Home Affairs Department
Customs and Immigration Service - Community Provisions (Goods Infringing Intellectual Property Rights) (Jersey) Regulations 201-
Background
The States of Jersey Economic Development Department is in the process of updating the Island’s intellectual property laws so that they are compliant with the relevant international conventions. To that end the Intellectual Property (Unregistered Rights) (Jersey) Law 201- is currently in draft form.
Article 141 of the draft Law contains provisions for Customs border measures. It allows the owner of a copyright to request that infringing copies be dealt with as prohibited goods on importation. These infringing copies can then be seized as liable to forfeiture under the provisions of the Customs and Excise (Jersey) Law 1999.
Article 141(6) of the draft Law excludes goods for which an application may be made under Council Regulation (EC) No 1383/2003.
The Council Regulation provides for applications by right-holders to request Customs authorities to prohibit entry into free circulation and the export or re-export from the Community of goods infringing an intellectual property right. These are specified in Article 2(1) as:
- Trade marks
- Copyrights
- Patents
- Plant varietal rights
- Designations of origin or geographical indications and geographical designations.
Article 4 of the Council Regulation also allows infringing goods to be seized by Customs where no application has been made. The rights-holder is then to be contacted and invited to make an application for their control in line with the other provisions of the Council Regulation.
As the Council Regulation is clearly addressing a ‘Customs’ issue and deals with provisions to be put in place before goods are released into free circulation the Law Officers advise that the Regulation has direct effect in Jersey in accordance with Protocol 3 of the Treaty of Accession of the UK.
Legal basis
The European Communities Legislation (Implementation) (Jersey) Law 1996 enables the States of Jersey to give effect by Regulation to legislation of the European Communities
Conclusion
The Customs and Immigration Service considers that to introduce satisfactory border measures for the control of goods subject to intellectual property rights the provisions of Council Regulation (EC) No 1383/2003 will have to be implemented in Jersey in the form of Regulations made under the European Communities Legislation (Implementation) (Jersey) Law 1996.
Resource Implications
The Service considers that there are no manpower or cost implications associated with this decision as the legislation will only apply to imports from third countries.
Recommendation
The Minister is recommended to direct the Customs and Immigration Service to instruct the Law Draftsman to prepare a draft Regulation for consideration by the States Assembly. The draft Regulation to give effect to Council Regulation (EC) No 1383/2003 and to apply the detention, seizure, condemnation and forfeiture provisions of the Customs and Excise (Jersey) Law 1999 to the Article 4 provisions of that Council Regulation.
David Nurse
Director, Legal Status and Revenue
Customs and Immigration Service
19th February 2010