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COUNTERFEIT GOODS ACT 37 OF 1997

[ASSENTED TO 19 SEPTEMBER 1997] [DATE OF COMMENCEMENT: 1 JANUARY 1998]

(English text signed by the President)

as amended by

Counterfeit Goods Amendment Act 25 of 2001

Regulations under this Act

NOTICE IN TERMS OF SECTION 24 OF THE COUNTERFEIT GOODS ACT 37 OF 1997

ACT

To introduce measures aimed against the trade in counterfeit goods so as to further protect owners of

trade marks, copyright and certain marks under the Merchandise Marks Act, 1941, against the

unlawful application, to goods, of the subject matter of their respective intellectual property rights and

against the release of goods of that nature (called 'counterfeit goods') into the channels of commerce;

for that purposeto

prohibit certain acts in relation to counterfeit goods as well as the

possession of counterfeit goods in certain circumstances;

to create offences in that regard and prescribe penalties in relation thereto;

to confer, in certain circumstances, upon inspectors and certain members of

the South African Police Service the power, upon having obtained a warrant,

or upon being otherwise authorised by or in terms of this Act, to enter

premises and there to search for, and, if found, to seize and remove,

counterfeit goods or suspected counterfeit goods for detention pending the

finalisation of civil or criminal proceedings to be instituted or any other

disposal thereof authorised by or in terms of the Act;

to provide that the Commissioner for Customs and Excise and his or her

staff, upon having granted an application to that end by the owner of an

intellectual property right, will have the power to seize and detain counterfeit

goods or suspected counterfeit goods imported into or entering the Republic

during a particular period and calculated to infringe that intellectual property

right;

and to provide for incidental matters.

1 Definitions

(1) In this Act, unless inconsistent with the context-

'act of dealing in counterfeit goods' means any act or conduct referred to in section 2 (1);

'apply to', with reference to any goods, means use upon or in physical or other relation to any

goods, and, unless clearly inappropriate, includes to embody or incorporate in any goods;

'complainant' means a person who, in terms of section 3 (1), is entitled to lay a complaint

contemplated in that section and who has laid such a complaint;

'counterfeiting'-

(a) means, without the authority of the owner of any intellectual property right subsisting

in the Republic in respect of protected goods, the manufacturing, producing or

making, whether in the Republic or elsewhere, of any goods whereby those protected

goods are imitated in such manner and to such a degree that those other goods are

substantially identical copies of the protected goods;

(b) means, without the authority of the owner of any intellectual property right subsisting

in the Republic in respect of protected goods, manufacturing, producing or making, or

applying to goods, whether in the Republic or elsewhere, the subject matter of that

intellectual property right, or a colourable imitation thereof so that the other goods are

calculated to be confused with or to be taken as being the protected goods of the said

owner or any goods manufactured, produced or made under his or her licence; or

1941), the use of a particular mark in relation to goods, except such use by a person

specified in the notice, has been prohibited, means, without the authority of the

specified person, making or applying that mark to goods, whether in the Republic or

elsewhere.

However, the relevant act of counterfeiting must also have infringed the intellectual property

right in question;

'counterfeit goods' means goods that are the result of counterfeiting, and includes any means

used for purposes of counterfeiting;

'counterfeit goods depot' means a place designated under section 23 to be a counterfeit

goods depot, and includes any place deemed by section 7 (1) (c) to be a counterfeit goods

depot;

'document' includes a tape recording, a photograph and any electronic or magnetic or other

medium on, in, or by means or by way of which, images, sound, data or information may be

stored, and 'documentary' will be construed accordingly;

'exporter' includes any person who, at the relevant time-

(a) is the owner or is in control or possession of any goods exported or to be exported

from the Republic;

(b) carries the risk for any goods so exported or to be so exported;

exported or to be so exported;

(d) actually takes or attempts to take any goods from the Republic;

(e) has a beneficial interest, in any manner or of any nature whatsoever, in any goods so

exported or to be so exported;

(f) acts on behalf of any person referred to in paragraph (a), (b), (c), (d) or (e) of this

definition,

and, in relation to imported goods destined for exportation from the Republic, includes the

manufacturer, producer, maker, supplier or shipper of those goods or any person inside or

outside the Republic representing or acting on behalf of such a manufacturer, producer,

maker, supplier or shipper. 'Export' and 'exportation' will be construed in accordance with the

preceding provisions of this definition;

'importer' includes any person who, at the relevant time(

a) is the owner or is in control or possession of any goods imported or to be imported

into the Republic;

(b) carries the risk for any goods so imported or to be so imported;

imported or to be so imported;

(d) actually brings or attempts to bring any goods into the Republic;

(e) has a beneficial interest, in any manner or of any nature whatsoever, in any goods so

imported or to be so imported;

(f) acts on behalf of any person referred to in paragraph (a), (b), (c), (d) or (e) of this

definition,

and 'import' and 'importation' will be construed accordingly;

'inspector' means any person who under or by virtue of section 22 has been appointed as or

designated to be an inspector for the purposes of this Act, as well as-

(a) any police official as defined in section 1 (1) of the Criminal Procedure Act, 1977 (Act

51 of 1977), holding the rank of sergeant or a higher rank;

(b) the Commissioner for Customs and Excise and any official contemplated in section

15 (9), in performing their functions in the circumstances contemplated in section 15

(4);

'intellectual property right'-

(a) means the rights in respect of a trade mark conferred by the Trade Marks Act, 1993

(Act 194 of 1993), and includes rights in respect of a trade mark contemplated in

section 35 of that Act;

[Para. (a) substituted by s. 1 of Act 25 of 2001.]

(b) means the copyright in any work in terms of the Copyright Act, 1978 (Act 98 of 1978);

1941, the use of a particular mark in relation to goods, except such use by a person

specified in the notice, has been prohibited, means the concomitant exclusive right of

that specified person so to use that mark;

'Minister' means the Minister of Trade and Industry;

'owner', in relation to an intellectual property right, includes a person who has the capacity in

law to enforce the intellectual property right in his or her own name;

'package' or 'packaging' means any container, wrapping or outer cover and the contents

thereof, or any bundle or single piece in the case of unpacked goods, and, when used as a

verb, has a corresponding meaning;

'prescribed' means prescribed by regulation under this Act;

'protected goods' means-

(a) goods featuring, bearing, embodying or incorporating the subject matter of an

intellectual property right with the authority of the owner of that intellectual property

right, or goods to which that subject matter has been applied by that owner or with his

or her authority;

(b) any particular class or kind of goods which, in law, may feature, bear, embody or

incorporate the subject matter of an intellectual property right only with the authority

of the owner of that intellectual property right, or to which that subject matter may in

law be applied, only by that owner or with his or her authority, but which has not yet

been manufactured, produced or made, or to which that subject matter has not yet

been applied, with the authority of or by that owner (whichever is applicable);

'this Act' includes any regulation made under this Act;

'tools' includes machinery;

'vehicle' includes any motor car, van, truck, trailer, caravan, cart, barrow, train, aircraft, ship,

boat or other vessel, and any other vehicle, craft or means of conveyance of any kind

whatsoever, whether self-propelled or not, as well as any pack animal.

(2) Without derogating from the meanings of the words 'place', 'premises' and 'vehicle', and

unless clearly inappropriate, any reference in this Act-

(a) to any place or premises, must be construed as a reference also to any freight

container, irrespective of its size, at, on or in the place or premises;

(b) to any vehicle, must be construed as a reference also to such a freight container on

or in the vehicle.

