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Thailand issues new customs rules for the seizure of counterfeit goods
12/09/2022
The Thai Customs Department has issued a notification that sets out changes to the customs recordation system and the procedures for the seizure of counterfeit goods.
The Customs Notification on the Export, Import, and Transit of Trademark- and Copyright-Infringing Goods was published in the Government Gazette on August 4, 2022, and will retrospectively be in force from July 29, 2022.
Key points
- IP rights holders can now record their intellectual property information with the Customs Department.
- IP rights holders may now also request the Customs Department to undertake inspections of imported goods which they suspect to infringe their rights.
- The new system of the Customs Department is expected to be launched around the end of September.
What has this Notification changed?
Prior to this Notification, trademark owners who were seeking customs recordation needed to record any relevant information with the Department of Intellectual Property (DIP). However, under the new notification, both trademark and copyright owners can now record their intellectual property information with the Customs Department directly.
What are the changes introduced in the Notification?
The Notification has introduced the following systems and procedures:
Customs Recordation System
Trademark and/or copyright owners (or their legal representatives) can now file an application stating any relevant information that customs officers can use to verify the authenticity of goods being exported, imported, or transited through Thailand.
Enforcement Division of the Customs Department
The information contained within the application will be kept for three years from the date of receipt (or for the remaining period of trademark or copyright protection, should this period be less than three years).
It is possible for renewals of the application to be submitted. These renewals must be filed no later than 30 days before the expiry date.
Ex Officio Impounding Procedure
When customs officers suspect any goods of infringing intellectual property rights (according to the information recorded by the above mentioned method), they will impound the goods and inform the exporter, importer, or transit person (or agent) as well as the trademark or copyright owner.
If it is not possible for the customs officers to contact the exporter, importer, or transit person (or agent), or if this person does not oppose the action within three days, the impounded items will be deemed to be infringing goods.
Furthermore, should the exporter, importer, or transit person admit that the goods are infringing any IP rights, the officers will prepare a memorandum of inspection and seizure or arrest and then forward the case to the litigation unit for further action. The officer does not require a confirmation letter from the rights owner in this case.
If the exporter, importer, or transit person (or agent) rejects the claim, they must file an opposition. This opposition must contain evidence showing that the goods are not infringing any IP rights within three days of acknowledging the notice sent by the officers. The officers will then inform the rights owner of the opposition. Should the rights owner still feel the offending party is in breach, they may pursue the case by filing a confirmation letter and a petition for prosecution within three days. Failure to do so will mean the impounded goods will be released. Rights owners may also request an extension of up to 10 days.
Rights owners can also apply on a case-by-case basis for customs inspections of goods suspected to be infringing their IP rights. Should the customs officers have no objection to the request, they will impound the goods and notify the exporter, importer, or transit person (or agent) as well as the applicant.
Upon receiving the notification, the applicant must inspect the goods within 24 hours. Should they fail to complete this inspection within 24 hours, the customs officers will release the impounded goods.
Should a breach be found to have occurred during the inspection, the customs officer will direct the rights owner (or its representative) to file a confirmation letter and a petition for prosecution from the authorities. This must be completed within three days of the inspection, otherwise the goods to be released.
Liability
Rights owners who apply to the customs department for recordation or an inspection will be responsible to the exporter, importer, or transit person (or agent) and the Customs Department for any damages that may arise from the inspection. This only applies to inspections carried out in good faith and in accordance with the application.
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