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Сегодня 22 июня 2017 года

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Regulation on protection of intellectual property rights by customs authorities

1. General Provisions

 

1. Regulation on Protection of Intellectual Property Rights by Customs Authorities (hereinafter referred to as the “Regulation") has been elaborated on the basis of the customs legislation of the Russian Federation and laws of the Russian Federation on intellectual property, as well as on the basis of international treaties to which the Russian Federation is a party and other commitments of the Russian Federation for the purpose of protecting intellectual property rights and counteracting illegal carriage of goods containing objects of intellectual property across the customs border of the Russian Federation (hereinafter referred to as the “customs border”).

2. In accordance with the Customs Code of the Russian Federation (hereinafter referred to as the “Code”), the Regulation stipulates a unified procedure for ensuring the protection of intellectual property rights by the customs authorities, including the procedure for filing application for action to suspend release of goods, requirements in respect of the content of such application depending on the type of intellectual property and the procedure for maintaining the register of intellectual property objects.

 

3. The rightholder has the right to file an application for action to suspend release of only those goods which contain objects protected by copyright and related rights, trademarks, service marks, appellations of origin and in respect of which the rightholder has valid grounds to suspect that carriage of such across the customs border or any other operations with such goods under customs control may entail violations of the exclusive rights of the rightholder under the laws of the Russian Federation on intellectual property (hereinafter referred to as “suspected counterfeit goods”).

4. Customs authorities shall take measures to suspend release of suspected counterfeit goods on the basis of the application filed by the rightholder or his representative.

5. Measures to suspend release of suspected counterfeit goods shall be taken by the customs authorities in the course of carriage of or other operation with the goods being under customs control.

According to Article 360 of the Code, goods imported into the customs territory of the Russian Federation shall be considered to be under customs control from the moment of crossing the customs border when entering the customs territory of the Russian Federation until:

-         release thereof into free circulation;

-         destruction thereof;

-         renouncement of the rights thereto for the benefit of the state;

-         transfer thereof to federal ownership or disposal in any other way in accordance with the customs laws of the Russian Federation

-         such goods and means of transport actually leave the customs territory of the Russian Federation

Russian goods and means of transport shall be considered to be under customs control in the course of exportation thereof from the customs territory of the Russian Federation from the moment the customs declaration is accepted or other action aimed at exporting the goods from the customs territory of the Russian Federation is taken and until crossing the customs border.

6. Measures to suspend release of suspected counterfeit goods shall be taken by the customs authorities regardless of the declared customs regime or any other customs procedure under which the goods are placed.

7. Measures taken by the customs authorities to suspend the release of suspected counterfeit goods shall not prevent the rightholder from protecting his rights under the laws of the Russian Federation.

8. For the purpose of providing protection of intellectual property rights, methods of risk analysis can be applied in order to determine goods, documents and natural persons subject to inspection, as well as the extent of such inspection.

 

II. Filing Applications for Action to Suspend Release of Goods, Procedure for Processing Applications and Decision Making.

 

9. Where the rightholder or his representative (hereinafter referred to as the “applicant”) has valid grounds to believe that the carriage of goods across the customs border or any other operations with goods under customs control may entail violation of the rightholder’s rights under the laws of the Russian Federation on intellectual property, he shall have the right to file an application for action to suspend release of such goods (hereinafter referred to as the “Application”).

10. The Application shall be filed in writing with the State Customs Committee of the Russian Federation (SCC of Russia).

The Application and documents attached thereto shall be delivered directly to the SCC of Russia or sent by mail. The Application and documents attached thereto shall be prepared in compliance with the following requirements:

- copies of documents shall be of good quality and bear clear imprints of stamps or seals;

- the documents shall include an inventory specifying the number of pages in each document.

The Application and documents shall be placed into a cardboard folder or a heavy-paper envelope.

The Application and documents can be communicated by facsimile transmission provided that originals are subsequently presented in compliance with the requirements set forth in Item 33 of the present Regulation.

