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Custom Recordal of IPRs in Tunisia


Custom Recordal of IPRs
The laws are as follows:
  • The Customs Code
  • The Trademark law No. 36 dated 17/4/2001
  • The Law no. 36 of 1994 on the Protection of Copyright and Related Rights
  • The Law No. 2000-84 of August 24, 2000, on Patents
Custom Recordal of IPRs is effective both on the import and export of goods.
The customs department/authority has to be vigilant about the goods entering into or exiting the country, including goods, which may be infringing the legitimate rights of the proprietor of intellectual property. The customs not only act in furtherance of an application but also through sou Motu initiative. Therefore, it is their role to intercept the items suspected of infringement, ensure their feature, and retain the shipping and other documents relating to the seized items. They also have the right to preventive restraint of objects assigned to penalties’ security. Officers cannot arrest the suspect unless in case of a flagrant offense.
The owner of a protected mark or any holder of a right thereof, who has serious proofs of an activity of supplying products bearing a counterfeit mark, may submit a written request to the government authorities requesting the halting of the government procedures related to the supply of the said goods.
The written request stipulated in article 56 of this law should include:
  • The name, surname, or known name of the requester and his place of business
  • A proof that the requester has a right with respect to the goods subject of the dispute
  • An accurate description of the goods to enable the authorities to identify them

The requester should provide all relevant advice to enable the authorities to make an enlightened decision, without the provision of this advice being a condition of accepting the request.
This advice should specifically include:
  • The location where the goods are present or to which they will be sent
  • The particulars, which make it possible to identify the shipped goods or packages
  • The specified date for the arrival of the goods or their shipping date
  • The means of transportation
  • The particulars, which make it possible to identify the supplier, source, or holder of the goods

The requester must also enclose with the request a pledge regarding fulfilling his possible responsibility towards the supplier if it is proven without a doubt that the goods subject to detention by the authorities do not represent infringement of the protected mark.
The authorities shall examine the request submitted according to the provisions of article 56 of the Trade Marks Law, and shall notify the requester immediately and in writing of their decision. This decision must be justified in writing.
The procedure for recording intellectual property rights with the customs is centralized.
There is no online system for recording intellectual property rights with the customs; instead, a written request in the form of an application has to be made.
The Customs authorities suspend the clearance of imported/exported goods, if it is found that the goods being consigned to or from Tunisia may be inclusive of the goods that infringe upon the intellectual property rights of a legitimate rights holder. Such suspension remains valid until all government procedures are completed and a final determination by the court is made.
The liabilities and expenses are borne by the requester.
The confirmation as to the goods being counterfeit is to be made within 10 days starting from the notification of the date of detention. The 10 days term may be extended for at most another 10 days in the cases that may require such an extension.
Such an order has to be secured within a period of 10 days, which is further extendable by 10 additional working days.
The amount of collateral is determined by the court considering that the same should cover the cost for legal precautionary procedures and also cover the responsibilities of the requester towards the concerned persons.
In such a scenario, the customs inform both the counterparts that the goods are suspected of infringement. Both the parties are then requisitioned to inspect the goods to prepare for the legal proceedings, which are to be initiated by the IP rights holder to claim damages and seek proper redressal.
Yes, the customs invite the rights holder and the importer to join legal proceedings in the appropriate court of law. Failure to join such a proceeding shall lead to the lapse of any measures being undertaken by the customs to prevent the release of such goods into the markets for their commercial access.
For establishing whether or not the goods are pirated, in addition to the affidavit by the IP rights holder, other documentary evidence may be needed to substantiate the claims.
The possible remedies awarded by the court are as follows:
  • Any person who imports or exports prohibited goods, including pirated goods, without the submission of manifest or through smuggling shall be liable to imprisonment for a term of 06 days to 01 month;
  • Forfeiture of goods by fraud;
  • The confiscation of means of the transport;
  • The confiscation of the objects used to conceal the fraud; and
  • A fine, the amount of which varies between one and two times the value of goods (Article 386 of the Customs Code).