2 Dealing in counterfeit goods prohibited and an offence

(1) Goods that are counterfeit goods, may not-

(a) be in the possession or under the control of any person in the course of business for

the purpose of dealing in those goods;

(b) be manufactured, produced or made except for the private and domestic use of the

person by whom the goods were manufactured, produced or made;

out, barter or exchange;

(d) be exhibited in public for purposes of trade;

(e) be distributed-

(i) for purposes of trade; or

(ii) for any other purpose to such an extent that the owner of an intellectual

property right in respect of any particular protected goods suffers prejudice;

(f) be imported into or through or exported from or through the Republic except if so

imported or exported for the private and domestic use of the importer or exporter,

respectively;

(g) in any other manner be disposed of in the course of trade.

(2) A person who performs or engages in any act or conduct prohibited by subsection (1), will be

guilty of an offence if-

(a) at the time of the act or conduct, the person knew or had reason to suspect that the

goods to which the act or conduct relates, were counterfeit goods; or

(b) the person failed to take all reasonable steps in order to avoid any act or conduct of

the nature contemplated in subsection (1) from being performed or engaged in with

reference to the counterfeit goods.

3 Laying a complaint

(1) Any person who has an interest in protected goods, whether as the owner or licensee of an

intellectual property right in respect of the protected goods or as an importer, exporter or

distributor thereof (including the duly authorised agent or representative or the attorney of any

such person), who reasonably suspects that an offence referred to in section 2 (2) has been

or is being committed or is likely to be committed by any person, may lay a complaint to that

effect with any inspector.

(2) (a) The complainant must furnish information and particulars, to the satisfaction of the

inspector, to the effect that the goods with reference to which that offence allegedly

has been or is being or is likely to be committed, prima facie are counterfeit goods.

(b) For the purposes of paragraph (a), the complainant may furnish to the inspector a

specimen of the alleged counterfeit goods, or, if not reasonably possible, sufficient

information and particulars from which the essential physical and any other distinctive

features, elements and characteristics of the alleged counterfeit goods may be

ascertained, and sufficient information and particulars as to the subsistence and

extent of the intellectual property right, the subject matter of which allegedly has been

applied to the goods alleged to be counterfeit goods, and as to the complainant's title

to or interest in that right, and, where the alleged counterfeit goods are calculated to

infringe an intellectual property right that subsists in respect of or has been applied to

protected goods contemplated in paragraph (a) of the definition of 'protected goods' in

section 1 (1), also a specimen of the relevant protected goods.

(3) In relation to a complaint that has been laid, an inspector must take appropriate steps in terms

of and subject to section 4 (1), if reasonably satisfied-

(a) that the person having laid the complaint, prima facie is a person who, in terms of

subsection (1), is entitled to do so; and

(b) that-

(i) the goods claimed to be protected goods, prima facie are protected goods;

and

(ii) the intellectual property right, the subject matter of which is alleged to have

been applied to the offending goods, prima facie subsists; and

in the circumstances.

(4) The preceding provisions of this section do not preclude an inspector from taking any

appropriate steps in terms of section 4 (1) on his or her own initiative in relation to any act or

conduct believed or suspected to be an act of dealing in counterfeit goods, provided the

requirements of that section are met.

4 Inspector's powers in relation to counterfeit goods

(1) If, pursuant to any complaint laid with an inspector or on the strength of any other information

at his or her disposal, the inspector has reasonable grounds to suspect that an offence

contemplated in section 2 (2) has been or is being committed or is likely to be committed, or

to believe that an act of dealing in counterfeit goods has taken or is taking place or is likely to

take place, he or she has the power, in accordance with paragraphs (a) to (f) of section 5 (1)-

(a) to enter upon or enter any place, premises or vehicle in order to inspect any relevant

goods and seize any suspected counterfeit goods, and may seize any suspected

counterfeit goods found and cause them to be detained in accordance with this Act,

and, where applicable, remove the suspected counterfeit goods for the purposes of

detention;

(b) to collect or obtain evidence relating to the suspected counterfeit goods or the

relevant act of dealing in counterfeit goods;

reasonably necessary for the purposes of paragraph (a) or (b) (including the search

of a person); and

(d) to take whatever steps may be reasonably necessary in order to terminate the

relevant act of dealing in counterfeit goods.

(2) Subject to section 5 (2), the powers conferred on an inspector by subsection (1) may be

exercised only on the authority of a warrant issued under section 6, and may be exercised

wherever the suspected act of dealing in counterfeit goods has taken or is taking place or is

likely to take place or is suspected on reasonable grounds to have taken place or to be taking

place.

5 Extent of Inspector's powers in relation to counterfeit goods

(1) An inspector acting on the authority of and in accordance with a warrant issued under section

6, may at any reasonable time-

(a) enter upon or enter, and inspect, any place, premises or vehicle at, on or in which

goods that are reasonably suspected of being counterfeit goods, are to be found or

on reasonable grounds are suspected to be or to be manufactured, produced or

made, and search such place, premises or vehicle and any person thereat, thereon or

therein, for such goods and for any other evidence of the alleged or suspected act of

dealing in counterfeit goods. For the purposes of entering, inspecting and searching

such a vehicle, an inspector who is a police official or who is assisted by a police

official may stop the vehicle, if necessary by force, wherever found, including on any

public road or at any other public place;

(b) take the steps that may be reasonably necessary to terminate the manufacturing,

production or making of counterfeit goods, or any other act of dealing in counterfeit

goods being performed, at, on or in such place, premises or vehicle, and to prevent

the recurrence of any such act in future. Those steps may include any of the steps

contemplated in paragraphs (c), (d) and (e) but do not include the destruction or

alienation of the relevant goods unless authorised by the court in terms of this Act;

question found at, on or in such place, premises or vehicle;

(d) seal or seal off any place, premises or vehicle at, on or in which-

(i) the goods in question are found, or are manufactured, produced or made,

either wholly or in part;

(ii) any trade mark, or any exclusive mark contemplated in paragraph (c) of the

definition of 'counterfeiting' in section 1 (1), or any work which is the subject

matter of copyright, is applied to those goods;

(iii) the packaging for those goods is prepared; or

(iv) the packaging of those goods is undertaken;

(e) seize and detain, and, where applicable, remove for detention, any tools which may

be used in the manufacturing, production, making or packaging of those goods or

applying a trade mark or that exclusive mark or such a work to them; and,

(f) if he or she reasonably suspects that a person at, on or in such place, premises or

vehicle may furnish any information with reference to any act of dealing in counterfeit

goods-

(i) question that person and take down a statement from him or her;

(ii) demand and procure from that person any book, document, article, item or

object which in any way may be relevant to the nature, quantity, location,

source or destination of the goods in question, or the identity and address of

anyone involved or ostensibly involved as a supplier, manufacturer, producer,

maker, distributor, wholesaler, retailer, importer, exporter or forwarding agent

of, or other dealer in, the goods in question.

(2) Subject to subsection (3), an inspector may, during the day, without a warrant enter upon or

enter any place, premises or vehicle after having identified himself or herself, and, in

accordance with paragraphs (a) to (f) of subsection (1), exercise the powers of seizure,

removal, detention, collecting evidence and search contemplated in section 4 (1) (a), (b) and

contemplated in section 4 (1) (d), if-

(a) the person who is competent to consent to the entry and to such search, seizure,

removal and detention, gives that consent; or

(b) the inspector on reasonable ground believes that-

(i) the required warrant will be issued to him or her in terms of section 6 if he or

she were to apply for the warrant; and

(ii) the delay that would ensue by first obtaining the warrant would defeat the

object or purpose of the entry, search, seizure, removal, detention, collection

of evidence and other steps.