11. Applications filed by a legal entity shall be signed by its head or substitute thereof. The signature shall be certified by the imprint of the seal of the legal entity.

12. Applications on behalf of the rightholder who is a foreign entity, for whom representation on the territory of the Russian Federation in the customs authorities under Items 59-64 of the present Regulation is not possible, can be filed through Russian legal entities having permanent a seat in the Russian Federation, or by natural persons residing in the Russian Federation, including those registered on the territory of the Russian Federation as individual businessmen.

13. The Application shall relate to one object of intellectual property only (objects protected by copyright and related rights, trademarks, service marks and appellations of origin).

14. The Application shall be prepared in Russian. In accordance with the present Regulation, certain data may be submitted in a language other than Russian.

Documents attached to the application or submitted to the SCC of Russia at the latter’s request shall be prepared in Russian. Where such documents are filed in another language, the application shall be accompanied by their translation into Russian.

15. The Application shall contain data:

- on the applicant;

- on the intellectual property object;

- on suspected counterfeit goods;

- on estimated duration of measures to suspend release of suspected counterfeit goods.

16. For the purpose of the present Regulation, the data on the applicant shall include full official name of the legal entity with an indication of its organisational-legal form (in accordance with the foundation documents of the legal entity) or family name, first name and patronymic (if any) of the natural person.

For Russian legal entities, the following information shall be presented:

- location;

- postal address;

- telephone, fax and telex numbers, e-mail address and other data necessary for the customs authorities to notify of suspension of the release of goods;

- data on state registration;

- data on registration of the entity with the tax body as a taxpayer and taxpayer’s identification number (INN).

For Russian natural persons, the information shall also include identification for the citizen of the Russian Federation, the document’s number, date of issue, the issuing authority, date and place of birth of the person, registered place of residence, postal address and INN (if any).

17. Where the applicant is the representative of the rightholder, the data on the rightholder shall also be provided, as stipulated in Item 16.

Where the rightholder is a foreign organisation, the Application shall specify:

- full and short name and organisational-legal form thereof in Russian and foreign language versions (in Latin transcription);

- full address of the foreign organisation in the country of registration in Russian and foreign language versions (in Latin transcription);

- data on registration on the basis of the trade register data or certificate of incorporation, or any other document of similar nature of the corresponding country of origin containing information on the agency which registered the foreign legal entity, registration  number, date and place of registration.

Where the rightholder is a foreign natural person, full name and place of residence thereof shall be specified.

18. The Application shall include the following data on intellectual property objects:

1) in respect of objects of copyright:

- form of work (written work, audio- or video record, an image, three-dimensional work, etc.);

- type of work (literature, computer program, music, audiovisual, painting, sculpture, graphics, design, photography, etc.);

- name of each specified object;

- description of each specified object;

- data on documents certifying the rights of the applicant to the goods in question;

- data on contracts on transfer of rights;

- data on documents proving introduction of goods containing objects of copyright  into civil circulation  on the territory of the Russian Federation by the rightholder or with his consent.;

2) in respect of objects of related rights:

- form of work (audio- or video record, etc.);

- type of work (computer programs, musical works, audiovisual works, etc.);

- name of each specified object;

- description of each specified object;

- data on documents certifying the rights of the applicant to the goods in question;

- data on contracts on transfer of rights;

- data on documents proving introduction of goods containing objects of related rights  into civil circulation  on the territory of the Russian Federation by the rightholder or with his consent.;

3) in respect of trademarks and service marks:

- name (indication or image)  of trademarks (service marks);

- description of trademarks (service marks);

- list of goods and services to which a trademark or a service mark is applied with an indication of classes thereof in accordance with the International Classification of Goods and Services (ICGS);

-   data on documents proving registration of trademarks (service marks) in compliance with the laws of the Russian Federation and international treaties to which it is a party;

-   data on assignment contracts in instances where exclusive rights have been acquired under a contract of trademark assignment;

-   data on license (sub-license) contracts and licensees (sub-licensees);

