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ПЕРЕВОД Положения Федерального закона от 27.11.2010 № 311-ФЗ "О ТАМОЖЕННОМ РЕГУЛИРОВАНИИ В РОССИЙСКОЙ ФЕДЕРАЦИИ", Таможенного кодекса Таможенного союза (в части защиты таможенными органами прав на объекты интеллектуальной собственности)

The 27th of November, 2010     N 311-FL

RUSSIAN FEDERATION

FEDERAL LAW

ABOUT CUSTOMS REGULATION IN THE RUSSIAN FEDERATION 

 

 

Enacted

by the State Duma on the 19th of November, 2010

 

Approved by the Federation Council on the 24th of November, 2010

 

 

 

Section VII. THE PECULIARITIES OF CARRYING OUT CUSTOMS OPERATIONS FOR THE CERTAIN CATEGORIES OF GOODS

 

Chapter 42. THE MEASURES FOR THE PROTECTION OF THE INTELLECTUAL PROPERTY RIGHTS

 

Article 305. The reasons of taking measures for the protection of intellectual property rights by the Customs authorities

 

  1. The Customs authorities take measures for the protection of intellectual property rights connected with the suspension of the release of the goods in accordance with chapter 46 of the Customs code of the Customs Union and this chapter.
  2. The measures for the protection of the intellectual property rights are taken with regard to the goods, containing the items of copyright and related rights, trademarks, service marks and names of places of the goods origin (hereinafter referred to as intellectual property item), included in the Customs register of intellectual property items as per the right holder’s application. The Customs authorities have the right to take measures to protect intellectual property rights without the right holder’s application pursuant to this chapter.

 

Article 306. Submitting of an application by a right holder and the procedure of its consideration

 

  1. The right holder, having reasonable grounds to think that there can be a violation of his rights in accordance with the legislation of the Russian Federation in connection with the bringing the goods into the Russian Federation or transporting them out of the Russian Federation or while performing other actions with the goods, being under the customs control, has the right to submit to the Federal Executive authority, authorized in the sphere of Customs Affairs, the application about including the appropriate intellectual property item into  the Customs register of intellectual property items. The actions, stipulated by the customs legislation of the Customs Union and this Federal law, on behalf of the right holder can be carried out by his representative.
  2. The application about the inclusion of intellectual property item into the Customs register of intellectual property items must contain the data:
  3. about the right holder and if the application is submitted by his representative, about the representative as well;

2) about intellectual property;

  1. about the goods, bringing of which into the Russian Federation or transporting them out of the Russian Federation or making the other actions with them when they are under the customs control in the right holder’s opinion cause the violation of his rights, quite detailed to enable the Customs authorities to identify such goods;
  2. about the timing, during which the customs authorities will be taking measures, connected with suspension of release of the goods.
  3. To the application there should be attached the documents, confirming the right for the intellectual property item (the certificate, the agreement on the alienation of the exclusive right, the agreement about granting the exclusive license, the other documents which the right holder can submit to confirm his rights for the intellectual property items) and if the application is filed by the representative, the  letter of attorney, issued by the right holder to such a person, is attached to the indicated application as well. The right holder can attach to the application the specimens of the goods that can serve as a confirmation of the existing, in his opinion, fact of the violation of the right holder’s rights for the intellectual property items.
  4. The procedure for filing an application, the requirements to the declared data and to the submitted documents, depending on the type of the intellectual property item are determined by the Federal authority of the executive power, authorized in the sphere of customs.
  5. To the application there attached the right holder’s written commitment about compensation of damage to property that can be caused to the declarant, to the owner, to the recipient of the goods or to other people in connection with the suspension of the release of the goods.
  6. The Federal authority of the executive power, authorized in the sphere of customs, is reviewing the application within the timing,  not exceeding one month from the date of receipt of the application, and shall decide on taking the measures, connected with the suspension of the release of the goods, or on the refusal to take such measures and to  include the intellectual property item into the Customs register of intellectual property items.
  7. In order to check validity of the information, submitted by the right holder, the Federal body of executive power, authorized in the sphere of customs, shall have the right to request the right holder (his representative), the third parties, as well as the state authorities to provide the documents, confirming the declared data. The required documents must be submitted within 10 days of receiving the request. At that the Federal body of executive power,  authorized in the sphere of customs, has right to extend the term of reviewing the application, but for not more than one month.
  8. Reviewing of the application can be suspended if the right holder (or his representative) has not provided the requested documents, essential for making the decision. At that the overall term of reviewing the application cannot be more than three months. If the right holder (his representative) has not provided the requested documents the application shall be considered to be withdrawn and it is not subject to further reviewing, the right holder (his representative) is notified about it in the written form or in electronic form.
  9. The decision not to take measures, connected with the suspension of the release of the goods and to include intellectual property item into the Customs register of the intellectual property items, shall be made if the submitted documents do not confirm that the applicant has the rights for  intellectual property or if the applicant submits inauthentic data. The decision to refuse to include the item of intellectual property into the Customs register of intellectual property items is also made in case of right holder’s failure to comply with the requirement, established by part 2 of article 307 of this Federal law.
  10. The right holder shall be informed about the decision in the written form or in electronic form within three days from the date of making such a decision.
  11. In case of changing the data, indicated in the application or in the documents, attached to it, the right holder is obliged to immediately inform about it the Federal body of executive power, authorized in the sphere of customs.

