  Customs Regulations 1977  Excise Act 1976  Excise Regulation 1976  Sales Tax Act 1972  Sales Tax Regulations 1972  Service Tax Act 1975  Service Tax Regulations 1975  Free Zone Act 1990  Free Zone Regulations 1991  Vehicle Levy Act 1983  Dangerous Drugs Act 1952  Anti-Money Laundering and Anti-Terrorism Financing Act 2001  Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007  Chemical Weapons Convention Act 2005  Strategic Trade Act 2010
  6. 6. ORGANIZATION STRUCTURE ONI.P.R ENFORCEMENT
  7. 7. POLICY – NATIONAL INTELLECTUALPROPERTY POLICY (N.I.P.P.) Policy Statement  To harness I.P. as a new engine of growth.  Focuses on maximizing the contribution of I.P.  Valuable competitive economic asset in a knowledge-based economy.  To build Malaysia as an I.P. hub. Rationale  A principal guide in enacting laws and regulations.  Encourage activities on I.P. amongst the related government agencies, research institutions, tertiary institutions, N.G.Os. and the private sector.  To stimulate and develop the I.P. industry as an integrated component of the country’s economic policy.
  8. 8. CONTINUE… Objectives  Highest standard of I.P. protection system.  Promotion of I.P. centered activities.  Promotion of commercial exploitation of I.P..  Development of I.P. management capabilities.  Development of infrastructure for I.P. transaction.  Protection of national I.P. interest.  Human resource development and public awareness.  Promotion of foreign investment and technology transfer.
  9. 9. Continue… Aims  Enhancement of economic, social and cultural prosperity.  Strengthening the nation’s competitiveness.  Development of Malaysia as a leading I.P. hub.  Establishment of an I.P. culture.
  10. 10. STRATEGY Some Of The Strategies Are:-  Strengthening the I.P. administration.  Updating laws and regulations.  Capacity building.  Strengthening government agencies.  Setting up I.P. court.  Fast and easy acquisition of protection and rights.  Proactive MyIPO Resource Centre.  Create an encouraging I.P. environment.  Enlarge I.P. pool.  Acquire foreign I.P. in selected priority areas.  Foster tripartite smart partnership between the government, private sector and research institutions.  Capitalize existing I.P. pool.
  11. 11. CONTINUE…  Promote distribution of research and development results.  Identify I.P. creators in the country.  Support I.P. industries in their commercial exploitation.  Stimulate entrepreneurial I.P. related activities.  Create a business environment for the local and foreign enterprises.  Create different level of I.P. specialists.  Monitor the development and progress of I.P. in the international arena.  Setting up a national institute on I.P. specialized training.  Conduct regular I.P. public awareness campaign.  Ensuring investors gain in their I.P. ventures.
  12. 12. PROTECTION Border Enforcement I.P.R. Specialist Team Sharing Expertise with I.P. Owners Building In-house I.P. Experts Usage of Information Technologies
  13. 13. ENFORCEMENT ACTION Seizure of IPR Infringing Products  1) 191 sets of counterfeit Kenwood brand walkie-talkie  2)Counterfeit Motorola brand walkie-talkie Counterfeit Cigarettes  1) 10,210,000 stick of Texas 5 & Luffman white cigarettes (Contraband)
  14. 14. FALSIFYING CONTRY ORIGIN Seizures of 3,328 units of Food Processor with YELMO brand  Made in China products but claimed as Made in Malaysia Seizures of 7 container of Garments  Made in China garments but claimed as Made in Malaysia Seizures of 2,100 cartons of GLINTER SOFT DRINK  Made in China but claimed as Made in Malaysia
  15. 15. VIAGRA21 June 2009  4 containers 40 ft and 2 containers 20 ft were detained in Port Klang  Consignment declared as Health Supplement, based on our Risk Assesment  100% physical examination was conducted and found white tablets suspected to be precusor for manufacturing syabu. Also discovered counterfeit viagra and cialis tablets concealed in the containers
  16. 16. Continues… The white tablets suspected as precusors was investigated under The Dangerous Drugs Act 1952 and the counterfeit viagra case was handed over to Domestic Trade and Consumer Affairs Ministry (MDTCA) is now officially known as the Ministry of Domestic Trade, Cooperative and Consumerism (MDTCC), effective 11 June 2009 for further investigation and prosecution.
  17. 17. BORDER ENFORCEMENT The National Legislations on I.P.R. only grant the Malaysian Customs Authority ex-officio powers. The Legislations are : Copyright Act 1987 Trade Marks Act 1976 Patents Act 1983 Industrial Design Act 1996 Layout designs and Integrated Circuit Act 2000 Geographical Indications Act 2000
  18. 18. SPECIALISED IPR ENFORCEMENTTEAM We do not have dedicated personnel at the regional specializing on I.P.R.. We have personnel to undertake the task on a sharing basis. The plan to expand the current resources is in the pipeline and we expect someday it will be a reality that a fully specialized and dedicated personnel on I.P.R.
  19. 19. EXPERT TRAINING We have a very closed working partnership with the I.P. holders and in many occasions the I.P. holders have invited the Customs Officers for specialized training on their products. Training on I.P.R. is also conducted by our Customs Academy. We have training modules devised with the purpose of building I.P.R. experts in the organization.
  20. 20. USE OF CENTRAL DATABASE The Customs Authority is working closely with MyIPO on developing a system of sharing I.P.R. database and hopefully, this will materialized in the future. With this database combining with our existing Central Intelligence Network, we are confident that we will be able to curb the activity of smuggling counterfeit and pirated goods into and going outside the country.
  21. 21. PROBLEMS Fine Tuning Present Risk Assessment with I.P.R. Enforcement. Overstretched Resources. Capacity Building – Training of Experts. Legislation Only on Importation and Not on Exportation and In-Transit.