-   data on documents confirming introduction of goods to which trademarks are applied into civil circulation on the territory of the Russian Federation by the rightholder or with his consent;

4) in respect of appellations of origin:

-         place of origin of the product;

-         list of goods and services to which appellation of origin is applied with an indication of their classes according to the International Classification of Goods and Services (ICGS);

-         data on documents proving registration and granting of the right of use of the appellation of origin under laws of the Russian Federation and international treaties of the Russian Federation;

-         data on documents confirming introduction of goods containing appellations of origin into civil circulation on the territory of the Russian Federation by the rightholder or with his consent;

19. Data on suspected counterfeit goods, in respect of every object of intellectual property specified in the Application, shall include detailed information on goods in order to facilitate detection thereof by the customs authorities (description of the appearance thereof (packaging, label, etc.), indication of authorised importers having consent of the rightholder to introduce the goods into civil circulation, of exporters, producers, etc.), including codes of the goods starting from not less than the first four signs in accordance with the Commodity Nomenclature of Foreign Economic Activity of the Russian Federation (CN FEA of Russia), as well as on probable  points of importation into the customs territory of the Russian Federation (exportation from the customs territory of the Russian Federation) and on the importers of goods, should such information be available.

20. Data on the expected duration of measures connected with the suspension or release of goods shall be the period of time during which, in the opinion of the applicant, protection by the customs authorities of the intellectual property objects stated in the Application by taking measures to suspend release of suspected counterfeit goods will be required.

The period of time set forth in the Application shall not exceed the duration of legal protection of the intellectual property object.

21. Data stipulated in Items 16 - 20 of the present Regulation can be presented in the form of separate annexes to the Application, in which case the Application shall contain an indication of the number of annexes thereto, titles thereof and the number of pages in each annex.

The data can be prepared in the form of notarised copies of documents (guarantee letters, warranties, affidavits, comparison tables, colour photographs, etc.) proving the above data. In this instance the Application shall include a reference to such documents, while the documents shall attached as Annexes to the Application.

22. The Application shall be accompanied by documents certifying the right to the objects of intellectual property specified in the Application.

23. Documents certifying the right to the objects of intellectual property specified in the Application may include, without limitation, documents proving presented data on the rightholder, and, depending on the type of intellectual property object:

1) in respect of objects of copyright:

- certificate of depositing copies or a certificate of official registration of computer programmes and databases;

- notarised acknowledgment of facts;

- a sample of manufactured and issued copies of the work on the territory of the state;

- labour contract (civil contract) in respect of work produced within the scope of employment;

- a document confirming the transfer of copyright;

- exclusive (non-exclusive) copyright transfer agreement;

- written or material evidence (manuscripts, music notation, images, schemes, reviews, recorded data on the manuscript movement, etc.);

- reports by experts,  organisations or associations exercising copyright management or professionally dealing with copyright protection;

2) in respect of objects of related rights:

- a document on depositing  copies;

- notarised acknowledgment of facts;

- contracts with performers, studios, producers of phonograms and other rightholders;

- labour contract (civil contract) in respect of work produced within the scope of employment;

- contracts on the transfer of rights;

- documents certifying authorisation to use phonograms;

- samples of phonograms;

- reports by experts,  organisations or associations exercising professional protection of related rights;

3) in respect of trademarks and service marks:

- trademark (service mark) certificate ;

- extract from the State Register of Trademarks and Service Marks of the Russian Federation;

- extract from the List of Well-Known Trademarks in the Russian Federation;

- contract on trademark assignment;

- license agreements on the use of trademark;

- sub-license agreements on the use of trademark;

- documents proving the introduction of goods to which trademarks are applied into civil circulation on the territory of the Russian Federation by the rightholder in person  or with his consent;

4) in respect of appellations of origin:

- certificate attesting the right to use the appellation of origin of a product;

- extract from the State Register of Appellations of Origin of Goods of the Russian Federation.

24. Where the Application is filed on behalf of the rightholder, apart from documents proving presented data on the rightholder, it shall be accompanied by documents proving presented data on the representative, as well as by a power of attorney issued to such representative by the rightholder.

