Mandated to facilitate legitimate trade and protect local industries and communities, the Papua New Guinea Customs Service is also stepping up its efforts in monitoring and enforcing Intellectual Property Rights at the borders pursuant to the Customs Prohibited Imports Regulation.
This explains the complete process for right holders (owners of trademarks, copyrights, etc.) to protect their intellectual property from counterfeit and pirated goods at PNG’s border.
Understanding the Basics
- Right Holder: An entity that has registered its intellectual property (e.g., a trademark, copyright, patent, or design) with the PNG Intellectual Property Office (IPOPNG).
- IPR at the Border: The protection against the import, export, or transit of counterfeit trademark goods, pirated copyright goods, and other items that infringe on registered rights.
- First Requirement: Before Customs can help, you must be a registered right holder with IPOPNG.
- Right Holder Responsibility: It is the responsibility of the right holder to protect, monitor, and enforce their own IP rights. Customs procedures are tools to assist in this duty.
The Enforcement Process – A Step-by-Step Overview
PNG Customs offers two main paths for enforcement: the Recordation process for proactive monitoring and the Intervention process for specific cases. They can also act on their own initiative (Ex-officio).
Step 1: Record Your IP for Proactive Monitoring
This is a proactive, two-year registration with Customs that allows them to monitor shipments for you.
- Submit a formal application to the PNGCS Intellectual Property Rights & Industry Standards Section.
- Required Documents & Data:
- Correctly filled prescribed application form.
- Supporting documents from IPOPNG (certificates, extracts).
- If you are a distributor or manufacturer, provide a certified copy of the distributor or licensing agreement.
- Samples and images of your genuine products for Customs reference.
- Outcome: Once granted, Recordation is valid for two (2) years. Customs is authorized to check suspicious shipments during this period.
- Renewal: Apply for renewal two months before expiry. You must inform Customs if your IP right ceases to be valid.
Step 2: Request Intervention for a Specific Shipment
This process is used when a specific shipment of suspected counterfeit goods has been detected.
- Detection by Customs or a report from the right holder.
- The right holder submits an Intervention application.
- Required Documents & Fees:
- Correctly filled prescribed form.
- A non-refundable K2,000 processing fee.
- Supporting documents.
- Security: The applicant must provide security or prove sufficient assets to compensate for any loss or damage from a wrongful suspension.
- Process:
- If approved, Customs grants a 10-working day suspension of the goods and notifies the importer.
- The right holder must initiate legal proceedings against the infringer within this 10-day period.
- The suspension can be extended by writing to Customs based on reasonable grounds.
- If no legal action is started within 10 days, the goods are released (subject to other Customs requirements).
Step 3: Ex-officio Action by Customs
PNG Customs can act on its own initiative without a prior application if there is prima facie evidence or reasonable cause to believe an IP right has been infringed.
Legal Consequences of IPR Breaches
The law provides strict penalties for dealing in infringing goods.
| Legal Breach | Consequence | Legal Reference |
|---|---|---|
| Importing/Exporting Infringing Goods | The person is guilty of an offence and subject to penalty provisions (fines). | Customs Act, Section 153(k) |
| Final Outcome for the Goods | Infringing goods are forfeited to the State. | Customs Act, Section 146(1)(ca) |
| Who Bears the Cost? | The owner, importer, exporter, consignee, or consignor pays for storage and destruction of the forfeited goods. | Customs Prohibited Imports Regulation |
Key Takeaway: The financial and legal risks of handling counterfeit goods are high and fall directly on the importer or exporter.
Key Responsibilities
- Authorization is Key: Anyone wishing to use a registered IP must first seek authorization from the right holder.
- Be Proactive: Recording your valid IPR with Customs is the most effective step for ongoing border protection.
- Report Suspected Goods: Legitimate businesses should immediately contact the PNGCS Enforcement Division if they know of suspected infringing shipments.
For more information, to report suspected infringing goods, or to begin the Recordation or Intervention process, please contact:
PNG Customs Service – Enforcement Division
Intellectual Property Rights & Industry Standards Section