(3) Subsection (2) (b) does not serve as authority for, and may not be applied for the purposes of,

entering and searching any private dwelling, nor for conducting such seizure and removal, the

collection of evidence and the taking of the said other steps therein.

(4) Notwithstanding the provisions of subsections (1) and (2)-

(a) any acts performed by an inspector by virtue of subsection (2) must be

confirmed by a magistrate or a judge of the High Court having jurisdiction in the area where the acts

were performed, on the application of the inspector brought within 10 court days of the day on which

those acts were performed;

[Para. (a) substituted by s. 2 (a) of Act 25 of 2001.]

(b) no answer given or statement made by any person to an inspector exercising

his or her powers in terms of paragraph (f) (i) of subsection (1) or given or made to any inspector

exercising like powers by virtue of subsection (2), will, if self-incriminating, be admissible as evidence

against that person in criminal proceedings instituted in any court against him or her, except in

criminal proceedings where that person is tried for an offence contemplated in section 18 (d) (ii), and

then only to the extent that such answer or statement is relevant to prove the offence charged.

(4A) If the magistrate or judge contemplated in subsection (4) (a) does not confirm the acts

performed by the inspector, the inspector must return any goods seized forthwith and make good any

damage caused.

[Sub-s. (4A) inserted by s. 2 (b) of Act 25 of 2001.]

(5) The provisions of section 6 (4) regarding the manner in which a search must be

conducted, and section 6 (5) (b), (6), (7), (8) and (9), will apply mutatis mutandis to an inspector acting

by virtue of subsection (2) of this section.

6 Provisions relating to issue and execution of warrant

(1) The warrant contemplated in section 4 (2) read with section 5 (1) will be issued in

chambers by any judge of the High Court or by a magistrate who has jurisdiction in the area where

the relevant suspected act of dealing in counterfeit goods is alleged to have taken or to be taking

place or is likely to take place, and will be issued only if it appears to the judge or magistrate from

information on oath or affirmation that there are reasonable grounds for believing that an act of

dealing in counterfeit goods has taken or is taking place or is likely to take place, and the inspector

seeking the warrant may be asked to specify which of the powers contemplated in section 4 (1) is or

are likely to be exercised.

(2) A warrant in terms of this section may be issued either with reference to only one separate

suspected act of dealing in counterfeit goods or with reference to any number of such acts, whether

any such act involves only one alleged offender or any number of alleged offenders, and irrespective

of whether such offender or number of offenders is identified specifically by name or by reference to

any particular place or circumstances, and any point in time.

(3) A warrant in terms of this section may be issued on any day and will be in force until-

(a) it has been executed; or

(b) it is cancelled by the judge or magistrate who issued it, or, if not available, by

any other judge, or by any other magistrate with like authority (as the case may be); or

(d) the purpose for which the warrant was issued, no longer exists,

whichever may occur first.

(4) A warrant issued in terms of this section may be executed by day only, unless the person

who has issued the warrant has authorised the execution thereof by night at times which must be

reasonable, and the entry upon or into and search of any place, premises or vehicle specified in the

warrant, and the search of any person thereat, thereon or therein, must be conducted with strict

regard to decency and order, including-

(a) a person's right to, respect for and protection of his or her dignity;

(b) the right of a person to freedom and security of his or her person; and

(5) An inspector executing a warrant in terms of this section must immediately before

commencing with the execution thereof(

a) identify himself or herself to the person in control of the place, premises or

vehicle to be entered upon or entered, if that person is present, and hand to that person a copy of the

warrant, or, if that person is not present, affix a copy of the warrant to a prominent spot at, on or to the

place, premises or vehicle;

(b) furnish that person at his or her request with particulars regarding the

inspector's authority to execute such a warrant. For that purpose an inspector may be requested to

produce the certificate issued in respect of him or her under section 22 (3).

(6) An inspector who on the authority of a warrant issued in terms of subsection (1) may enter

upon or enter, and search, any place, premises or vehicle and search any person thereat, thereon or

therein, may use such force as may be reasonably necessary to overcome any resistance to the entry

and search.

(7) An inspector may enter upon or enter, and search, any place, premises or vehicle, and

may search any person thereat, thereon or therein, only if he or she audibly has first demanded

access thereto and has notified the purpose of the entry, unless the inspector on reasonable grounds

is of the opinion that any goods, document, article or item may be destroyed or be lost if access is first

demanded and that purpose notified.

(8) If, during the execution of a warrant in terms of this section, a person claims that any

goods, document, article or item found at, on or in the place, premises or vehicle in question contains

privileged information and refuses the inspection or removal thereof, the inspector executing the

warrant, if of the opinion that the goods, document, article or item may be relevant to and necessary

for the investigation of any complaint or any alleged or suspected act of dealing in counterfeit goods,

must request the registrar of the High Court having jurisdiction, or that registrar's deputy, to seize and

remove such goods, document, article or item for safe custody until the court has made a ruling on the

question whether or not the information in question is privileged.

(9) In undertaking any search for and inspection and seizure of suspected counterfeit goods

an inspector may be assisted by the complainant (if any) or any other knowledgeable person in

identifying goods as suspected counterfeit goods.

7 Duties of inspector following seizure of goods

(1) An inspector who, in exercising his or her powers in terms of section 4 (1), has seized any

suspected counterfeit goods, must-

(a) forthwith seal, clearly identify and categorise these goods and prepare, in

quadruplicate, an inventory of them and cause the person from whom those goods were seized to

check the inventory for correctness, and, if correct, cause that person to make a certificate to that

effect under his or her signature on each original of that inventory. If the seized goods are removed in

terms of paragraph (c), the inspector must endorse that fact under his or her signature on every

original of that inventory, in which case that inventory will also serve as a receipt;

(b) furnish one of the originals of the inventory to the person from whom the

goods were seized and another to the complainant (if any) within 72 hours after the seizure;

goods depot for safe storage, or, if not capable of being removed or transported, declare the goods to

have been seized, and seal off or seal and lock up those goods or place them under guard at the

place where they were found, and thereupon that place will be deemed to be a counterfeit goods

depot; and

(d) by written notice inform the following persons of the action taken by the

inspector in terms of section 4 (1) and of the address of the counterfeit goods depot where the seized

goods are kept:

(i) The person from whom those goods were seized; and

(ii) also-

(aa) the complainant, where the inspector exercised his or her

powers in terms of section 4 (1) pursuant to a complaint laid in terms of section 3 (1); or

(bb) any person who, in relation to those goods, qualifies in terms

of section 3 (1) to be a complainant, but who had not yet so laid a complaint at the time when the

inspector exercised those powers on his or her own initiative as contemplated in section 3 (4).

(2) In any notice in terms of subsection (1) (d) that is issued-

(a) to the complainant, the complainant must be notified of his or her right by

virtue of section 9 (1) (a) to lay a criminal charge, not later than three days after the date of the notice,

against the person from whom those goods were seized (hereafter called the suspect);

(b) to a person qualifying to be a complainant, as contemplated in paragraph (d)

(ii) (bb) of subsection (1), the inspector must invite that person (hereafter called the prospective

complainant) to lay a complaint with him or her, and lay with the South African Police Service a

criminal charge, not later than three days after the date of the notice, against the suspect for having

performed an act of dealing in counterfeit goods that is an offence in terms of section 2 (2).