25. In compliance with Paragraph 4, Article 394 of the Code, the Application shall be accompanied by a written obligation  issued by the rightholder to compensate for property damage which might be caused to the declarant, owner, recipient of goods or a person specified in Article 16 of the Code as a result of the suspension of release of goods in the event that the procedure initiated pursuant to the laws of the Russian Federation does not determine that the goods, in respect of which the decision to suspend release (including the release of their packaging and label) has been adopted, are counterfeit (hereinafter referred to the “obligation”).

Where there is a duly executed power of attorney giving authority to represent the interests of the rightholder in the customs authorities of the Russian Federation or any other document (license or copyright agreement, commercial representation agreement, etc.) delegating such powers, the obligation may be issued by the applicant.

26. Attached to the Application shall be a document confirming proper execution of the obligation stipulated in Item 25 of the present Regulation, or a contract of insurance against the risk of liability for causing harm in favour of persons specified in paragraph 4, Article 394 of the Code.

27. Documents can be presented by the applicant in the form of originals or copies attested in compliance with the established procedure. When copies attested by the applicant are presented, originals of such documents can be requested, subject to subsequent return to the applicant after verification of the compliance of the copies of the documents with the originals thereof.

Extracts from the registers (lists) specified in Item 23 of the present Regulation shall be issued as of a date not earlier than one month prior to the date of filing the Application.

28. The applicant may attach to the Application samples of suspected counterfeit goods, as well as samples of authentic goods for the purpose of comparison thereof and detection of differences.

29. The applicant shall notify the SCC of Russia in writing within five working days of any changes in the data presented in the Application or submitted documents during the time of processing of the Application.

30. The Application shall be subject to consideration by the Main Department of Tariff and Non-Tariff Regulation of the SCC of Russia (MDTNR) on behalf of the SCC of Russia.

31. Only Applications duly prepared and filed in compliance with the present Regulation shall be accepted.

Under Paragraph 5, Article 394 of the Code, the Application shall be considered within one month from receipt thereof.

32. Documents submitted to the SCC of Russia after the Application has been filed (hereinafter referred to as the “materials”) shall include the number of the Application and the date of filing thereof and shall be signed by the applicant.

Materials without the number of the Application and the date of filing thereof shall be returned without consideration in the event the date and number cannot be determined.

33. Materials can be communicated by facsimile transmission provided the originals are submitted within fifteen days from the date of receipt thereof by facsimile transmission together with a cover letter identifying the materials received by facsimile transmission. Provided this requirement is met, the date of receipt of materials shall be the date of receipt thereof by facsimile transmission.

Where materials are received after the expiry of the specified period of time or are not identical to the materials received by facsimile transmission, such materials shall be deemed received as of the date of receipt of originals thereof, and the content of materials received by facsimile transmission shall not be taken into consideration subsequently.

Materials communicated by facsimile transmission shall be considered received upon receipt of the originals thereof.

In the event that materials communicated by facsimile transmission or a part thereof are not legible or are not received, the corresponding materials or part thereof shall be considered received on date of receipt of the originals thereof.

34. The Application without attached obligation stipulated in Item 25 of the present Regulation and a power of attorney in the instance provided for under Item 24 shall not be considered.

35. Before the decision is made, verification shall be made of presented data and attached documents and of compliance thereof with the requirements established by laws of the Russian Federation.

Presented data and documents shall be considered accurate until proven otherwise.

36. In the event that necessary data or documents are not provided or there are sufficient grounds to question the accuracy of documents or data presented by the applicant, such documents and data or confirmation of accuracy thereof may be requested from the applicant or, where the applicant is his representative of the rightholder, directly from the rightholder.

In the event that the applicant fails to reply to the request to submit necessary documents and data or proof of their accuracy within one month from the date of receipt of such request and does not submit an appeal for extensions of the term of executing the request, the Application shall be declared withdrawn and shall not be subject to subsequent consideration and a corresponding notification thereof shall be communicated to the applicant.

