Is Custom Recordal of Intellectual Property Rights (IPRs) available in Tunisia?
Is Custom Recordal of IPRs compulsory in Tunisia?
Is it an effective measure to stop the infiltration of illegal and counterfeit products in Tunisia?
Which law forms the legal basis for Custom Recordal of IPRs (Border Control Measures) in Tunisia?
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
Is Custom Recordal of IPRs effective on import or export of goods or both?
Custom Recordal of IPRs is effective both on the import and export of goods.
What is the role of the customs department/authority? (Kindly give 2-3 points)
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.
Is there a procedure to record IP with the customs department/authority? If yes, then kindly explain it in brief.
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.
What documents are to be submitted along with the application for Custom Recordal of IPRs?
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.
Is the applicant required to execute a bond (against all liabilities and to bear the costs towards destruction, demurrage, and detention charges incurred till the time of destruction or disposal) with the customs department/authority for Custom Recordal of IPRs?
What is the time frame for the customs department/authority to notify the applicants whether their application (for custom recordal of IPRs) is registered or rejected?
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.
Does the customs department/authority have a centralized system or the Custom Recordal is required to be done with each port of entry in Tunisia by land, sea, and air?
The procedure for recording intellectual property rights with the customs is centralized.
Is there an online system for Custom Recordal in Tunisia?
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.
What is the official fee for Custom Recordal in Tunisia?
What is the term of Custom Recordal of IPRs? Can it be further renewed?
Does the customs department/authority have a right to conduct raids and seize the counterfeit goods within Tunisia?
In which scenario does the customs department/authority suspend the clearance of imported goods?
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.
Who bears the liabilities and expenses related to suspension of the release of infringing goods?
The liabilities and expenses are borne by the requester.
Is the IP rights holder authorized to examine the goods, the clearance of which has been suspended?
Is the IP rights holder authorized to request the information about the personal details of the importer and additional crucial piece of information concerning the consignment, which has been suspended from clearance?
Can the importer or the authorized representative of the goods, which have been suspended from clearance, request the information of the IP rights holder in question?
Within what timeframe the IP rights holder needs to confirm whether the goods are counterfeit or original after suspension?
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.
Is the IP rights holder required to produce an injunction order or evidence of court proceedings to detain the goods?
If the answer to the above question is 'Yes,' then what is the deadline to do so?
Such an order has to be secured within a period of 10 days, which is further extendable by 10 additional working days.
Does the IP rights holder need to pay an additional bond for the detention of goods?
If the answer to the above question is 'Yes,' then to what extent and how is the valuation calculated?
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 the scenario where the goods detained or seized are found to be infringing the IPRs of the IP rights holder in question, what steps does the customs department/authority take?
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.
Does the customs authority invite the rights holder and importer to join the proceedings? Are there any consequences of failure to join such proceeding, if any?
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.
Before disposal/destruction of infringing goods, does the rights holder need to submit a ‘no objection’ or concurrence document?
Are there any disadvantages of Custom Recordal of IPRs in Tunisia? If yes, then kindly give 2-3 points?
If an IP rights holder is not satisfied with the action taken by the customs department/authority, can he/she initiate separate legal proceedings to enforce his/her IP rights?
To establish if the goods are counterfeit before the court of justice, will the affidavit by the IP rights holder suffice or any other documentary requirement is there?
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.
Upon conclusion of proceedings before the Court of Justice, what are the possible remedies awarded by the court?
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).
Is the rights holder under an obligation to inform customs authority when his Intellectual Property Right ceases to be valid/ he ceases to be the owner of such IPR?