(3) An inspector may demand from a complainant to disclose any information which may be

relevant to the action that has been taken.

(4) (a) Any person prejudiced by a seizure of goods in terms of section 4 (1), may at any time

apply to the court on notice of motion for a determination that the seized goods are not counterfeit

goods and for an order that they be returned to him or her.

(b) The court may grant or refuse the relief applied for and make such order as it deems just

and appropriate in the circumstances, including an order as to the payment of damages and costs, if

applicable.

sought, it may order, where those goods have been seized pursuant to a complaint laid in terms of

section 3 (1), that the complainant furnishes security to the applicant in respect of those goods in an

amount and manner determined by the court.

8 Storage of seized goods, and access thereto

(1) Goods that have been seized in terms of section 4 (1) must be stored and kept in safe

custody at a counterfeit goods depot until the person in charge of the depot-

(a) is ordered by a competent court in terms of this Act to return, release, destroy or

otherwise dispose of those goods as specified in the order; or

(b) is directed by the inspector concerned, in the circumstances provided for in

subsection (1) (b) or (2) (a), (b) or (c) of section 9, to release those goods to the

suspect.

(2) Goods seized in terms of section 4 (1) will be available for inspection by the complainant, or,

as the case may be, prospective complainant (if any), the suspect and any other interested

person at the counterfeit goods depot on any working day during normal office hours.

(3) The person in charge of the counterfeit goods depot, on the request of the complainant or

prospective complainant (as the case may be) or the suspect, must make the relevant seized goods

available for testing or analysis by or on behalf of any such complainant or the suspect if the person

so in charge, having taken into account the nature of such seized goods, the nature of the tests or

analyses to be conducted, and the competence and suitability of the person by whom the tests or

analyses are to be conducted, is satisfied that a request in that regard is reasonable.

(4) The person in charge of a counterfeit goods depot who is not willing to allow seized goods

under his or her custody to be made available to the suspect for testing or analysis by any person or

by a particular person, must forthwith refer the matter to the complainant or prospective complainant

(as the case may be) who must either confirm or reverse that decision within 48 hours.

(5) (a) Where any such complainant has confirmed the decision not to allow the seized goods

to be made available to the suspect for testing or analysis, that decision must be conveyed in writing

to the suspect who may apply to the court for an order rescinding the decision and allowing those

goods to be made so available.

(b) The court will grant the application if it finds the decision to be unreasonable in the

circumstances.

9 Seized goods to be released if criminal investigation or criminal or civil proceedings not

contemplated against suspect

(1) (a) Where suspected counterfeit goods have been seized by an inspector in terms of

section 4 (1), the complainant or prospective complainant (as the case may be), if he or she wishes to

lay a criminal charge against the suspect with the South African Police Service for having committed

an offence referred to in section 2 (2) and request that a criminal investigation into the matter be

undertaken, must do so not later than three days after the date of the notice referred to in section 7

(2).

(b) If, upon the expiry of that three day period, a criminal charge has not so been laid, the

relevant seized goods must be released to the suspect, subject to subsection (2).

(2) Subject to subsection (3), goods seized in terms of section 4 (1), must be released to the

suspect also-

(a) (i) if the State fails within 10 working days after the date of the notice

given to the suspect in terms of paragraph (d) (i) of section 7 (1) to inform the suspect, by further

written notice, of its intention to institute a criminal prosecution against him or her for having

committed an offence referred to in section 2 (2); and

(ii) if any person to whom notice has been given in terms of paragraph

(d) (ii) of section 7 (1) fails within 10 working days after the date of that notice to inform the suspect,

by further written notice, of the person's intention to institute against the suspect civil proceedings

founded on an act of dealing in counterfeit goods on the part of the suspect; or

(b) in any case where the State or that person has so given further notice, if that

criminal prosecution or those civil proceedings (as the case may be) is or are not instituted within 10

court days after the date of the relevant further notice; or

goods to the suspect. However, such an instruction may not be given and the relevant seized goods

may not be so released at any time after a criminal prosecution involving those goods has been

instituted against the suspect; or

(d) upon the order of a competent court.

(3) (a) For the purpose of effecting the release of goods in terms of subsection (1) (b) or (2)

(a), (b) or (c), the inspector who had seized those goods in terms of section 4 (1) must issue a notice

to the person in charge of the counterfeit goods depot where those goods are detained, directing that

the relevant goods, as specified in the copy of the inventory attached to that notice, be released to the

person specified therein, and at the same time cause a copy of that notice to be served on the

suspect and on the complainant.

(b) The person in control of a counterfeit goods depot to whom a notice has been issued in

accordance with the provisions of paragraph (a), must release the relevant goods in accordance with

that notice, on the fourth day after the date of that notice, unless a competent court has ordered

otherwise.

10 Other orders that may be issued by court

(1) Without derogating from the powers of a court in any civil or criminal proceedings relating

to counterfeit goods, such a court may order-

(a) that the goods in question, where they have been found to be counterfeit

goods, be delivered up to the owner of the intellectual property right the subject matter of which has

been unlawfully applied to those goods, or up to any complainant deriving his or her title from that

owner, irrespective of the outcome of the proceedings;

(b) that those goods be released to any person specified in the order;

the person from whom those goods were seized and pays that person's costs;

(d) that the accused or the defendant or respondent (as the case may be)

discloses the source from which those goods, if found to be counterfeit goods, have been obtained,

as well as the identity of the persons involved or ostensibly involved in the importation, exportation,

manufacture, production or making, and the distribution, of the counterfeit goods and in the channels

of distribution of those goods.

(2) If a court in any civil or criminal proceedings has ordered the delivery up to any person of

goods found to be counterfeit goods derived from any process of counterfeiting contemplated in

paragraph (b) or (c) of the definition of 'counterfeiting' in section 1 (1), then, notwithstanding the

provisions of any law, those goods-

(a) may not be released into the channels of commerce upon the mere removal

of the subject matter of the intellectual property right that was unlawfully applied to those goods;

(b) if imported, may not be exported in an unaltered state,

unless the court, on good cause shown, has ordered otherwise.

11 Court may authorise search and attachment, pending institution of civil proceedings, to

preserve evidence relevant to infringement of intellectual property right, etc

(1) The owner of an intellectual property right who is aware or has reasonable grounds to

believe that an act of dealing in counterfeit goods has taken or is taking place or is likely to take place,

may, without prejudice to any other remedy that he or she may have in law, apply ex parte to a judge

in chambers for an order-

(a) directing the sheriff or another person designated by the court (hereafter

referred to as a designated person) to enter upon or enter any specified place or premises

accompanied by such other persons as the court may specify (if any) and there to search for, and, if

found, seize and remove, such documents, records or other material as the court may specify and any

such goods, alleged to be counterfeit goods, as may be so specified (hereafter referred to as subject

goods), that are at, on or in such place or premises, and to attach such documents, records, material

and goods;

(b) directing the respondent to point out to the sheriff or designated person all

subject goods and to disclose and make available to him or her all documents and material that are

relevant in order to determine whether the subject goods in question are counterfeit goods or are

relevant to any transactions or dealings in counterfeit goods at, on or in the relevant place or

premises or elsewhere, and to permit the sheriff or designated person to attach such subject goods,

as well as such documents and material (hereafter jointly referred to as ancillary materials) and

remove them for detention in safe custody;

(i) interfering with the state of the subject goods or ancillary materials

during the search, seizure, attachment or removal;

(ii) carrying out or continuing with the act of dealing in counterfeit goods

that gave rise to the application;

(d) granting such further or alternative relief as the court considers appropriate.

