Jamaica Observer - Customs House Weekly #7
Jamaica Customs and the Fight against Intellectual Property Right (IPR) Infringement:
How Legitimate Businesses Can Combat the Counterfeit Trade
The Jamaica Customs Agency (JCA) is committed to protecting Jamaica’s borders and the organisation places high emphasis on protecting consumers from counterfeit products.
As the holiday season approaches, and with high volumes of goods expected to be imported, the JCA is imploring Trade Mark Owners and Licensees to be vigilant as it pertains to the importation and subsequent sale of counterfeit products, by making a formal request to the Commissioner of Customs, to undertake the seizure of these goods at the port of entry or on the local market.
This week’s series will look on the following:
- What are Counterfeit Goods
- The negative impacts of counterfeit goods to consumers and on the economy
- The regulatory framework that governs the trading of goods or their seizure
- Steps Trade Mark Owners and Licensees can take to protect their businesses
Simply put, counterfeit goods are fake items, which an illegitimate trader seeks to pass off as a genuine product. They may range from pharmaceutical products, backpacks, eyeglasses, lotions, handbags, perfumes, clothes, watches, footwear, cosmetics, electrical items, alcohol, and pirated DVDs/CDs, among others. The sale and use of counterfeit goods are of grave concern to the JCA as a result of:
- The poor conditions under which some of these goods are manufactured.
- The ingredients that are used in some of these products, such as pharmaceutical products (e.g. tablets coated with common house hold paint in an effort to match the colour of the original product).
- The negative impact counterfeit trade has on a legitimate trader and ultimately the Jamaican economy – legitimate traders, who manufacture according to established standards are forced to compete with illegitimate traders, who often sell their products at significantly reduced prices.
Negative Effects of Copyright Infringement
Counterfeit Trading does the following:
- Deceives consumers who believe they are buying authentic products.
- Robs legitimate manufacturers that invest in safety and quality manufacturing processes
- Destroys brand name and reputation
- Deters investors especially those in the manufacturing space.
- Consumers are exposed to serious health and safety risks associated with counterfeit products
Regulatory Framework Used to Assist in the Effort
- Customs Act
- Merchandise Marks Act
- Trade Marks Act
- Copy Right Act
- Consumer Protection Act
- Standards Act
- Proceeds of Crime Act (POCA)
Steps Trade Mark Owners, Licensees Can Take to Protect their Businesses
A legitimate proprietor, who desires the Customs Agency to act on its behalf must make a formal request to the Commissioner of Customs, and provide the following documentation, in keeping with the Trade Marks Act (Section 66) and the Customs Act (Sections 40, 44):
- Written notice to the Commissioner of Customs that he is the proprietor or licensee of the relevant trade mark.
- Written information that indicates the time of arrival of the infringing goods in Jamaica, and a request to the Commissioner of Customs that such goods are treated as prohibited, under the Customs Act.
- Certified copies of the relevant certificates of registration, issued by the Jamaica Intellectual Property Office (JIPO) in respect to the trade mark.
- Letter of Indemnity which states that the rights holder shall indemnify the Commissioner of Customs in respect of all claims, proceedings, demands, liabilities, costs and losses of any kind whatsoever, arising from or in connection with the enforcement action taken by the Commissioner of Customs. The Letter of Indemnity shall be executed before a Justice of the Peace or a Notary Public.
- A list of authorised importers and distributors in Jamaica, with the relevant contact information.
- All expenses incurred by the JCA in the relation to the enforcement action, are to be undertaken by the rights holder.
- The ‘Notice to Act’, the ‘Letter of Indemnity’ and all other documents, are to be addressed to the Commissioner of Customs, Jamaica Customs Agency, Head Office, Newport East, Myers’ Wharf, Kingston.