37. For the purpose of verification of the data presented by the applicant during processing of the application, a third party or state authorities of the Main Department of Tariff and Non-tariff Regulation can be requested to provide documents proving data presented in the Application.

Requested documents can be communicated by facsimile transmission, provided that the requirements set forth in Item 33 of the present Regulation are met.

38. In the event a request for documents and data is sent, the term for processing the Application can be extended but not more than to two months.

39. The decision to take measures to suspend the release of goods or to reject the application for action shall be made by the head of the MDTNR or, in the event of absence thereof, by his deputy.

Where the requested documents provided for in Item 37 of the present Regulation are not received, the decision on the Application under consideration shall be taken in accordance with paragraph 2, Item 35 of the present Regulation.

40. Should a decision in favour be adopted, the duration of protection of intellectual property object shall be determined depending on the validity term of presented documents, which are the basis for adopting the decision. The above term cannot exceed five years from the date intellectual property objects are entered in the customs register of intellectual property objects.

The above term can be extended on the basis of an application filed in writing not less than two months prior to the expiry of the previous term, provided that the requirements stipulated in Article 394 and Paragraph 2, Article 395 of the Code and the present chapter are complied with.

41. There must be grounds for a decision to reject an application for action to suspend the release of goods.

42. The applicant shall be notified of the adopted decision in writing within three days after the adoption.

43. Within five days from the receipt of notification of a positive decision the applicant shall submit a document securing the performance of the obligation specified in Item 25 of the present Regulation, or a contract of insurance against the risk of liability for damage in favour of the persons specified in paragraph 4, Article 394 of the Code, unless presented earlier.

44. The applicant shall notify the SCC of Russia in writing of any changes in the data indicated in the Application or in the documents attached thereto after the adoption of a decision in favour on the next day after such changes have occurred.

 

III. Customs Register of Intellectual Property Objects

 

45. With regard to Article 395 of the Code, an intellectual property object shall be entered into the customs register of intellectual property objects (hereinafter referred to as the Register) within three days after the adoption of a positive decision or the receipt of the document specified in Item 43 of the present Regulation, depending on which of the foregoing shall occur later.

The fee for entry into the Register shall not be charged.

46. The Register shall be maintained by a specialised subdivision of the MDTNR electronically and in hard copy format in the form of a log book.

The pages of the log book shall be numerated and signed by the head or deputy head of the MDTNR.

Any amendments and changes thereto shall be signed by an authorised MDTNR official.

47. The following data shall be entered into the Register:

- registration number according to the Register;

- name (description, image) of the intellectual property object;

- data on the rightholder (name of the organisation with an indication of its organisational-legal form or family name, first name and patronymic of a natural person, place of residence and postal address thereof);

- name, number and data of the document certifying legal protection of the object by intellectual property rights (in the instances provided by laws of the Russian Federation);

- the term during which the object of intellectual property shall be recorded in the Register;

- list of goods in respect of which measures are being taken (the name, the class according to the International Classification of Goods and Services and the code under the CN FEA of Russia);

- data on persons representing the interests of the owner of the intellectual property object by virtue of power of attorney (name of the organisation with an indication of organisational-legal form thereof or the family name, first name and patronymic of a natural person, place of residence, postal address, number of telephones, faxes, telex and electronic mail address thereof, etc.);

- number and date of the letter from the MDTNR on the intellectual property object entered into the Register addressed to the customs authorities in compliance with Item 51 of the present Regulation.

48. Registration number of an intellectual property object shall be indicated in the following way:

00000/ZZZZZ-AAA/XX-DDMMYY,

where: 00000  means a five-digit number of record assigned to the intellectual property object in increasing order, regardless of the type thereof;

ZZZZZ means decision number in increasing order;

ААА means ordinal number of the intellectual property object in one decision category;

XX means the type of intellectual property object:

AP means the object of copyright;

SP means the object of related rights;

TZ means trademark (service mark);

NP means appellation of origin of goods;

DDMMYY –means day, month and two last digits of the year when the object of intellectual property was included into the Register.