  22. 22. NATIONAL LEGISTLATIONS ON IPR Copyright Act 1987 Trade Marks Act 1976 Trade Descriptions Act 1972 Patent Act 1983 Industrial Design Act 1996 Optical Disc Act 2000
  23. 23. TRIPS AGREEMENT 1994(Trade Related Aspects of Intellectual Property Rights) Art. 41 (General Obligations)  Members shall ensure that enforcement procedures as specified are available under their law.
  24. 24. TRIPS AGREEMENT 1994Sec. 4 Special Requirements Related To Border Measures Art. 51  Right holder (counterfeit trademark / pirated copyright goods) lodge report to competent authorities for suspension by customs of the release of such goods (import & export into / outside Malaysia).  “Competent Authorities” in Malaysia – Ministry Of Domestic Trade And Consumer Affairs (MDTCA)
  25. 25. TRIPS AGREEMENT 1994Sec. 4 Special Requirements Related To Border Measures Art. 52  right holder to provide adequate evidence of infringement of the IPR to the competent authorities  Supply detailed description of the goods  The competent authorities approval.
  26. 26. TRIPS AGREEMENT 1994Sec. 4 Special Requirements Related to Border Measures Art. 53  IP owner (IPO) to provide security to protect the defendant, competent authorities and to prevent abuse  Importer to give security on application of release to protect the right holder and such security shall be released if the IPO fails to pursue the right action within reasonable time.
  27. 27. TRIPS AGREEMENT 1994Sec. 4 Special Requirements Related To Border Measures Art. 54 – Notice of suspension Art. 55 – Duration of suspension Art. 56 – indemnification of the importer and the owner of the goods Art. 57 – Right of inspection and information Art.58 – Ex-officio Action
  28. 28. TRIPS AGREEMENT 1994Sec. 4 Special Requirements Related To Border Measures Art. 59 – Remedies  Competent authorities to dispose the infringing goods in accordance with Art. 46  Not to allow re exportation of the infringing goods. Art.60 – De Minimis import  Art. 51-59 does not applicable to small quantities of goods
  29. 29. TRIPS AGREEMENT 1994Sec. 4 Special Requirements Related To Border Measures Art. 61 – Criminal Procedures  Members to provide criminal procedures and penalties to cases of trademark counterfeiting / copyright piracy on a commercial scale.  Remedies :  Imprisonment / fine  Seizure  Forfeiture  destruction
  30. 30. ROLE OF ROYAL MALAYSIANCUSTOMS ON IPR COPY RIGHT ACT 1987  Sec. 39  Sec. 41 TRADE DISCRIPTION ACT 1972  Sec. 17 TRADE MARKS ACT 1976  Sec. 70C – 70P  Reg. 83A
  31. 31. COPYRIGHT ACT 1987 Sec. 39 – Restriction on importation of infringing copies  IPO applies to Controller (MDTCA) for the work to be treated as infringing copies  Security  Fee / supporting document  Controller Approval / duration as infringing copies  Importation to be prohibited
  32. 32.  Sec. 39  Power to search and seizure of prohibited infringing copies  Assistant Controller, police, officer of customs  After seizure  Give notice to IPO / owner  Prohibited infringing copies liable to forfeiture
  33. 33.  Sec. 41 – Offences  Sec. 41(f)  Imports into Malaysia otherwise than for his private and domestic use  Shall be liable to a fine not exceeding RM 10,000 for each infringing copy / jail not exceeding 5 years or both. For subsequent offence to a fine not exceeding RM 20,000 / jail not exceeding 10 years or both  Sec. 41(j)  Imports for distribution ….  Shall be liable to a fine not exceeding RM 250,000 / jail not exceeding 3 years / both. For subsequent offence to a fine not exceeding RM 500,000 / jail not exceeding 5 years or both
  34. 34.  Part VII - Enforcement Powers  Assistant Controller and Police
  35. 35. TRADE MARKS ACT 1976Part XIVABorder Measures Seizure of counterfeit trade mark and secure storage of seized goods by authorized officer Authorized officer notify Registrar / importer / applicant of the seizure Applicant file action for infringement Inspection of seized goods by applicant / importer subject to undertaking Forfeiture of seized goods by consent of the importer
  36. 36.  Compulsory released of seized goods to importer:  Applicant not instituted action for infringement  Action for infringement has been instituted but after 30 days there is no Court order for preventing the released of the goods. Aggrieved party may apply compensation from court if applicant failed to instituted action for infringement.
  37. 37.  Sec. 70 o – Ex Officio action  Authorized officer detain the goods based on prima facie evidence  Authorized officer notify the Registrar / importer / applicant of the detention
  38. 38. TRADE DESCRIPTIONS ACT 1972 Sec. 17 – Prohibition of importation of goods bearing false indication of origin.  The Minister may make an order prohibiting the import of the goods into Malaysia.
  39. 39.  Until today RMC does not received:  any application for prohibition of importation of infringing goods under Sec. 39 of the Copyright Act.  Any objection of importation under Sec. 70D of the Trade Marks Act  - Order for prohibition under Sec. 17 of the Trade Descriptions Act
  40. 40.  (Ex Officio Action by RMC)  Any complaint on importation of infringing goods / counterfeit trade marks:  IPO refer to RMC headquarters  Prima facie evidence of IP right holder’s  Supply sufficient detailed description of goods
  41. 41.  RMC search and seized Notify IP right holders and MDTCA Inspection by IP right holders and MDTCA If proved to be infringing goods, refer the case to MDTCA for investigation and further action. If no proof of infringement and no violation of custom’s procedures - released the goods to the owner / importer as soon as possible.

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