1. Border control on trademark infringement
(1) Is there a system in which the Customs or the like suspends importation of trademark infringing goods on its own initiative or based on a claim filed by the IPR holder?
=> There is no the written procedure or system in the customs suspends importation of trademark infringing goods at the moment.
However, according to the Law on Custom No. 05/NSA, at Vientiane Capital, dated 20 May 2005, Article 15. Goods, items that be prohibited.
“Good and items that be prohibited is the goods, items that the government do not allow to import or export, sell, buy, keep or use to secure the following condition:
1. Security, pace and good for society
2. protection for life and health of people, animals and plants S
3. Good standard of life of people, custom and culture
4. protection for the nation inheritance
5. protection for natural resources
6. Implementation under United Nations’ treaty
7. Implementation under regulations related to the Lao PDR’ laws”
Generally for the IP cases, the case of custom prohibition shall mainly fall into No#7 and some into No#6.
This is possible in practice (case precedents), yet there is no written systematic or procedural guideline set in the regulation.
- From the previous cases, the claim or official letter to submit to the Prime Minister’s Office can be submitted.
- Then The Prime Minister’s Office will examine the case and the need for the cessation of the sanction.
- If it is clarified, then the Prime Minister’s Office will issue the Official Notice to all line ministries including, ministry of Commerce and Industry, ministry of Finance(Custom Department), ministry of public security (Economic Police) and all other line ministries concerned to monitor or cease the importation or trading of the products.
From the previous case, there were several cases, for instance, toothpaste, Shampoo products, etc.
(2) What are the requirements for applying suspension of imported goods?
=> The basic requirement would be:
1. Official Letter from the IP agent;
2. Power of Attorney;
3. Request from trademark owner.
4. Evidences and statistics of the importation of the counterfeit products.
5. Deed of ownership/ the status of the applicant.
(3) What are the necessary documents, information, evidence for applying suspension of imported goods?
=> Please refer to the number (2)
i) Official Letter from the legal representative.
ii) Power of Attorney (Letter of Authorization from Trademark Owner to Lao Trademark Agency/Lao IP Agency.).
iii) Request from trademark owner.
iv) Evidences and statistics of the importation of the counterfeit products.
v) Deed of ownership/ the status of the applicant.
(4) If there are several Customs, do we need to submit the documents to all of the Customs?
=> Even though there are several customs, the request must be submitted at the central or Prime Minister’s Office in order to have approval (Official Notice).Then this Official Notice will be sent to all line ministries concerned for the request to notify all units of custom in Laos. (Kindly, please see the case example of Shampoo. For your easy reference, we enclose you herewith).
(5) Cooperation with Customs
(a) Is there a need to conduct training to the officers of the Customs, such as teaching techniques for finding infringing goods and the like?
=> Yes, as some of the counterfeit goods are nearly or looks almost identical to the genuine goods in which if there is no training, officers may not be able to identify the difference between the counterfeit and genuine products.
(b) What other cooperation must the client provide to the Customs?
=> The original and counterfeit products, equipments or tools to differentiate the differences between the original and counterfeit products.
(c) When a suspected import is found at the Customs, must the IPR holder actually go to the Customs where the suspected import is found and determine whether the import is infringing trademark or not? If so, how much time is given to the IPR holder for determination?
=> This would depend on the circumstances. If the customs officials already have sufficient, reliable and accountable skills, the customs officials can manage on their own without having the presence of the IPR holder in every time.
However, in the case where the custom officials are not able to identify the suspected goods, it may require the IPR holder to assist the customs officials.
(d) When a suspected import is found at the Customs, could the Customs or the IPR holder conduct overhaul inspection to a sample of the suspected import?
(6) Liability of IPR holder: In the case where the suspected import is determined as not infringing the trademark by the Customs, then would the IPR holder be liable to damages claim or the like?
=> This would depend on the circumstances and the party or owner of the goods whether they will sue us for their damage or their time spent on this issue or not.
(a) Is it necessary for the IPR holder to deposit a bond in order to apply for and/or realization of import suspension?
=> This would depend on the circumstances. For the counterfeit goods, no bond is required. Typically, the infringer shall be penalized in cash payment.
(8) Enforcement of border control
(a) When the Customs and the like decides to seize/forfeit the trademark infringing goods, then how is the seized/forfeited infringing goods finally treated? (Disposed, reshipped, or the like)
=> This would depend on the circumstances. Generally the penalty rate is in compliance according to the rules of Ministry of Finance (Customs Department).
- the first time shall be penalized at the rate of 10% of the total cost,
- second time 50%
- third time is 100% or
(b) Who bears the costs incurred in the treatment of the seized/forfeited goods?
Is it possible to file an appeal against the decision of the Customs and the like? If possible, then please explain the procedures thereof specifically and in full detail.
=> So far, there has not yet been any case for an appeal.
(10) What are the advantages/disadvantages of border control?
– it is the effective way to stop importing the counterfeit products;
– it is the gentle method to stop customers using the counterfeit products;
– it can reduce the number of the counterfeit products in the markets or to consumers.
– it is a sophisticated procedures
– it is a lot of cooperation from many sectors
– Time consuming
– High cost involved as there are many ports in Laos.
(11) Status of border control:
Please provide us with the actual status of the border control (number of applications per year, number of cases where suspension of import is awarded, problems and the like).
=> Not available
2. Border control on design infringement
Kindly, please refer to the No 1 ( as the procedure would be the same)
3. Border control on patent infringement
Kindly, please refer to the No 1 ( as the procedure would be the same)
Please be informed that the recordal of custom is not automatic in Laos. Please see the flow chart.
The cost would vary upon the province. Therefore, the trademark owner needs to indicate us which province the customs recordal to be executed.
PROVINCES OF LAOS
PLEASE SELECT (TICK)
|VIENTIANE (CAPITAL CITY)|