On December 26, 2017 the President of the Republic of Kazakhstan signed a new code of the Republic of Kazakhstan «On Customs Regulation in the Republic of Kazakhstan» (hereinafter referred to as «the Code») No. 123-VI ZRK. The Code came effective as of January 1, 2018 and is aimed at the improvement of the customs regulation system in the whole.
The Law of the Republic of Kazakhstan “On the Amendments and Supplements to Several Legal Acts of the Republic of Kazakhstan on Customs Regulation Issues” as of December 26, 2017 № 124-VI ZRK , which became effective as of January 1, 2018 (further referred to as «the Law»), was adopted simultaneously with the approval of the Code in order to bring the customs legislation of Kazakhstan to conformity with the Code. The Law amends 35 regulatory legal acts of the Republic of Kazakhstan.
The amendments, which are introduced to the customs regulation in Kazakhstan by the Code, can be roughly divided into 2 parts: 1) the ones concerning the Eurasian Economic Community (hereinafter referred to as «EAEC»); 2) the ones concerning the domestic (national) regulation.
This alert will consider the amendments, which the Code introduces into the measures on protection of the right holders’ rights for their intellectual property objects (hereinafter referred to as “IP objects”), which are established by the customs authorities.
The Code introduces the concept and regulation of a single customs intellectual property objects register of the Eurasian Economic Community member states (hereinafter referred to as “single CIPR of the EAEC”). In our view, the regulation peculiarities of the single CIPR EAEC are the following:
- - Eurasian Economic Committee (further referred to as “Committee”) defines administration of the single CIPR of the EAEC member states on the basis of the Regulation. Currently, the Regulation has not come into effect yet.
- - The IP object to be included into the CIPR of the EAEC must be registered in each of the EAEC member states.
- - In case if identical IP objects, which are registered in the EAEC member states, belong to different right holders, the introduction of such IP objects requires the consent of all right holders in each of the EAEC member states by issuing powers of attorney.
- - The application for recording of the IP object to the CIPR of the EAEC can be submitted by the right holder either on behalf of the right holder, who has no permanent representation in the customs territory of the EAEC, or it can be submitted through individuals, who have permanent location (registration) on the territory of a EAEC member state.
- - A possibility to submit a set of documents for the IP objects recording with the CIPR of the EAEC in any language under the provision of attaching their translation into Russian.
- - In case if the rights for the identical IP objects on the territory of the EAEC member states belong to different right holders, there are granted liabilities for compensation of property damage to the declarant or to other individuals, which may appear in view of ceasure of the production of goods, which contain the IP objects, which are supposed to be the goods with violation of each IP objects right holders’ rights.
- - The insurance amount or the amount of maintenance for the obligations performance according to the liability insurance policy for causing property damage to individuals which eventuated from seasure of the production of the goods must be equivalent to not less than EUR 10,000 according to the effective exchange rate on the day of the liability insurance agreement(s) or any other agreement(s), or the amendment of such agreements.
- - The term of IP object recording with the CIPR of the EAEC may vary from, approximately, 1.5 to 2 months.
- - After the Committee accepts the set of documents for the IP objects introduction into the CIPR of the EAEC, the application is then directed to each central customs authority of the EAEC member state. In case if at least one of the central customs authorities refuses the Committee to introduce the item into the single CIPR, the IP object will not be introduced thereto.
CUSTOMS INTELLECTUAL PROPERTY OBJECTS REGISTER OF THE REPUBLIC OF KAZAKHSTAN (FURTHER REFERRED TO AS “CIPR OF THE RK”)
The amendments have also affected the regulating part of the CIPR of the RK. The novelties, which have been introduced by the Code since January 1, 2018, are provided herein below:
- - The application for IP object recording with the CIPR of the RK must have an attached document that proves the fact of transfer of the products with IP objects right violation across the EAEC customs border. For comparison, such a document was not required before.
- - The application for IP object recording with the CIPR of the RK must also have attached images of the distinctive features of the original goods, which comprise IP objects, and the goods, which indicate features of the IP objects right violation. Before the Code was introduced, it had been sufficient to attach descriptions of the distinctive features of the original goods, which comprised IP objects, and the goods, which comprised features of the IP objects right violation.
- - The application for IP object recording with the CIPR of the RK and the attached documents are submitted to a competent authority in written and (or) electronic form. However, this statement does not provide a definite reply. While before, the documents had been provided in both written and electronic forms.
- - The term of the application consideration has changed from 30 calendar days to 20 business days.
- - In case of termination of the IP object right, the right holder or his representative must notify the customs authority in written or electronic form within 5 days about this. This condition was not stated before.
- - Now the period of the detaining the products, which contain the IP objects, can be extended, but for not more than 10 business days, only in case the right holder submits the legal recourse documents.
The right holder or his representative are allowed, with the customs authorities’ permit, to take probes and (or) samples of the goods, while there is a resolution on suspension of their production, also for conducting investigation thereof, as well as to obtain a right to examine, photograph or register such goods in any other way. While taking probes and samples of the goods, including product examination, was performed by a customs authority official earlier.