 

Article 307. The Customs register of intellectual property items

 

1. The items of copyright, the subject matters of neighboring rights, trademarks, service marks and names of the origin of the goods in respect of which the Federal body of executive power, authorized in the sphere of customs, made the decision to take measures, connected with the suspension of the release of the goods are included into the Customs register of intellectual property items. Inclusion into the register is free of charge. The Federal body of executive power, authorized in the sphere of customs, is record-keeping the register in the manner, established by this authority.

2. The intellectual property items, in respect of which the Federal body of executive power, authorized in the sphere of customs, made the decision to take the measures, connected with the suspension of the release of the goods, are included into the register, provided that the right holder insured the risk of liability for the damage in favor of people, indicated in part 5 of article 306 of this Federal law. At that the insured amount must be not less than 300 000 rubles.

3. If the right holder has not submitted into the Federal body of executive power, authorized in the sphere of customs, the insurance contract (the insurance policy), the risk of liability for the damage in favor of people, indicated in part 5 of article 306 of this Federal law, within one month from the date of notification about the taken decision about taking measures, connected with the suspension of the release of the goods, the above-indicated Federal authority makes the decision to refuse the inclusion of the intellectual property item  into the register.

4. The intellectual property is excluded from the register if there are at least one of the following reasons:

1) the right holder’s submission of the application about excluding the intellectual property item from the register;

2) the right holder’s failure to comply with the condition, called for in part 2 of this article;

3) the termination of the legal protection of the intellectual property item in the established manner;

4) revealing the inauthentic information, submitted while applying for the inclusion of the intellectual property item into the register.

4.1. The Federal body of executive power, authorized in the sphere of customs, shall have the right to request the right holder (his representative), the third parties, as well as the state authorities, to provide the documents, confirming the rationales, indicated in items 2-4 of part 4 of this article.

2 Changes can be entered into the register on the basis of the information received from:

1) from the right holder about the change of the information, indicated in the application about the inclusion of the intellectual property item into the register or in the documents, attached to it;

2) from the law enforcement agencies or the other state agencies, as well as from the individuals or legal entities that the people, indicated in the register as the right holders, are deprived of the rights or restricted in the rights for the item of the intellectual property.

3) Entering changes into the register is carried out on the basis of the decision of the Federal body of executive power, authorized in the sphere of customs.

4) Entering changes into the register can be preceded by verification of the received information on the basis of the decision of the Federal body of executive power, authorized in the sphere of customs, the right holder and the Customs authorities shall be notified about it not later than one working day after making the appropriate decision. At the time of the checking the taking of measures, connected with the suspension of the release of the goods, containing such item of intellectual property, is not carried out by the customs authorities.

5) The period, for which the item of intellectual property is entered into the register, can be suspended for the time, necessary for checking, but for no more than two months.

6) The Federal body of executive power, authorized in the sphere of customs, provides publication of the data of the register in its official publications and posting them on its official website in the information and telecommunication network "Internet" in accordance with the procedure, established by it.

 

Article 308. The suspension of the release of the goods, containing items of the intellectual property, not entered into the register

 

1 The Customs authorities have the right to suspend the release of the goods, containing items of the intellectual property, not entered into the register, in case of detecting signs of violation of the intellectual property rights and in case of availability of the information about the right holder (his representative) at the territory of the Russian Federation. The Customs authorities have the right to request the right owner to provide the information, required for the exercise of the powers, provided for in this article. In case of suspension of the release of the goods in accordance with this article the Customs authorities not later than the next day after the day of the suspension of the release of the goods shall inform the right holder and the declarant.