49. Intellectual property objects are subject to removal from the Register at the request of the applicant, as well as upon expiry of legal protection of the object by intellectual property rights, or in the instance when inaccuracy of presented data is revealed, or the requirement to provide security for performing the obligation specified in Item 25 of the present Regulation or a contract of insurance against the risk of liability for causing harm in favour of the persons specified in paragraph 4, Article 394 of the Code is not complied with, or if the rightholder or his representative, upon the receipt of the notification (notice) did not appeal to the body authorised in accordance with laws of the Russian Federation for protection of his rights within the period of suspension of release of goods.

Removal from the Register shall be effected upon decision made in writing by the head (deputy head) of the MDTNR, provided that there are grounds specified in the present Item. A notification of the removal from the Register specifying the grounds for such action shall be communicated to the applicant within three business days from the date of the adoption of such decision.

50. Amendments and/or addenda into the Register can be introduced on the basis of information presented by:

- the applicant on changes in the data indicated in the Application, documents attached thereto or other materials;

- law-enforcement agencies or other state authorities and organisations to the effect that the rights of persons entered into the Register as rightholders to the intellectual property object have terminated or have been limited.

Amendments and/or additions into the Register shall be introduced on the basis of the decision of the head (deputy head) of the MDTNR, of which the applicant and customs authorities shall be notified in writing within three days from the adoption thereof.

Amendments into the Register may be introduced after verification of the presented information on the basis of the decision made by the head (deputy head) of the MDTNR.

The term during which an object of intellectual property shall be recorded in the Register can be suspended for the period of time necessary for verification, of which the applicant and customs authorities shall be notified by the end of the next business day. Measures to suspend the release of goods shall be taken within the time limit set in Item 40 of the present Regulation.

51. Information on intellectual property objects included into the Register and data necessary for taking measures to suspend the release of goods, as well as information on the removal of an intellectual property object form the Register or changes in the data necessary for taking measures to suspend the release of goods shall be forwarded by the MDTNR to the customs authorities within one business day following the date of entry (removal) of an intellectual property object into/from the Register or the occurrence of changes.

52. The Press-Service of the SCC of Russia shall carry out publication of the list of intellectual property objects included into the Register in official editions of the SCC of Russia. Certain data can be published on the Internet-site of the SCC of Russia.

 

IV. Measures to Be Taken by Customs Authorities

When Detecting Suspected Counterfeit Goods

 

53. Goods containing objects of intellectual property and carried across the customs border shall be subject to customs processing and control in the procedure established by the customs laws of the Russian Federation.

In accordance with Paragraph 2, Article 125 of the Code, for the purpose of ensuring effective control over the observance of the customs laws of the Russian Federation, the SCC of Russia shall be empowered to assign special customs authorities for declaring goods should it be necessary to exercise special control over certain goods containing objects of intellectual property in accordance with the list established by the Government of the Russian Federation.

54. Goods containing objects of intellectual property entered into the Register shall be declared separately from other goods by filing either a separate cargo customs declaration (CCD) or an additional sheet to the main CCD.

In compliance with the customs laws of the Russian Federation the SCC of Russia shall be empowered to determine special requirements for declaring goods containing certain types of intellectual property objects.

55. In the event that a customs official, when checking the CCD and documents attached thereto and/or in the course of customs examination, detects suspected counterfeit goods, the release of such goods shall be suspended for ten business days.

56. Goods in respect of which the decision on release suspension has been made shall acquire (maintain) the status of goods in temporary storage.

57. Decision to suspend the release of goods shall be made by the head of the customs body or substitute thereof and shall take the form of a resolution on the report specifying reasoned substantiation of suspension of the release of goods and prepared by a customs official body immediately after detecting the signs of counterfeit goods. The decision shall be adopted by the end of the day on which the report is prepared.

The period of validity of the decision to suspend release of goods shall commence on the next business day following the date of its adoption.