(2) An application in terms of subsection (1) will be heard in camera unless the court is

satisfied that the attendance of the proceedings by members of the public or any class or group of

such members will not cause the applicant to suffer any prejudice or to be prejudiced when seeking to

protect or enforce his or her relevant intellectual property right, and that such attendance, should the

court order the relief sought, will not impair or detract from the efficacy of the order or the execution

thereof.

(3) The court will not grant an application brought in terms of subsection (1) unless it

considers that the applicant has a prima facie claim against the respondent for the infringement of an

intellectual property right and that-

(a) the applicant's right to discovery of documents in any proceedings to be

instituted by him or her is likely to be frustrated, either by reason of the nature of the suspected

counterfeit goods in relation to which the application is made or due to other circumstances; or

(b) should the normal court procedure be followed or implemented, the goods

relevant to the issues in those proceedings, or evidence in connection with transactions or dealings

with the latter goods, are likely to be destroyed or to be so altered or placed or be otherwise disposed

of in such manner as to effectively preclude the applicant from having access to the relevant goods.

(4) A court hearing an application so brought, may order that the relief applied for, be granted,

subject to the terms and conditions specified in the order, or that relief be refused, or may make any

other order that it deems just and appropriate in the circumstances.

(5) For the purposes of subsection (4), the court may-

(a) order that the sheriff or designated person may rely upon the assistance of

knowledgeable persons, specified in the order, in identifying the subject goods and ancillary materials;

(b) order the applicant to furnish security to the respondent in an appropriate

amount equal to a specified percentage of the value of the goods attached;

applicant's intellectual property right;

(d) issue a rule nisi calling upon the respondent to show cause before or on a

specified day (which must fall on a date within 20 court days of the granting of the rule nisi) why an

interdict restraining the respondent from infringing the applicant's intellectual property right and any

order granting the applicant further relief, including an order directing the delivery of the subject goods

up to the applicant, should not be granted or confirmed;

(e) order that the applicant, should he or she wish to institute proceedings

against the respondent for the infringement of the applicant's intellectual property right, must do so not

later than the date specified in the order.

(6) If the court has not made an order in terms of subsection (5) (e), an applicant who wishes

to institute the proceedings contemplated in that subsection must do so within 20 court days of the

date of the order made in terms of subsection (4) and whereby his or her application was granted.

12 Provisions relating to execution of court order authorising search for counterfeit goods and

evidence relevant thereto

(1) When the court in terms of section 11 (4) has issued an order authorising a search of any

place or premises, the respondent will be entitled to have his or her attorney present during the

search and further execution of the order at, on or in such place or premises, if the presence of that

attorney can be secured with due speed after the sheriff or designated person has arrived at the place

or premises with a view to conducting that search and further executing that order.

(2) The sheriff or designated person, for the purpose of conducting the search, must be

accompanied by the applicant's attorney who, after service, at the place or premises where the search

is to be conducted, of a copy of the application and order on the respondent, or, if the respondent is

not present, on a responsible person ostensibly in control of such place or premises, must explain the

terms of the order to the respondent or that person and inform him or her that the respondent is

entitled to have his or her attorney present during the execution of the order provided the presence of

the respondent's attorney is secured with due speed.

(3) The sheriff or designated person conducting the search, must-

(a) prepare an inventory of the subject goods and ancillary materials attached by

him or her on the authority of an order in terms of section 11 (4) and furnish a copy of the inventory to

the applicant and to the respondent;

(b) allow the parties to peruse the ancillary materials that have been so attached

and to make copies thereof or excerpts therefrom; and

or analysed on their behalf.

(4) When a search authorised by an order in terms of section 11 (4) has been completed, the

applicant's attorney must, without delay-

(a) make a statement under oath or affirmation in which he or she reports fully on

the conducting of the search and on any other steps taken by him or her in relation to or pursuant to

the search with a view to complying with the requirements of that order or an order in terms of section

11 (5) and the requirements imposed by this section, and, where any subject goods or ancillary

materials have been attached on the authority of an order in terms of section 11 (4), annex to that

statement a copy of the inventory prepared in relation to the relevant subject goods and ancillary

materials in compliance with subsection (3) of this section;

(b) cause the original of that statement, together with its annex, to be filed in the

office of the registrar of the court in question and cause a certified copy thereof to be served on the

respondent.

13 Court may order unsuccessful claimant in proceedings for infringement of intellectual property

right to pay compensation

(1) Where in any proceedings the claim of a person (hereafter called the erstwhile applicant) in

respect of an infringement of his or her intellectual property right is dismissed, the court may order the

erstwhile applicant to pay appropriate compensation to the erstwhile respondent for any injury or

prejudice caused to or suffered by him or her in consequence of any measures and steps taken in

terms of section 11 or 12 on the authority of an order contemplated in section 11.

(2) For the purposes of subsection (1) and section 14-

(a) 'erstwhile applicant' means the owner of an intellectual property right who

was the successful applicant in any ex parte application brought in terms of section 11 (1); and

(b) 'erstwhile respondent' means the person against or in relation to whom relief

was sought pursuant to that application.

14 Court may order release of attached subject goods and ancillary materials in certain

circumstances

If an erstwhile applicant does not, before the date specified in an order contemplated in section 11 (5)

(e) or within the period referred to in section 11 (6), whichever is applicable, institute proceedings

against the erstwhile respondent for the infringement of the erstwhile applicant's intellectual property

right, or if, in the case where those proceedings have been so instituted, the erstwhile applicant's

claim has been dismissed by the court, the court, on the application of the erstwhile respondent or

any other interested person claiming to be entitled to the subject goods and ancillary materials, may

order that such goods and materials be released, respectively, to the erstwhile respondent or to such

interested person who has proved his or her entitlement thereto.

15 Customs authorities' powers in relation to counterfeit goods being imported into

Republic

(1) The owner of an intellectual property right may apply to the Commissioner for Customs and

Excise (hereafter called the Commissioner), to seize and detain all goods-

(a) which are counterfeit goods featuring, bearing, embodying or incorporating the

subject matter of that intellectual property right or to which the subject matter of that

right has been applied;

(b) and which are imported into or enter the Republic during the period specified in the

application. However, that period may not extend beyond the last day of the period for

which that intellectual property right subsists.

(2) For the purposes of subsection (1), the applicant may furnish to the Commissioner a

specimen of the goods that are protected goods of the nature contemplated in paragraph (a)

of the definition of 'protected goods' in section 1 (1) (if any) and to which the subject matter of

his or her relevant intellectual property right relates, and sufficient information and particulars

as to the subsistence and extent of that intellectual property right and as to his or her title to

that right.

(3) The Commissioner must consider and deal with an application in terms of subsection (1)

without delay, and must grant the application if satisfied on reasonable grounds-

(a) that the goods claimed to be protected goods, are prima facie protected goods;

(b) that the intellectual property right, the subject matter of which relates to the protected

goods, prima facie subsists; and

(4) When an application made in terms of subsection (1) has been granted and notice thereof

given in terms of subsection (5), all goods that are counterfeit goods of the type with

reference to which that application was made (hereafter called the stipulated goods), or

suspected on reasonable grounds to be stipulated goods, and imported into or entering the

Republic from time to time during the period determined by the Commissioner (which may be

shorter than the period applied for), may be seized and detained by the customs authorities in

performing their functions under the Customs and Excise Act, 1964 (Act 91 of 1964), subject

to the provisions of subsections (6) and (7) of this section.

