Litigation finds counterfeiters one at a time, after the goods are already in the market. Customs recordal catches an entire consignment at the point where it is concentrated in one place with an identifiable importer attached. For any brand with a real counterfeiting problem, it is the highest-return enforcement step available.
The framework
With advancing technology and an expanding grey market, India faces large-scale infringement that affects the economy. Acting as gatekeeper, the Customs Department operates the Customs Recordal system to forestall cross-border movement of counterfeit or infringing goods.
Under Section 156(1) of the Customs Act, 1962, the Central Government made the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007, in line with TRIPS and the World Customs Organisation Model.
Under the Rules, “infringing goods” means goods made, reproduced, put into circulation or used in breach of intellectual property laws without the consent of the right holder or an authorised person.
What can be recorded. The Rules cover trademarks, copyright, designs and geographical indications. Patents were taken out of the mechanism by amendment in 2018 — assessing patent infringement is not something Customs officers can reasonably perform at the border.
The application process
A right holder submits a written application with the necessary documents and information. Applications are made through the online recordation portal, where the applicant registers to obtain a unique ID and password, then uploads documents with the completed forms.
A Unique Temporary Registration Number is generated, which — with physical copies of the documents — goes to the IPR cell of the relevant Custom House. Within 30 days, a Unique Permanent Registration Number issues, serving as conclusive proof of recordation.
Note on the portal: recordal has since migrated to the Automated Recordation and Targeting System (ARTS) under the Central Board of Indirect Taxes and Customs. Check the current portal and fee position before filing.
Documents required
- A copy of the registration certificate of the IP right, as proof of its existence;
- Power of Attorney in favour of the person filing, if required;
- images of genuine goods (for trademarks and designs);
- images of infringing goods, if available;
- hard copies of the complete set of documents uploaded online, submitted to the Customs office of the chosen location;
- the prescribed fee in favour of the Commissioner of Customs at that location;
- an indemnity bond, indemnifying the Customs authorities against all liabilities and expenses arising from suspension of clearance of allegedly infringing goods; and
- a general or centralised bond, to bear the costs of destruction, demurrage and detention incurred in destroying or disposing of infringing goods.
Information required
- Name and contact details of the applicant;
- details of the fee payment;
- the scope of the IP right being recorded;
- the differentiating features of genuine and infringing goods;
- the IEC code of the right holder and other authorised importers;
- for geographical indications, a description of the GI and the area of production;
- the grounds for suspension of release of allegedly infringing goods;
- a detailed description of the goods with the Customs Tariff Heading, together with a sample, model or photograph of a genuine product; and
- the product code of the goods being imported or exported.
The differentiating-features material is the item that determines whether a recordal actually works. Customs officers are not brand specialists; clear, practical identification guidance — packaging, labelling, security features, typical counterfeit tells — is what converts a recordal into a seizure.
Timelines
If required information is missing, the Deputy or Assistant Commissioner may require the right holder to supply it within 15 days, extendable for sufficient reason. Within 30 working days of receiving the notice, the Commissioner notifies the applicant whether it is registered or rejected, along with the validity period during which Customs assistance will be rendered.
Once registration is granted, import of allegedly infringing goods into India is deemed prohibited under Section 11 of the Customs Act, 1962.
When a consignment is suspended
This is where responsiveness matters most.
Where clearance is suspended and the right holder or authorised representative does not join the proceedings within ten working days, the goods are released. The Commissioner may extend that by another ten working days in appropriate cases. For perishable goods, the suspension period is three working days, extendable by four.
If the right holder does join, the Deputy or Assistant Commissioner — having reason to believe the goods infringe and are liable to confiscation under Section 111(d) — may seize them under Section 110.
The Commissioner permits both the right holder and the importer (or their representatives) to examine the goods. Where it is determined the goods infringe and they have been confiscated under Section 111(d), with no legal proceedings pending, the goods are destroyed or disposed of — with the costs of destruction, demurrage and detention borne by the right holder.
Exemption: goods of a non-commercial nature in personal baggage, or sent in small consignments for the importer’s personal use, are outside these Rules.
The practical point
Recordal is cheap relative to litigation and, once in place, works continuously without further action from you — until a consignment is stopped. At that moment the ten-working-day clock is unforgiving. A recordal is only as good as the named contact who can respond immediately, confirm the goods are counterfeit, and join the proceedings.
The takeaways
- Registration makes import of infringing goods deemed prohibited under Section 11.
- Trademarks, copyright, designs and GIs can be recorded; patents cannot.
- Ten working days to join proceedings — or the goods are released.
- Identification material decides effectiveness — officers are not brand specialists.
Frequently asked questions
Which IP rights can be recorded with Indian Customs? Trademarks, copyright, designs and geographical indications. Patents were removed from the mechanism by amendment in 2018.
How long does customs recordal take? A Unique Permanent Registration Number is issued within about 30 days of submitting the documents, and the Commissioner notifies registration or rejection within 30 working days of the notice.
What happens if I don’t respond when goods are detained? The goods are released if the right holder does not join the proceedings within ten working days — three working days for perishable goods.
Who pays for destroying counterfeit goods? The right holder bears the costs of destruction, demurrage and detention, which is why a bond is required at recordal.
Useful official resources
- Central Board of Indirect Taxes and Customs
- The Customs Act, 1962