BORDER MEASURES AND ANTI-COUNTERFEITING ENFORCEMENT UNDER INDIAN IPR LAW.

BORDER MEASURES AND ANTI-COUNTERFEITING ENFORCEMENT UNDER INDIAN IPR LAW.

I. Introduction

Border enforcement is a central pillar of India’s strategy to combat counterfeiting and piracy. With the growth of international trade and digital commerce, the movement of infringing goods through ports, airports and land customs stations has become increasingly sophisticated. India responded to this challenge by integrating intellectual property protection into customs law, creating a specialised regulatory framework to prevent the import or export of counterfeit and pirated goods.

The legal architecture is principally anchored in the Customs Act, 1962, supplemented by the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 (“IPR Rules, 2007”). These rules operationalise border control measures in line with the TRIPS Agreement, ensuring that enforcement machinery remains both rights-holder friendly and sensitive to legitimate trade.

II. Statutory and Regulatory Framework

1. Customs Act, 1962

Section 11 of the Customs Act empowers the Central Government to prohibit import and export of goods to protect trademarks, copyrights, patents, designs and geographical indications. This provision forms the statutory foundation for border enforcement.

2. IPR (Imported Goods) Enforcement Rules, 2007

The 2007 Rules constitute the principal enforcement mechanism. Their salient features include:

• Recordation of IP rights with Customs through a centralised digital platform;
• Suspension of clearance of allegedly infringing goods upon detection;
• Examination and seizure of suspected consignments;
• Notice to the rights holder for verification and initiation of action;
• Obligations on importers to prove legitimacy of goods;
• Provisional measures without a court order in appropriate cases.

These Rules apply to trademarks, copyright, designs, geographical indications and patented products, though in practice, enforcement is most prominent in the trademark and copyright domains.

III. Recordation of Rights with Customs

The cornerstone of border protection lies in the recordation of IP rights before Customs. Rights holders must file:

• Proof of registration,
• Product identification details,
• Authorised importers,
• Supply chain information, and
• Digital samples of genuine goods.

Customs thereafter enters the information into its database, enabling officers at ports to flag suspicious consignments. Recordation remains valid for five years and is renewable.

This proactive registration system significantly enhances the detection capability of Customs, enabling officers to intercept infringing consignments even without specific intelligence.

IV. Suspension and Seizure of Goods

When Customs officers, upon examination or profiling, suspect that goods infringe recorded IP rights, they may suspend clearance. The importer and rights holder are notified. If the rights holder confirms the suspicion and initiates appropriate legal proceedings, Customs may formally seize and confiscate the goods.

The seizure is generally followed by:

1. Adjudicatory proceedings under the Customs Act;
2. Destruction of goods, usually at the cost of the rights holder;
3. Invocation of penalties against importers engaging in counterfeit trade.

The Rules permit provisional suspension even in absence of recordation, but such action must be supported by a written complaint and prima facie evidence. This ensures that urgent situations are not left without remedy.

V. Role of Customs Officers and Enforcement Mechanisms

1. Risk Management and Profiling

Customs employs sophisticated risk management systems to profile consignments based on country of origin, importer history, trade patterns and known counterfeiting hotspots.

2. Examination and Expert Assistance

Officers may seek assistance from rights holders to verify authenticity. Samples may be sent for laboratory testing in cases involving pharmaceuticals, electronics or other high-risk categories.

3. Destruction of Counterfeit Goods

Confiscated goods are ordinarily destroyed to prevent re-entry into the marketplace. The rules explicitly prohibit disposal through auction except in rare situations where removal of the infringing mark is viable.

4. Coordination with Other Agencies

Customs works alongside the police, Directorate of Revenue Intelligence and international agencies (such as WCO) to investigate cross-border counterfeiting networks.

VI. Anti-Counterfeiting Enforcement: Judicial Approach

Indian courts have recognised the importance of border enforcement as essential to safeguarding public interest, particularly in sectors such as pharmaceuticals, auto-components, FMCG products and luxury goods. Interim injunctions are frequently granted against importers dealing in counterfeit goods, and courts have endorsed destruction as the preferred remedy.

The judiciary has emphasised that counterfeiting is not merely an infringement of private IP rights but a threat to consumer safety, revenue generation and fair competition.

VII. Key Challenges in Border Enforcement

Despite considerable progress, several systemic challenges remain:

1. Detection Limitations

Without detailed technical information from rights holders, Customs officers may find it difficult to distinguish sophisticated counterfeits from genuine products.

2. Trade Facilitation versus Enforcement

Balancing rapid clearance of legitimate trade with stringent enforcement is a continuing operational challenge.

3. Misuse by Rights Holders

Instances have been reported where rights holders attempt to use border measures to restrain legitimate parallel imports. Indian law prohibits such misuse, but vigilance remains required.

4. Limited Coverage of Outbound Consignments

The 2007 Rules primarily target imports; enforcement against export of counterfeit goods is comparatively underdeveloped.

5. Fragmented Cooperation Among Agencies

Effective anti-counterfeiting action requires seamless coordination between Customs, police, IP offices and judicial bodies—a level of synergy still evolving.

VIII. Strengthening the Enforcement Ecosystem

To enhance the effectiveness of border measures, several reforms may be considered:

• Capacity building for Customs personnel through IP-specific training programmes;
• Harmonised protocols for rights holders across ports;
• Greater technological integration, including digital authentication tools, blockchain-based traceability and AI-assisted risk profiling (without replacing legal discretion);
• International cooperation through MoUs and data-sharing frameworks;
• Strengthening of export-side monitoring, particularly for counterfeit pharmaceuticals and handicrafts.

These steps could consolidate India’s position as a jurisdiction that takes cross-border IP infringement seriously while maintaining trade efficiency.

IX. Conclusion

The Indian border enforcement system reflects a deliberate policy to integrate intellectual property protection into the customs regime. The IPR (Imported Goods) Enforcement Rules, 2007 constitute a robust mechanism capable of addressing the complex realities of modern counterfeiting. While administrative and logistical challenges persist, the overall framework demonstrates a well-calibrated balance between safeguarding rights holders, protecting consumers, and facilitating lawful trade.

As global supply chains expand and counterfeiting networks become more sophisticated, India’s continued investment in border-level IP enforcement will play a decisive role in strengthening market integrity and preserving the value of legitimate brands.

***