2 The release of goods is suspended for seven working days. The customs authority has the right to extend the indicated timing but for no more than 10 working days, if the right holder has sent an appeal to the customs body in writing about such an extension and submitted to the Federal body of executive power, authorized in the sphere of customs, the  application about the inclusion of the relevant intellectual property item into the register in accordance with article 306 of this Federal law.

3 The right holder is entitled to receive from the customs body the information about the goods in respect of which it was decided to suspend the release in accordance with this article, as well as to take samples and specimens of such goods.

4 The decision to suspend the release of the goods shall be canceled prior to the expiration of the suspension of the release of the goods, if the information, available to the customs body about the right holder has not been confirmed or the right holder addressed to the customs authority with a request to cancel such a decision, as well as in the case, provided for in article 310 of this Federal law. If until the expiration of the suspension of the release of the goods the right holder has not fulfilled the conditions, set forth in part 2 of this article, or the authorized body has not made the decision to withdraw the goods, to arrest or to confiscate them, the release of the goods is carried out in the manner, established by the customs legislation of the Customs Union and this  Federal law.

5 The measures, provided for in this article, are not applied in respect of the goods, containing items of intellectual property, on which the measures were taken earlier in accordance with this article.

 

Article 309. The timing of making decisions by the Customs authorities about taking the measures, connected with the suspension of the release of the goods.

 

The decisions of the Customs authorities to suspend the release of the goods, about the extension of timing of the suspension of the release of the goods, about canceling the decision to suspend the release of the goods, as well as about granting the right for information and taking samples and specimens shall be taken by the customs body no later than the next working day from the date of revealing signs of violations of intellectual property rights, coming of the corresponding written appeal or performing the other action, being the basis for making the corresponding decision.

 

Article 310. The placement of the goods, output of which is suspended under the customs procedure of elimination.

 

During the period of suspension of the release of the goods in accordance with article 331 of the Customs code of the Customs Union or article 308 of this Federal law the declarant with the written consent of the right holder to eliminate the goods can declare the customs procedure for the elimination of the goods, the release of which is suspended. In this case the decision of the customs authority to suspend release of the goods shall be subject to cancellation.

 

 

 

Appendix to the Contract about the Customs code of the Customs Union,

enacted by the Decision of the Interstate Council of the Eurasian Economic Community

(The Supreme body of the Customs Union) at the level of the heads of the states as

of the 27th of November, 2009 N 17

 

THE CUSTOMS CODE OF THE CUSTOMS UNION

CHAPTER 46. THE PECULIARITIES OF CARRYING OUT CUSTOMS

OPERATIONS RELATED TO THE GOODS, CONTAINING

THE INTELLECTUAL PROPERTY ITEMS

 

 

Article 328. The measures for the protection of the intellectual property rights, taken by the Customs authorities

 

  1. The Customs authorities, within the limits of their competence, take measures for the protection of the right holders’ rights for the intellectual property items in the manner, established by this chapter.
  2. The measures for the protection of the intellectual property items rights are not applied by the Customs authorities in respect of the goods, transferred across the customs border:
  3. by individuals for personal use, including those that have been sent to their address in international mails;
  4. in accordance with the customs procedure of Customs transit;
  5. by the diplomatic representations, consular establishments, other official representative offices of the foreign states, international organizations, personnel of these representations, agencies and organizations for official and personal use.
  6. The measures for the protection of the intellectual property rights, taken by the Customs authorities, do not hinder the right holder to resort to any means of protection of their rights in accordance with the legislation of the states-members of the Customs Union.
  7. The Customs authorities take the measures for the protection of the intellectual property rights, the Customs register of which is kept  by these Customs authorities in the state-member of the Customs Union and the intellectual property items, included into the single customs register of intellectual property items of the states-members of the Customs Union and in accordance with the legislation of the states - members of the Customs Union also in respect of the intellectual property items, not included into such customs registers.

 

Article 329. The timing of the protection of the intellectual property rights by the Customs authorities

 

The timing of the protection of the right holder’s rights for the intellectual property items is established when including the intellectual property items into the Customs registers, maintained by the Customs authorities in the states-members of the Customs Union and the single customs register of intellectual property items of the states - members of the Customs Union, taking into account the timing, indicated by the right holder in the application, but no more than 2 (two) years from the date of inclusion into such registers.

The indicated period can be extended on the basis of the right holder’s application the unlimited number of times, but each time for no more than 2 (two) years, if the conditions, provided for in this chapter, are complied with.

The timing of the protection of the right holder’s rights for intellectual property items cannot exceed the right holder’s rights validity period for the appropriate intellectual property item.

