Counterfeiting is a world-wide phenomenon that involves the copying, cloning or impersonation of a genuine product without the consent of the owner. According to the World Customs Organisation, the international sales of counterfeit goods comprise a $600 billion industry representing between 5-7% of the total world trade. Chris de Beer and Irshaad Moidheen unpack the Act that is trying to curb the trade in counterfeit brands.
Counterfeiting has become so prevalent that it is now possible to find counterfeit goods in and around South Africa with relative ease. The copying or cloning of genuine goods has reached such a level of sophistication that ‘knock offs’ are hardly distinguishable from genuine goods.
South Africa has implemented the Counterfeit Goods Act, No 37 of 1997 (“the CGA”) in order to stem the tide of goods being counterfeited. Now owners of intellectual property can take action against infringers copying their intellectual property and to institute civil and criminal proceedings against the counterfeiters.
Counterfeiting is defined as the manufacturing, producing or making, without the authority of the owner, of any intellectual property right subsisting in the Republic, whether in the Republic or elsewhere, of any goods whereby those protected goods are imitated in such a manner, and to such an extent, that those goods are substantially identical copies of the protected goods.
This definition is wide enough to encapsulate a direct infringement of a protected good as well as a confusingly similar imitation of the protected goods.
There has been a concerted effort by the Department of Trade and Industry, Customs, SARS and the SAP to close this burgeoning business and The Commissioner of Customs and Excise has therefore actively implemented Section 15 of the CGA. Owners of trade marks and copyrighted matter may apply to SARS to seize and detain goods deemed to be counterfeit which are about to enter the country at one of the ports.
In order to make use of this mechanism, a Section 15 application is made with SARS. This contains the details of the copyrighted matter or trademarks and is lodged with SARS. In addition to a Power of Attorney an indemnity is required indemnifying the Customs authorities from any claims for wrongful or unfounded seizures.
With the rampant increase in counterfeiting, brand holders are urged to make use of all mechanisms available to protect their rights. Strict procedures and time frames are adhered to when goods are being seized and it is advisable to consult with professionals who can advise you whether correct procedures have been followed in the detention of counterfeit goods.
A failure to act decisively against counterfeiting may result in significant losses for owners of genuine branded items and long-term damage to their brands.
Chris de Beer and Irshaad Moidheen at Garlicke & Bousfield Inc
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