58. The CCD or the additional sheet thereto in respect of goods under suspension procedure shall bear the stamp “Release is Suspended”, with an indication of the date on which the decision was adopted, attested with the signature and the imprint of the personal numbered seal of the customs official responsible for the release of goods.

The release of remaining goods, in the event they are declared in one SCC, shall be carried out in compliance with the customs laws of the Russian Federation regardless of the decision on release suspension adopted in respect of suspected counterfeit  goods. The main sheet of the SCC shall be attested by a standard stamp certifying the release of goods with a note “Except for additional sheet No.___”.

59. Notification of the suspension of the release of goods shall be delivered to the declarant and the rightholder (his representative) within the next day following the adoption of the decision on suspension.

60. The notification shall contain the following data:

1) for the declarant:

- description of goods in respect of which the decision to suspend release was adopted, with an indication of documents related to the goods, sufficient for identification thereof,  with an indication of the object of intellectual property included into the Register, in respect of which goods are suspected of being  counterfeit;

- revealed signs of infringement;

- the term of suspension of release of goods and the date of adopting corresponding decision;

- name (family name, first name and patronymic) and address of the rightholder (his representative);

2) for the rightholder (representative of the rightholder):

- name of the customs body which adopted the decision on suspension of the release of goods, postal address, numbers of telephones, faxes and telex and electronic mail address thereof, etc;

- name (family name, first name and patronymic) and address of the declarant of goods;

- location of the goods under suspension procedure, with an indication of the address;

- description of the goods in respect of which it was decided to suspend the release, with an indication of the intellectual property object included into the Register in respect of which goods are suspected of being  counterfeit;

- revealed signs of counterfeit goods;

- the term of suspension of release of goods and the date of adopting corresponding decision;

61. In the event that personal delivery of notifications is not possible, such notifications shall be communicated by a registered letter, by courier service or by any other means of communication allowing for prompt notification of the rightholder (his representative) and the declarant and for recording the date of receipt by them of the notification, in which case copies of notifications kept by the customs body shall be accompanied by documents confirming that the notifications have been sent by mail or by any other means of communications to the declarant and the rightholder (his representative).

62. Given the permission of the customs body in writing, the rightholder and the declarant (their representatives) may take, under customs control, tests, samples and specimen of the goods suspended from release, to conduct investigations, as well as to examine, photograph or otherwise fix such goods.

63. At the request of the rightholder (his representative) the customs body may provide additional information which might be necessary for the rightholder to prove the infringement of his rights (information on the manufacturer, sender, quantity, etc.), save for the instances provided by the federal laws.

Information obtained by the rightholder (his representative) or declarant shall be confidential and shall not be subject to disclosure or transfer to a third party or state authorities, save for the instances provided by the federal laws.

64. Where the rightholder applies for protection of his rights and/or by judicial bodies or any other bodies authorised by the laws of the Russian Federation to initiate administrative and/or criminal proceedings, the rightholder (his representative) shall be entitled to submit to the customs body, prior the expiry of the term of suspension of the release of goods, a written statement of motivation to extend the duration of suspension of the release of goods with an indication of the term of such extension.

65. The decision to extend the term of suspension of the release of goods shall be adopted by the head of the customs body or substitute thereof and shall take the form of resolution “To extend to___” made on the appeal of the rightholder (his representative), with an indication of the date of the expiry of the extended term determined on the basis of the term specified in the appeal.

The extension term of the suspension of release of goods shall not exceed 10 business days.

In this instance, on the place of the stamp “Release is suspended” the SCC shall make a note “extended to___” with an indication of the date to which the term of the decision on suspension of the release of goods is extended.

66. Where the customs body does not receive (adopt) the decision to seize, arrest or confiscate the goods prior to the expiry of the term of suspension of the release of goods, the decision on suspension of the release of goods shall be cancelled on the day following the date of expiry of the period of time for which the release of goods was suspended

67. The decision to suspend the release of goods shall be subject to reversal prior to the expiry of the suspension of release in the instances when:

1) the rightholder (his representative) addressed a customs body with a request to cancel the decision to suspend the release of goods;

2) intellectual property object is removed from the Register.