(5) The Commissioner, by written notice (issued within a reasonable time after having decided

the application) must notify the applicant whether the application has been granted or refused,

and-

(a) if granted, state the period during which any stipulated goods being imported into or

entering the Republic will be made subject to seizure and become subject to

detention under subsection (4);

(b) if refused, state the reasons for the refusal.

(6) For the purposes of acting under subsection (4) in relation to goods that are stipulated goods

or suspected on reasonable grounds to be stipulated goods-

(a) any member of the customs authorities will act mutatis mutandis as if he or she were

an inspector who, in connection with counterfeit goods or alleged or suspected

counterfeit goods, were exercising the powers contemplated in section 4 (1) on own

initiative in terms of section 3 (4);

(b) the following provisions of this Act will apply mutatis mutandis in relation to any

member of the customs authorities, namely-

(i) the provisions in accordance with or subject to which the powers

contemplated in section 4 (1) may be exercised by an inspector so acting on

own initiative;

(ii) the provisions by which any other power or any right, function, duty,

obligation, exemption, indemnity or liability is conferred or imposed on an

inspector so acting.

However, the Minister, at the request of the Minister of Finance acting on the

recommendation of the Commissioner, may by notice in the Gazette exempt the

members of the customs authorities from any of the provisions made applicable by

this paragraph if satisfied that there are suitable and appropriate alternative

arrangements made by or under the Customs and Excise Act, 1964, that cover the

purpose of the provision from which exemption is sought.

(7) The customs authorities will not be obliged to act in terms of subsection (4) unless the owner

of the intellectual property right, the subject matter of which is alleged to be featured or borne

by or incorporated or embodied in or to have been applied to stipulated goods, furnishes to

the Commissioner security in the manner and amount that the Commissioner may require to

indemnify the customs authorities and their members against any liability that may be incurred

pursuant to the seizure and detention of goods or anything done in relation to goods when

acting or purportedly acting under this section, and to cover any expenses that may be

incurred in effecting the seizure and detention of the goods.

(8) The provisions of this Act will not be construed so as to render the customs authorities or any

of their members liable for-

(a) any failure to detect or seize stipulated goods;

(b) the inadvertent release of any such goods; or

(9) For the purposes of this section, 'customs authorities' means the South African Revenue

Service in its Division: Customs and Excise, the members of which are the Commissioner and

those officials who are 'officers' within the contemplation of the definition of 'officer' in section

1 (1) of the Customs and Excise Act, 1964.

16 Evidence and presumptions

(1) Subject to section 5 (4) (b), any statement taken down or other documentary evidence

procured by an inspector in the course of exercising any power in terms of section 4 (1), may

be made available to a complainant at his or her request. The complainant may make copies

of or extracts from any such statement or documentary evidence and must return the original

statement or document to the inspector.

(2) An inspector may be called as a witness by any party to civil or criminal proceedings

concerning counterfeit goods, or by the court, whenever the inspector's conduct, the exercise

or performance of his or her powers or duties in terms of section 4 (1), 5, 6, 7 or 9 or the

nature of the circumstances in or activities with reference to which those powers or duties

were exercised or performed, is in issue or relevant in those proceedings.

(3) In any civil proceedings concerning an act of dealing in counterfeit goods by any person, it will

be permissible, if relevant, to present evidence about that person's conviction on account of

an offence founded on the same act of dealing in counterfeit goods.

(4) (a) A statement in the prescribed form, made under oath or affirmation by an

inspector, to the effect that the goods specified under his or her signature in the

inventory attached to that statement, are goods seized by him or her from a specified

person at a specified place and on a specified date, will, upon production to the

court, be admissible in evidence and be sufficient proof of the facts stated therein in

any civil or criminal proceedings concerning counterfeit goods or any act of dealing

therein, if relevant to those proceedings and if the inventory has been prepared by the

inspector, and has been certified to be correct, as required by section 7 (1) (a).

(b) If a statement has been produced and handed in as evidence in terms of paragraph

(a), the court, in its discretion and notwithstanding the provisions of that paragraph,

may order that the inspector who made that statement be directed or subpoenaed to

appear before the court to give oral evidence concerning any matter mentioned or

dealt with in that statement.

(5) Where the subsistence of an intellectual property right in respect of protected goods or any

person's title to or interest in such intellectual property right is in issue in any civil or criminal

proceedings concerning counterfeit goods, the subsistence of, title to or interest in such

intellectual property right, where it is alleged-

(a) to encompass the rights in respect of a trade mark as contemplated in

paragraph (a) of the definition of 'intellectual property right' in section 1 (1), may be proved in

accordance with the provisions of sections 49, 50 and 51 of the Trade Marks Act, 1993;

(b) to be copyright in a work, may be proved in accordance with the provisions of

section 26 (12) of the Copyright Act, 1978, which provisions will apply mutatis mutandis;

under section 15 of the Merchandise Marks Act, 1941, may be proved by producing to the court a

copy of the Gazette in which that notice was published, accompanied by a statement under oath or

affirmation made by the Minister or any officer in the Department of Trade and Industry designated by

the Minister, which is to the effect that such notice has not been withdrawn or amended in its

essence.

However, the provisions of this subsection will not be construed so as to detract from the

power of the court, in relation to any such matter or any aspect thereof-

(i) to require oral evidence to be given;

(ii) in the case of a High Court, to order that the evidence of a person who

resides or is for the time being outside the area of jurisdiction of that Court, be taken by means of

interrogatories.

(6) Where any person who conducts business in protected goods featuring, bearing,

incorporating or embodying the subject matter of a particular intellectual property right is proved to

have been found in possession of suspected counterfeit goods to which the subject matter of the

same intellectual property right has been applied-

(a) it will, in any civil proceedings concerning an act of dealing in counterfeit

goods founded on that person's possession of the suspected counterfeit goods, be presumed, until

the contrary is proved, that such person was in possession of the latter goods for the purpose of

dealing therein if the quantity of those goods is more than that which, in the circumstances,

reasonably may be required for his or her private and domestic use;

(b) the same presumption will, in any criminal proceedings arising from that

person's possession of the suspected counterfeit goods, apply mutatis mutandis unless credible

evidence in rebuttal of the fact presumed, is tendered.

17 Liability for damage or loss arising pursuant to application of Act

(1) Any person suffering damage or loss caused by the wrongful seizure, removal or detention of

goods alleged to be counterfeit goods, or by any action contemplated in section 7 (1) (a), (b)

or (c) or (2) wrongfully taken by an inspector with reliance on that section read with section 4

(1), or caused during or pursuant to the seizure, removal or detention of such goods in terms

of this Act, will be entitled to claim compensation for that damage or loss which claim, subject

to subsection (2), will be against the complainant and not against the State, the inspector or

the person in charge of the counterfeit goods depot where those goods are or were detained.

(2) The State or such inspector or the person in charge of the relevant counterfeit goods depot,

as the case may be, will be liable in respect of a claim contemplated in subsection (1) only if-

(a) in the seizure or removal of the alleged counterfeit goods, the inspector, or, in the

detention and storage of those goods, that person so in charge or the inspector

(depending on the circumstances), has been grossly negligent; or

(b) the inspector or that person so in charge (as the case may be), in the seizure,

removal, detention or storage of those goods, acted in bad faith.