 

Article 330. The Customs registers of the intellectual property items

 

  1. On the basis of the right holders’ applications the Customs authorities include the intellectual property items into the Customs register of intellectual property items, which is maintained in the customs authority of the state - member of the Customs Union in the manner and under the conditions, established by the legislation of the states - members of the Customs Union.
  2. The customs authority includes the intellectual property items into the Customs register of intellectual property items, which is maintained in the customs authority of the state - member of the Customs Union, which are subject to protection at the  territory of the state-member of the Customs Union, in accordance with the legislation of this state.
  3. The conditions of including the items of the intellectual property into the single Customs register of intellectual property items of the states-members of the Customs Union and the procedure of its maintaining are defined by the international contract of the states- members of the Customs Union.

 

Article 331. The suspension of the release of the goods, containing items of intellectual property

 

1 While committing the customs operations, connected with the placement under the customs procedures of the goods, containing the items of intellectual property, included into the Customs register, kept by the Customs authority of the state-member of the Customs Union, or into the single Customs register of the intellectual property items of the states-members of the Customs Union, the customs authority revealed the signs of violations of the intellectual property rights, the release of such goods is suspended for a period of 10 (ten) working days.

As per the request of the right holder or the person, representing his interests, this period can be extended by the customs authority but for no more than 10 (ten) working days, if the indicated people have applied to the authorized agencies for the protection of the right holder’s rights in accordance with the legislation of the states-members of the Customs Union.

The decisions to suspend the release of the goods and to extend the suspension of the release of the goods are made in the written form by the head of the customs authority or by the person, authorized by him.

2 The customs authority not later than 1 (one) working day, following the day of making the decision to suspend the release of the goods, containing the items of the intellectual property, shall notify the declarant and the right holder or the people, representing their interests, about such a suspension, about the reasons and the timing of the suspension, and also lets the declarant know the name (surname, name, patronymic name) and the location (address) of the right holder and/or the person, representing his interests, and lets  the right holder or the person, representing his interests know the name (surname, name, patronymic name) and location (address) of the declarant.

3 Upon the expiration of the suspension of the release of the goods, containing the items of intellectual property, the release of such goods is recommenced in the order, stipulated by this Code, except for the  cases when the customs authority has been provided with the documents, confirming the withdrawal of the goods, the imposition of arrest on them or confiscation of them or the other documents in accordance with the legislation of the states-members of the Customs Union.

4 The Customs authorities have the right to suspend the release of the goods, containing the items of the intellectual property, not included into the Customs register of the intellectual property items, which is maintained by the Customs authority of the state-member of the Customs Union and the single Customs register of intellectual property items of the states-members of the Customs Union, without the right holder’s application in the manner, determined by the legislation of the states-members of the Customs Union.

5 The right holder in accordance with the civil legislation of the states-members of the Customs Union is responsible for the property damage (damage) caused to the declarant, owner, recipient of the goods, containing the items of intellectual property, as a result of the suspension of the release of the goods in accordance with this chapter, if the violation of right holder’s rights will not be determined.

 

Article 332. Cancellation of the decision about the suspension of the release of the goods, containing items of intellectual property

 

1 The decision to suspend the release of goods is to be canceled prior to the expiration of the suspension of the release of goods if:

1) the customs authority received the application of the right holder or the person, representing his interests, about canceling such a decision;

2) the intellectual property item is excluded from the Customs register of the intellectual property items, which is maintained by the Customs authority of the state-member of the Customs Union and the single Customs register of the intellectual property items of the states-members of the Customs Union;

3) the other cases are determined by the legislation of the states - members of the Customs Union.

2 Cancellation of the decision to suspend the release of the goods shall be drawn up in the written form by the head of the customs authority or by the person, authorized by him.

  1. After canceling the decision about the suspension of the release of the goods the release of such goods is recommenced and it is carried out in accordance with this Code, unless otherwise provided for in the legislation of the states-members of the Customs Union.

 

Article 333. Provision of the information, taking samples and specimens of goods

 

  1. The customs authority provides to the declarant, to the right holder or to the person, representing his interests, the information about the goods in respect of which the decision to suspend the release has been made.
  2. The information, received by the declarant, by the right holder or by the person, representing his interests, is confidential in accordance with this article and shall not be disclosed by them, shall not be shared with the third parties, as well as with the state authorities, except for the cases, provided for in the legislation of the states-members of the Customs Union.
  3. With the written permission of the customs authority the right holder, the declarant or their representatives have the right under the customs control to select the samples and the specimens of the goods, related to which it was decided to suspend their release, to perform their research, as well as to view, to make photos or to otherwise record-keep such goods.

 

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