[pp.int.general] Fwd: [SPICY IP] SpicyIP Tidbit: Customs Department allows parallel import of Dell computers; orders Dell to pay damages

[Amelia Andersdotter]

section 3(d) of the patent law and 30(3) of the trade mark act. heavy shit.

-------- Mesajul original --------
Subiect: 	[SPICY IP] SpicyIP Tidbit: Customs Department allows parallel 
import of Dell computers; orders Dell to pay damages
Data(: 	Tue, 10 Apr 2012 21:03:24 +0000
de la: 	Prashant Reddy <preddy85 at gmail.com>
Ra(spuns ca(tre: 	preddy85 at gmail.com
Ca(tre: 	spicyip at googlegroups.com



<http://4.bp.blogspot.com/-Vq2nnMdm9Lg/T4Sf44--nPI/AAAAAAAAA8I/TcH8bPlD3GM/s1600/38-dell_logo_1_1.png>In 
an interesting report carried in the Economic Times 
<http://articles.economictimes.indiatimes.com/2012-04-09/news/31313110_1_dell-india-importers-dell-spokesperson>, 
it has been reported that the Commissioner of Customs has not only 
allowed the parallel imports of Dell computers into the country but also 
ordered Dell to pay demurrage & warehousing charges to the importers 
whose goods had been seized for over two months due to a complaint made 
by Dell.

While the report does not specifically explain the law under which the 
consignments were withheld, I’m guessing that Dell had filed a complaint 
with customs under the IPR (Imported Goods) Enforcement Rules, 2007 
<http://www.cbec.gov.in/customs/cs-act/formatted-htmls/ipr-enforcementrules.htm> 
that the import of Dell computers into India, by unauthorized dealers, 
infringes its trademark rights in India. As per the IPR Import Rules, 
the Customs may seize such goods for a certain period of time during 
which the Customs authorities is required to arrive at a judgment on the 
validity of the infringement claims.

As per the ET report, the importers argued that the products were 
genuine Dell products and that they had a right to import such goods 
under the provisions of Section 30 of the Trade Marks Act, 1999. Readers 
may remember the highly controversial Samsung judgment of the Delhi High 
Court which interpreted Section 30(3) of the Trade Marks Act to 
specifically prohibit the parallel imports on the grounds that the same 
amounted to trademark infringement in India. Arun Mohan had covered this 
case in a guest post over here 
<http://spicyipindia.blogspot.in/2012/03/guest-post-landmark-judgement-on.html>. 


The Customs Commissioner obviously had a different interpretation of 
Section 30(3). Normally such seizure orders under the IPR Import rules 
are done only when the complainant provides a surety that covers any 
possible damages to the defendant in the case of a wrongful seizure. In 
this case since the seizure was deemed as having no basis in the law, 
Dell was required to compensate the defendant for the losses suffered by 
them due to the seizure of their imports.

It will be interesting to see the decision of any appeals court 
especially since there seems to be a general unanimity of opinion that 
the Samsung judgment of the Delhi High Court is untenable in law.

  p.s.: Anybody with a copy of the order is please requested to share 
the same with us.


--
Posted By Prashant Reddy to SPICY IP 
<http://spicyipindia.blogspot.com/2012/04/spicyip-tidbit-customs-department.html> 
at 4/11/2012 02:33:00 AM --
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