(3) Any reference in paragraphs (a) and (b) of subsection (2) to an inspector or to a person in

charge of a counterfeit goods depot (however expressed) will be construed so as to include

any person acting on the instruction or under the supervision of the inspector or the person so

in charge, as the case may be.

18 Miscellaneous offences

A person will be guilty of an offence(

a) upon failing to comply with any request, direction, demand or order made or given by

an inspector in accordance with the provisions of this Act;

(b) when obstructing or hindering an inspector in performing his or her functions under

this Act;

seal applied by an inspector in terms of this Act or removes any goods, documents,

articles, items, objects or things sealed or sealed-off by an inspector or detained or

stored at a counterfeit goods depot in terms of this Act; or

(d) when, if asked in terms of section 5 (1) (f) for information or an explanation relating to

a matter within the knowledge of that person, he or she-

(i) refuses or fails to give that information or explanation; or

(ii) gives information or an explanation knowing it to be false or misleading.

19 Penalties

(1) Any person convicted of an offence referred to in section 2 (2), will be punishable-

(a) in the case of a first conviction, with a fine, in respect of each article or item involved

in the particular act of dealing in counterfeit goods to which the offence relates, that

may not exceed R5 000,00 per article or item, or with imprisonment for a period that

may not exceed three years, or with both such a fine and such term of imprisonment;

(b) in the case of a second or any subsequent conviction, with a fine, in respect of each

such article or item, that may not exceed R10 000,00 per article or item, or with

imprisonment for a period that may not exceed five years, or with both such a fine

and such term of imprisonment.

(2) Any person convicted of an offence referred to in section 18, will be punishable with a fine or

imprisonment for a period that may not exceed six months.

(3) (a) A court that has convicted a person of an offence contemplated in section 2 (2) must,

when considering which penalty to impose, amongst others take into account any risk to

human or animal life, health or safety or danger to property (whether movable or immovable)

that may arise from the presence or use of the counterfeit goods in question.

(b) Without detracting from the discretion that a court in criminal proceedings has with

regard to sentencing, a court that has convicted any person of an offence referred to

in section 2 (2) may take into account, in mitigation of sentence, any evidence to the

effect that such person, fully, truthfully and to the best of his or her ability had

disclosed to an inspector who acted against him or her in terms of section 4 (1) or to

a member of the South African Police Service who investigated that offence, all

information and particulars available to that person in relation to any one or more, or

all, of the following matters (whichever may have been applicable in the

circumstances):

(i) The source from which the counterfeit goods involved in the commission of

the offence, were obtained;

(ii) the identity of the persons involved in the importation, exportation,

manufacture, production or making of those counterfeit goods;

(iii) the identity and, if reasonably demanded, the addresses or whereabouts of

the persons involved in the distribution of those goods;

(iv) the channels for the distribution of those goods.

(4) (a) The Minister may from time to time by notice in the Gazette increase the amounts of the

fines mentioned in paragraphs (a) and (b) of subsection (1).

(b) That notice must be laid on the table in the National Assembly, for its consideration and

approval, within 14 days after the date on which it is published in the Gazette, if the National

Assembly is then in session, or, if it is not then in session, within 14 days of the

commencement of its next session.

20 Orders permissible following conviction of person of offence contemplated in section 2 (2)

(1) Subject to section 10, the court having convicted a person of an offence contemplated in

section 2 (2) may declare the counterfeit goods in question to be forfeited to the State or order

that those goods and their packaging, and, where applicable, any tools that were used by or

on behalf of the convicted person for the manufacturing, production or making of those or any

other counterfeit goods or for the unlawful application to goods of the subject matter of any

intellectual property right, be destroyed.

(2) Any person who submits any counterfeit goods purchased by him or her (hereafter called the

aggrieved person), to an inspector, together with proof of the price that was paid for those

goods, will be entitled to receive payment of a sum of money equivalent to three times the

amount of that price, in the following circumstances:

(a) The person who had sold those counterfeit goods must have been convicted of an

offence referred to in section 2 (2) founded on the sale of those goods. Alternatively,

an order, against the seller, must have been made in terms of section 10 (1) (a)

directing that those goods be delivered up to the owner of the intellectual property

right, the subject matter of which was unlawfully applied to those goods, or up to a

complainant deriving his or her title from that owner.

(b) The aggrieved person must have co-operated fully in the prosecution of the seller for

that offence.

order in terms of section 10 (1) (a), has also issued an order awarding that sum of

money to the aggrieved person and directing the seller to pay that award. However,

the court must make the latter order if satisfied that the requirements of paragraphs

(a) and (b) have been met.

(3) The provisions of subsection (2) will apply and be applied, mutatis mutandis, in relation to and

for the benefit of any person who, otherwise than by way of a transaction of purchase and

sale, has acquired, in consideration for value given by him or her, goods that are counterfeit

goods.

21 Civil or criminal liability under other laws and institution of civil or criminal

proceedings thereunder not affected by this Act

Subject to the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), and the Criminal

Procedure Act, 1977 (Act 51 of 1977), the provisions of this Act do not detract from a person's civil or

criminal liability, in terms of any other law, on account of his or her infringement of any intellectual

property right or from the capacity or competence in terms of any law to institute civil or criminal

proceedings in respect of such infringement.

[S. 21 substituted by s. 3 of Act 25 of 2001.]

22 Minister's power to appoint or designate inspectors

(1) The Minister may appoint any fit and proper person as an inspector for the purposes of this

Act.

(2) (a) The Minister, by notice in the Gazette, may designate any specified class or category of

persons to be inspectors for the purposes of this Act.

(b) The Minister, in a like manner, may amend or withdraw such a notice at any time.

(3) The Minister or any official acting under the authority of the Minister, must issue to each of the

inspectors contemplated in this section a certificate in the prescribed form stating that the

person in whose name it has been issued has been appointed or designated an inspector (as

the case may be) in terms of or by virtue of this Act.

23 Minister's powers regarding counterfeit goods depots

(1) The Minister, by notice in the Gazette, may from time to time designate any place defined in

the notice to be a counterfeit goods depot for the purposes of this Act, and may in a like

manner amend or withdraw such a notice at any time.

(2) The Minister must in respect of a counterfeit goods depot appoint any fit and proper person as

the person in charge of the counterfeit goods depot.

24 Regulations

The Minister may make regulations not inconsistent with the provisions of this Act-

(a) in relation to any matter which, in terms of this Act, may or must be prescribed;

(b) prescribing any inventory to be prepared or made in terms of this Act;

and administration of a counterfeit goods depot and the proper care of the goods

detained therein;

(d) in relation to the manner or form in which any application (other than any application

to a court of law) is to made in terms of this Act, and may prescribe forms for that

purpose; and

(e) in relation to any other administrative or procedural matters that may be necessary or

expedient for the proper and effective administration of this Act.

25 This Act binding on State

This Act binds the State.

26 Short title and commencement

This Act will be called the Counterfeit Goods Act, 1997, and will come into operation on a date to be

determined by the President by proclamation in the Gazette.

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Article 1. Contracting parties.
1. The Parties of this Public Offer (paid service agreement), hereinafter referred to as the “Agreement” or “Offer”, are, as follows:

a) Executor is a person, who makes this Offer and who executes this Agreement in accordance with its terms and conditions: Solcity World Investment and Development; and

b) Customer is a person, who accepts this Offer and who is the author of any publication.

Article 2. Acceptance.

