BORDER ENFORCEMENT IN JAPAN
Japan reported 1,147 counterfeiting and piracy cases involving Customs, ranking it sixth globally.
Statistics from Japan Figures from the Japan Customs 2012 Annual Report estimate the total value of goods seized by Customs that year at JPY19.5 billion ($191 million). Te report shows the number of items seized by Customs totalled more than one million, a 53.5 percent increase from the previous year. Te number of suspension cases also continues to grow, with a 14.3 percent annual increase.
Te consistent rise in the number of recorded Customs cases for the past six years is an indication of the increase in the use of Customs measures in combating counterfeiting. On average, more than 70 infringing cases and 3,000 infringing items are suspended by Japan Customs every day.
Small shipments sent by post In 2012, 93.4 percent of all seizure cases were transported by post as opposed to general cargo. In terms of the number of individual items seized, only 34.3 percent of them were transported by post. Tis indicates the continued increase in small-lot shipments of infringing goods. Although these statistics can be attributed in part to the increased use of e-commerce, Japan Customs has indicated that a number of individuals have tried to import counterfeit and pirated goods by disguising them as personal items. Tese trends have spurred Customs to strengthen enforcement on small-lot shipments.
Organization (WCO) has noted that counterfeiters are using the latest technology and are able to increase the quantity and quality of counterfeit goods. Tis article looks at current trends in the import of counterfeit goods and then delineates the procedures for right holders to protect their IP rights at Japan’s borders.
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According to the WCO’s 2013 Illicit Trade Report, there were 22,398 reported cases of counterfeiting and piracy in the top 15 reporting countries alone.
Te vast majority of counterfeit goods are sold in mature markets such as those of the US and Japan.
www.worldipreview.com .worldipr
xpanded market access has enabled counterfeit goods to flood the global marketplace. Te World Customs
Customs measures With the proliferation of the import of infringing goods, effective use of Customs measures can serve as a first line of defence, while preventing situations from escalating to a point where more costly litigation action becomes necessary. It is usually easier to prevent the distribution of infringing goods at ports of entry than aſter the goods have entered the country. A right holder’s aggressive approach to enforcement can oſten halt and even deter counterfeiters.
Customs measures can be used to protect patent rights, utility model rights, design rights, trademark rights, copyrights, plant breeder’s rights, unfair competition relating to famous indications
of goods, and configurations of goods. Japan Customs is vested with the
authority to decide the suspension and release of imported goods, to decide the merits of each case, and to execute such decisions. Tis integration of decision-making and execution authority empowers Customs to act quickly and circumvents lengthy court proceedings.
Initiating enforcement proceedings: ex officio action
Japan Customs is authorised to take ex officio actions to intervene on its own initiative to protect the public interest. In practice, ex officio suspensions are only implemented in cases involving imitations and pirated goods that obviously infringe IP rights. Customs officials may choose to err on the side of caution as Customs may be liable to exporters and importers for damage resulting from an erroneous suspension. As such, most suspensions for allegedly infringing goods are initiated by right holders themselves.
Initiating enforcement proceedings: application for suspension
IP right holders and certain exclusive licensees may initiate proceedings to suspend potentially infringing goods through an Application for Suspension tendered to any of the nine regional Customs headquarters.
Applicants for such suspensions must submit evidence establishing a prima facie showing of
infringement. In particular, applicants are
required to: (1) prove ownership of a valid IP right; (2) show the IP right has been or is likely to be infringed; and (3) provide information to accurately identify the infringing goods.
Customs will decide on the merits of the application within a month. If accepted, the application will remain in effect for two years, extendable by petition. During the effective term, Customs will monitor the import, export, and transit of those goods. If Customs detects suspected goods during the course of physical inspections, identification procedures will be initiated.
Identification procedures Customs decides whether the suspected goods infringe the applicant’s IP rights. When suspect goods are detected, Customs will hold the goods and notify the importer and the right holder of the initiation of identification procedures. Te
World Intellectual Property Review Annual 2014 29
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