Prevention mechanism by the customs service of Turkmenistan violations of intellectual property rights when moving goods across the customs border of Turkmenistan1
I. Required documents for submission to the customs service of Turkmenistan in in order to prevent infringement of intellectual property rights
A statement on the adoption of measures related to the suspension of the release of goods, indicating complete data on the rightholderand the intellectual property object (name of the intellectual property object, name and contact details of the rightholder(address, phone, fax, e-mail).
The following documents and materials must be attached to the application: - copies of documents, certified by the rightholderor his representative, confirming the right to the object of intellectual property (certificate, patent, license agreement, etc.);
The most preferable is the certification of these documents by an authorized body or a notary. Legalization of documents is not required. - a written description of the genuine goods containing the object of intellectual property, with an attachment, if necessary, and their samples:
- written information that allows the identification of counterfeit goods, sufficiently detailed so that the customs authorities could identify such goods (if possible, attach samples of counterfeit goods that can serve as confirmation of the fact of violation of the rights of the rightholderand used by the customs authorities to identify genuine and counterfeit goods);
- the period during which the customs authorities will take measures to suspend customs clearance of goods containing intellectual property objects that violate the rights of the rightholder(the maximum period should not exceed five years from the date the intellectual property object is entered into the customs register)
- a written commitment to reimburse expenses in connection with the suspension of customs clearance of goods containing intellectual property, and if it is further proven that the goods are not counterfeit - the declarant's expenses and losses (it is also possible that an attachment to the obligation of a notarized liability insurance contract is required the owner of the intellectual property object for causing harm to others).
- a power of attorney certified by the rightholder or his authorized agent to represent the interests of the rightholder in Turkmenistan by his authorized person (dealer, distributor, representative). The most preferable is notarization of the power of attorney. Legalization of the power of attorney is not required. All of the above documents must be submitted in the Turkmen language. The mentioned documents can also be submitted in Russian or English with the attachment of their certified translation into the Turkmen language. Translation certification can be performed by the Chamber of Commerce and Industry of Turkmenistan or other institutions of Turkmenistan authorized to carry out this procedure.
II. Official fees and cost of services
For inclusion in the customs register of an object of intellectual property - no fee is charged yet. The cost of services for preparing an application for the rightholderor his representative for filing with the customs service in relation to the prevention of his rights to intellectual property does not exceed $ 200
III. Representation of the interests of the rightholderin customs and other authorities when detecting counterfeit goods
Representation of the interests of the rightholderbefore the customs service and other authorities of Turkmenistan is carried out by his representatives (preferably lawyers, dealers, distributors) or official employees of the representative office of a foreign company in Turkmenistan.
The role of patent attorneys is mainly limited to drawing up an application for filing with the customs service, including providing advice to representatives of the copyright holder. However, if necessary, they can be involved as experts in the consideration of cases related to violation of the rights of rightholders in the court session, as well as as representatives of the owners of rights to intellectual property objects to prepare and submit applications to the customs service for the inclusion of these objects in the customs register.
IV. Terms of preparation and consideration of applications.
The terms for preparing applications for filing with the customs service are determined by the number of intellectual property objects. If the rightholderhas submitted all the necessary documents and materials for drawing up applications, then these terms are within the range of three to ten days. The term for consideration of applications by the Customs Service of Turkmenistan is one month from the date of their receipt. Based on the results of consideration of applications, a decision is made to refuse to take measures or to enter the intellectual property object in the customs register and take measures to prevent violation of the rights of the rightholderwhen moving goods across the customs border of Turkmenistan
V. Procedure for the suspension of the release of counterfeit goods
The customs service of Turkmenistan works only on the objects of intellectual property entered in the customs register. On its own initiative, the customs service does not initiate cases of an administrative or criminal offense related to infringement of intellectual property rights. The initiation of such cases is entirely the responsibility of the copyright holder.
If, during customs clearance and customs control of goods entered in the register, the customs service detects signs that the goods are counterfeit, then the release of such goods is suspended and the goods are placed in a temporary storage warehouse.
The decision to suspend the release of goods for up to ten working days is made by the head of the customs service that carries out customs clearance, or a person replacing him. At the request of the rightholderor his representative, the specified period may be extended, but not more than ten working days.
The customs service, no later than one business day from the date of the decision to suspend the release of goods containing intellectual property objects, notifies the applicant and persons moving goods across the customs border of Turkmenistan of the suspension and its reasons, and also informs the person moving goods across the customs border of Turkmenistan the name and the address of the rightholder, and the rightholder the name and address of the person moving the goods across the customs border of Turkmenistan. The rightholderand the declarant are also provided with other information that can be used to determine whether the goods are counterfeit or genuine.
VI. Provision of information. Sampling and sampling
The customs service provides the right holder and the person moving goods across the customs border of Turkmenistan with information about the detected signs of counterfeit goods, in respect of which a decision has been made to suspend release.
The information received by the rightholder or declarant is confidential and should not be disclosed or transferred to third parties, as well as to state bodies, with the exception of cases stipulated by the legislation of Turkmenistan.
The rightholder and his representatives have the right, with the written permission of the customs authority, to take samples and samples of goods under customs control, in respect of which a decision has been made to suspend release on grounds of counterfeit, and to conduct their research (inspect, photograph or otherwise record such goods).
VII. Settlement of the relationship between the declarant and the rightholder
If the pre-trial settlement of the relationship between the rightholder and the declarant by customs and administrative authorities is impossible, the final decision on the violation of intellectual property rights is made by the court, and civil and criminal cases are initiated by the internal affairs bodies and the prosecutor's office.
In the latter case, the rightholder applies to law enforcement agencies with a statement of claim or a statement to initiate a criminal case. The customs service enforces the decisions of these authorities (for example, the seizure of goods containing intellectual property), as well as decisions and sentences of the courts, providing for the confiscation or other seizure of goods.
VIII. Cancellation of the decision to suspend the issue
The decision to suspend the issue is subject to cancellation if during the term of the decision to suspend the issue:
1) the customs service receives an application from the rightholder to cancel the decision to suspend the release;
2) the intellectual property object is excluded from the register due to expiration or other reasons provided for by the legislation of Turkmenistan.
3) the applicant, within the period of suspension of the release of goods containing objects of intellectual property, has not provided evidence on the initiation of a case on a claim for infringement of intellectual property rights related to the fact of movement of the detained goods across the customs border.
In the above cases, the goods are subject to immediate customs clearance and release in the manner prescribed by the customs code of Turkmenistan.
The cancellation of the decision to suspend the release is carried out by the head of the customs service who made such a decision, or by a person replacing him on the day when it became known that there was a reason for making such a decision.
The release of goods cannot serve as an obstacle for the copyright holder to apply for the protection of his rights to intellectual property objects to the appropriate authorized state body.
The submitted document was drawn up on the basis of the procedures for entering intellectual property objects into the customs register, described in Chapter 37 of the Customs Code of Turkmenistan, and the procedure for suspending the release of counterfeit goods. At this time, the customs service is still working on the regulatory legal support for countering violations of intellectual property rights, in connection with which the fight against violators is carried out mainly through the appeal of interested persons to the judicial and law enforcement agencies of Turkmenistan.