1. The Customer shall accept this Offer in case of and after the following activities:

a) fill in and send to the Executor an application in electronic format in the form established by this Agreement and posted on the Executor’s official website; and

b) provide the author’s abstract specifying what material was created by the author; and

c) provide a list of all key words (tags) that enable finding the location of the author’s abstract of the Customer on the Executor’s website; and

d) post (“upload”) the material itself on the Executor’s official website; and

e) pay for the Executor’s services in the amount and following the procedure set forth by this Agreement.

2. The Executor shall verify the Customer’s data and post the information about the Customer and his/her work of authorship on SciReg.org in Internet. From this moment on, the Customer shall be considered as an acceptor of this Offer and a Party to this Agreement.

3. The Executor shall be entitled, without giving any reasons, to refuse the Customer to accept this Offer and the Customer unconditionally, entirely and irrevocably agrees with this provision.

Article 3. Scope of the Agreement.

1. The Executor hereof shall render services on establishing, formation and maintenance of the Copyright register in electronic format on the Executor’s official website in Internet.

2. The Executor hereof shall render to the Customer paid services on posting (publishing) of information about the applicant as the author of the material under the terms and in accordance with this Agreement.

3. The work of authorship shall be understood by the Parties as a subject matter of copyright established by the Civil Code or other laws of the Author’s Country of domicile.

4. The Executor shall publish information (data), hereinafter referred to as the “summary”, about the applicant as the author of the material in the Register posted on the Executor’s official website in Internet under the terms set forth by this Agreement.

5. The Executor shall be entitled, at his own discretion and without coordination with the Customer, to assign his obligations for execution of this Agreement to any third party, and the Customer unconditionally agrees with this provision.

Article 4. Register.

1. The Register shall be an ordered and standardized register containing a summary of the Customer: Author’s information, including co-authors, name of the work of authorship, publication date, author’s abstract revealing the content of the work of authorship and its unique character, as well as a unique number of posting in the Register assigned to the author and his/her material automatically by the Executor, key words (tags) that enable any person to find information about the author and his/her publication posted in the Register on the Executor’s official website in Internet.

2. The author’s abstract shall be a brief description of the author’s publication designating its unique character and showing that the Customer is its author.

3. The Register shall be maintained in electronic form on the Executor’s official website in Internet.

4. Information about the author, work of authorship and other information required by the rules for information posting in the Register, set forth by the Executor, except for the unique number, shall be posted by the Customer individually on the Executor’s official website in Internet.

5. Both the Register and the official website shall be the Executor’s property.

6. Any and all information posted by the Customer in the Register in accordance with the terms set forth by this Agreement shall be the Executor’s property. Hereby, the Customer shall not transfer copyright for his/her work of authorship to the Executor.

7. The rules for maintenance of the Register, its execution, posting of any details (information) in it shall constitute Appendix 1 to this Agreement forming an integral part hereof. The rules shall be issued exclusively by the Executor. The Executor, without coordination with the Customer and the Customer’s consent, shall have the right to make any changes in and/or amendment to the Register maintenance rules and the Customer unconditionally agrees with this provision. The Register maintenance rules shall be unconditionally mandatory for the Customer.

Article 5. Obligations of the Parties.

1. The Parties hereto shall (hereby shall be obliged to) unconditionally, voluntarily, conscientiously, and accurately follow all provisions of this Agreement, as well as any and all supplements, amendments and/or alterations hereto made under the terms set forth by this Agreement.

2. The Customer shall pay for the Executor’s services following the procedure and in the amount established by this Agreement.

3. The Customer, in contemplation of his/her death, shall be obliged to bind defendants to the terms of this Agreement.

4. If the Customer’s copyright is assigned to a third party, he/she shall be obliged to bind such third party to his/her obligations hereunder.

5. The Customer shall have an exclusive right to refer, in any form, to his/her summary (synopsis, author’s abstract) posted in the Register on the Executor’s official website in Internet in case of complete and fair execution of his/her obligations under this Agreement.

Article 6. Payment for the Executor’s services. Agreement price.

1. The Customer shall pay for the Executor’s services following the procedure and in the amount established by the provisions of this Article.

2. The price for one posting by the applicant of one his/her summary in the Register shall be 20 (twenty) US Dollars – price of this Agreement.

3. The procedure for paying the amount set forth by this Article of the Agreement shall be determined in Appendix 1 to this Agreement.

4. The applicant shall pay the amount stated in para 2 of this Article (pay for the Executor’s service) to the Executor at the time of registration.

5. The amounts paid hereunder by the Customer to the Executor shall be nonreturnable.

6. Each Party shall individually pay any and all own taxes, duties and/or fees established by the legislation of the Party in connection with execution of the terms hereof by the Party. Neither party shall be a fiscal agent of the other Party.

Article 7. Withdrawal from the Agreement.

1. The Customer shall be entitled to withdraw from execution of this Agreement in the form of non-payment of a next settlement set forth by this Agreement.

2. The Executor shall have the right, including in his sole discretion, to withdraw from execution of this Agreement without reimbursement to the Customer of any expenses and/or losses (damages), as well as without payment of any penalty and/or penalty fee and/or any other forfeit, and the Customer unconditionally and entirely agrees with this provision, in the following case (cases):

a) failure to pay by the Customer for the services to the Executor in the amount and under the terms set forth by this Agreement; and/or

b) provision of false information by the Customer; and/or

c) any other technical reasons.

Article 8. Information sharing.

1. Unless otherwise provided for in this Agreement, the Parties hereto may share information, and this information for the Parties shall be regarded as official, by phone, fax, sms, Skype, via e-mail and/or in writing (in hard copy).

2. The Parties hereto may share documents and these documents shall be legally effective for the Parties and considered properly received by the Parties by fax, Skype, via e-mail, in writing in hard copy, unless otherwise provided for in this Agreement. A signature affixed to the document forwarded by any Party via e-mail shall be accepted by the Parties. A signature affixed to the document forwarded by any Party by fax shall be accepted by the Parties. A signature affixed to the document forwarded by any Party via Skype shall be accepted by the Parties.

3. Along with the afore-mentioned, the Parties may have electronic documentary interchange and affix their electronic digital signatures (EDS) on any and all documents.

Article 9. Arbitration.

1. All disputes arising between the Parties in relation to interpretation of this Agreement and/or execution of this Agreement shall be settled by the Parties in the form of bilateral negotiations.

2. If the Parties fail to reach a compromise during negotiations, they shall settle their dispute in the arbitration court (arbitration) of the Chamber of Commerce and Industry of British Virgin Islands.

3. As the rules of procedural law based on which the Parties shall settle their dispute, the Parties shall accept the rules of arbitration court (arbitration) of the Chamber of Commerce and Industry of British Virgin Islands.

4. As the rules of substantive law based on which the Parties settle their dispute, the Parties shall accept this Agreement and rules of international agreements (conventions) regulating copyright legal relationship.

Article 10. Other terms and conditions.

1. This Agreement is made in written and electronic form, in one counterpart, which:

a) Agreement in writing is kept in the Executor’s office, and

b) posted in electronic form on the Executor’s official website in Internet.

2. Alteration, amendments and/or supplements to this Agreement shall be made in written and electronic form by the Executor individually, in a single hard counterpart and a single electronic counterpart posted on the official website in Internet and the Customer unconditionally agrees with this provision.

3. Changes in this Agreement shall be made by the Executor as a new version of the Agreement.

4. If the Customer disagrees with new terms and conditions, he/she shall have a right to withdraw from the Agreement following the procedure and terms set forth by this Agreement.