The decision to suspend the release of goods is subject to reversal on the date when the above grounds become known.

68. Reversal of the decision on suspension of the release of goods shall be effected by the head of the customs body who adopted such decision or by substitute thereof and shall take the form of the resolution on the corresponding request of the rightholder (his representative) or on the report by an authorised customs official, prepared on the day following the expiry of the term of suspension of the release of goods in the instance provided by Item 66 of the present Regulation or on the day when the removal of the intellectual property object from the Register became known.

After the decision is reversed, the release of goods shall be carried out in the procedure established by the customs laws of the Russian Federation.

After the decision on suspension of the release of goods declared on the additional sheet is cancelled, there shall be made a note indicating the date of release of such goods on the main sheet of the CCD below the note provided for by part 2, Item 58 of the present Regulation.

69. Where the goods are not confiscated or destructed after the seizure or arrest thereof in compliance with the civil laws and laws on criminal and administrative offences, the circulation of such goods on the territory of the Russian Federation shall be allowed after the release thereof by the customs authorities in compliance with the customs laws of the Russian Federation.

70. Within three days after the adoption of the decision to cancel suspension of the release or the adoption by authorised bodies of a decision to seize, arrest or confiscate goods, the customs body shall forward to the superior customs body the information related to the adopted decision on suspension of the release of suspected counterfeit goods, with an indication of the intellectual property object included into the Register; CCD numbers, items of suspected infringing goods; the date of notifying the rightholder (his representative), data on his act or omission; grounds for and date of adopting the decision to cancel suspension of the release;  numbers and dates of adopted decisions to seize, arrest or confiscate goods with an indication of  the body adopting such decision.

Regional customs divisions (RCD) shall submit to the MDTNR, within five working days of receipt of information from subordinate bodies, general information on the region of activity.

Subdivisions of customs and RCD, whose sphere of competence includes issues related to the protection of intellectual property, shall prepare files on intellectual property objects included into the Register grouped according to rightholders. The files shall reflect all facts in the region of activity, which occurred within the period of time during which intellectual property objects are recorded in the Register, related to the movement of goods containing intellectual property objects (including suspected counterfeit goods). RCD shall forward the information contained in the file to the MDTNR not later than two months prior to the expiry of the term during which the object of intellectual property shall be recorded in the Register.

 

 

V. Final Provisions

 

71. Pursuant to Article 400 of the Code, measures to suspend release of goods under the present Regulation shall not be applied by the customs authorities to goods containing objects of intellectual property and transferred across the customs border by natural persons or carried via international mail in insignificant amounts, where such goods are intended for private, family or household use or for the purposes other than commercial use.

Under Paragraph 2, Article 281 of the Code, the purpose of use of the goods shall be determined by a customs body on the basis of the declaration of the natural person in respect of goods transferred across the customs border, the nature of goods and their quantity, as well as frequency of carriage of such goods across the customs border.

72. In the event that customs authorities reveal signs of administrative offences (crimes), legal proceedings in respect of which are in the competence of other state authorities, the customs authorities shall, without delay, in compliance with Article 411 of the Code submit in the established procedure the information on the above to the corresponding state authorities.

73. As provided by Paragraph 3, Article 397 of the Code, the rightholder shall be liable under the civil laws of the Russian Federation for damages caused to the declarant, owner or consignee of goods or the person specified in Article 16 of the Code, resulting from suspension of the release of goods carried out in compliance with the present Regulation, unless it is determined in the procedure established by the laws of the Russian Federation that such goods (including their packaging and label) are counterfeit.

Damages resulting from lawful action of the customs authorities and their officials shall not be subject to compensation under Article 413 of the Code, unless otherwise provided by the Code or other federal laws.

74. In compliance with Article 413 of the Code, customs officials shall incur disciplinary, administrative, criminal and other liability under the laws of the Russian Federation for wrongful decisions, act or omission.

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