SECTION 15 APPLICATION IN TERMS OF THE COUNTERFEIT GOODS ACT – QUENTIN BOSHOFF
Counterfeiting is a global problem and South Africa has, during the past few years, increasingly been targeted by unscrupulous businesses and organised crime syndicates as a dumping ground for copies of well-known brands. Counterfeiting and copying of famous brands has created a real danger for the individual purchaser, manufacturer and distributor.
If a customer is put at risk buying counterfeit goods, the brand owner or importer loses more than just potential sales. Counterfeiting undermines the public’s attitude towards a product and its worth. With the result the good reputation of a brand name is slowly eroded and undermined.
The Anti-Counterfeiting Unit of Bowman Gilfillan Inc. recently acted against a local importer and successfully confiscated approximately 15,000 counterfeit CD’s and PC games in one month. In total, last year the South African Customs & Excise seized a staggering total of R389 million worth of counterfeit goods. These figures serve as an example of the scope and extent of the problem.
The South African Revenue Services (the Customs Authorities) have recently implemented a policy whereby proprietors of intellectual property can now register their copyright and trade marks with the Customs Authorities in order to prevent and combat counterfeiting.
In the past our Customs Authorities reported counterfeit matters directly to the proprietor of the goods. This was an informal arrangement and the Customs Authorities have now formalised the relationship by implementing a new procedure. The new procedure requires a proprietor, or his authorised representative, of copyright works and trade marks to file an application with the Commissioner of the Custom Authorities. The application lists all the copyright and trade mark to be protected and requests the Customs Authorities to search and seize all suspected counterfeit goods. Our firm has filed a number of these applications on behalf of our clients. The numerous applications which we have filed to date have been monitored extremely effectively by the Customs Authorities.
The required application form lists all copyrighted matter and trade marks for protection is claimed. In addition to the application form, a power of attorney which authorises our firm to act on your behalf in respect of all seizures must be submitted. Furthermore, an indemnity is required. The indemnity serves to indemnify our Government (Customs Authorities) against any potential claim that may arise as result wrongful search and seizure. This includes hard costs such as storage, transport and if the matter is defended any legal costs incurred by Customs to oppose such an application.
Once the application form has been completed it will be filed with the Customs Authorities. The Customs Authorities will then examine the application and either approves or rejects it and advises us accordingly.
This application will secure the monopoly of brand holders and combat the dilution of brands by the importation of pirate or counterfeit goods.