Entering a trademark into the customs register is an additional level of protection against infringing merchandise
Each businessman is well aware of the fact that apart from the development business requires protection. A tremendous part of means invested to business development is spent for advertising and brand recognition. And more often than not, violators-pirates are trying to make use of these means. An enterpriser in this case loses customers both due to the drain of consumers because of brand similarity, and due to a damage to brand reputation, because, as a rule, counterfeit products are not distinguished by high quality.
By turning to experienced patent attorneys businessmen are trying to provide for an utmost legal protection of their brand. Nevertheless, even having documents of title to a trademark, possessors of rights often meet clones in the market. What happens afterwards? A process of removing counterfeit products begins. However, firstly, a certain volume of products has been already sold for this period, and, secondly, it is not possible to determine the actual quantity and territory of marketing the pirate goods. As a rule, counterfeit products are manufactured on territories of foreign and cheaper countries and are sold abroad as well. It is a hard task for a possessor of rights to check each country for the availability of forgeries. How then can an honest entrepreneur secure his business? For this there is an additional level of brand protection: entering a trademark into the customs register.
Entering information of his trademark into the customs register of some country, and also of a probable counterfeit, the possessor of rights precludes the inflow of forgery into the territory of this country. It seems that the enterpriser has secured his brand all around: registered the trademark and entered it into the customs register. Yet, there is something that points that may cool the admiration of the possessor of rights. First, entering the trademark into the customs register is accompanied with paying an insurance sum which, depending on a country, may reach the amount of 50 000 dollars per trademark, and secondly, not each country will enter information of trademarks into the customs register in advance. Based on this principle all countries may be divided into two large groups: those having a procedure of the preliminary entering of information about trademarks (and of a probable counterfeit) into the customs register and those which deal with counterfeit arrest only in case of its discovery (i.e. not dealing with preliminary tracking a counterfeit on an application from a possessor of rights without the established fact of his rights violation). In connection with this, to begin creating conditions for providing the brand with appropriate means of protection, a necessary territory of legal protection should be determined, i.e. a list of countries. These are countries where the trademark is used and where the rights of the possessor might be violated. To have a possibility to attract customs services for protecting the rights of the possessor against a counterfeit, it is necessary to have the registration of the trademark on the territory of this country. Thus first and foremost we register the trademark in a country concerned. After that we are turning to the national legislation and look, if there is a mere possibility of entering the trademark into the customs register by a simple application to the customs service, or it is still necessary to have a direct indication of a counterfeit product available. In this respect a second important factor that comes after the registration is the determination of customs services through which imported counterfeits are arriving and of a violator’s name. Only after this a legal instrument may be used: i.e. the detention of presumably infringing merchandise.
Since the legislation in this field is changing fast enough and accumulates experience, in the near future we will probably be able to make use of advantages of the single information space with optimal interaction of customs and patent services for protecting the interests of enterprises – possessors of rights to brands, for maintaining honest competition and creating favorable conditions for the development of young business and economy as a whole.
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