Your trademark is registered. So why are fakes still clearing Customs?

A brand owner asked me a fair question recently. His trademark has been registered for years. He has sued 2 importers already. Counterfeits still keep arriving in containers, and each new shipment means a new round of investigators, lawyers and court filings.

His registration gives him the right. It doesn't put anyone at the port on the lookout for him.

That's the job of Customs recordation. You record your right with Indian Customs once, and Customs then suspends suspect imports and tells you about them. Here's how the process works on the ICeR portal, what the bond choice really involves, and where the system stops: exports, patents and genuine grey-market stock.

Why trademark registration alone doesn't stop counterfeits at the border

Your registration under the Trade Marks Act, 1999 lets you sue an infringer. Suing needs a defendant, and by the time you find one, the goods have usually cleared, been distributed and sold.

Customs sees every Bill of Entry before clearance. That's the one point in the supply chain where counterfeit goods sit still, in one place, under government control.

Customs officers can't protect a right they don't know about. Recordation tells them what your right covers, what genuine goods look like and whom to call when a suspect consignment turns up.

The legal basis: Section 11, Notification 51/2010 and the 2007 Rules

Section 11 of the Customs Act, 1962 lets the Central Government prohibit the import or export of goods by notification. Clause (n) of Section 11(2) covers the protection of patents, trade marks and copyrights. Clause (u) covers the prevention of contravention of any law in force.

The section is an enabling power. The actual prohibition on imports sits in Notification No. 51/2010-Customs (N.T.) dated 30 June 2010, which prohibits the import of goods intended for sale or use in India that contravene specified provisions of the Trade Marks Act, Copyright Act, Designs Act, Patents Act and Geographical Indications Act.

That prohibition is subject to the procedure in the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007, notified by Notification No. 47/2007-Customs (N.T.) dated 8 May 2007. Rule 1 says in terms that the Rules apply to imported goods. CBIC's implementation instructions are in Circular No. 41/2007-Customs dated 29 October 2007, and the centralised bond system came later through Circular No. 10/2011-Customs dated 24 February 2011.

One point from CBIC's own guidance is worth keeping in mind. The prohibition covers the specific infringements listed in Notification 51/2010, not every possible infringement under the parent Acts. For trademarks, the hook is a false trade mark under Section 102 or a false trade description under the Act.

How recordation works on ICeR, step by step

The process runs on the Indian Customs IPR Recordation portal at ipr.icegate.gov.in.

1. File the notice online. Rule 3 lets a right holder give notice to Customs asking it to suspend clearance of suspected infringing goods. You fill in the online form, upload proof of ownership, the registration certificate, images of genuine goods and a power of attorney if an agent is filing. One form per right: if you hold 4 registrations for the same mark in 4 classes, you file 4 applications. The system issues a Unique Temporary Registration Number (UTRN).

2. Name the ports. Circular 41/2007 asks you to file with any one Commissioner of Customs at the ports where infringing goods are likely to arrive, and to list the ports you want covered. Once your notice is registered, Rule 4(3) requires that Commissioner to inform every Customs office covered by the notice. A port you leave out of the notice isn't covered.

3. Submit the physical file. Registration is completed only after you submit a hard copy of the system-generated application, with the documents, the fee by demand draft in favour of the chosen Commissioner, and your bonds, to the IPR cell of that Commissionerate.

4. Wait for the UPRN. The IPR cell verifies the file and converts your UTRN into a Unique Permanent Registration Number (UPRN). Rule 4(1) requires the Commissioner to tell you whether the notice is registered or rejected within 30 working days of receiving it. In our experience, the UPRN arrives about 45 to 50 days after filing, which is roughly what 30 working days plus document movement works out to.

Rule 4(2) sets a minimum validity of 1 year. Circular 41/2007 fixes registration at 5 years, after which you file again. Since the registration enforces your underlying right, it can't usefully outlast it: if your trademark registration lapses before the 5 years are up, so does the basis for Customs action.

Picking ports is a commercial decision

Most brand owners name too few ports. They list the port their own imports come through and forget that counterfeiters use whichever port is cheapest or least watched.

Look at where grey and counterfeit stock in your category has historically landed. Air cargo complexes matter for small, high-value goods. Inland container depots matter for goods routed through Nhava Sheva and moved inland under transhipment. Land customs stations matter if your category moves across the Nepal or Bangladesh border.

You can add ports later, but every shipment through an uncovered port in the meantime clears without a check against your notice.

The bond decision: general or centralised

Rule 5 makes registration conditional on 2 things from you: a bond protecting the importer and Customs against liabilities, demurrage, detention and destruction costs, and an indemnity bond protecting Customs. The indemnity bond is common to both routes. The difference lies in how you secure the first one.

The general bond route. You execute a general bond at registration without security. The cost comes later. Each time Customs interdicts a consignment, you must execute a consignment-specific bond at the port of interdiction for 110% of the value of the goods, with security of 25% of the bond value, within 3 days. Miss that window and Circular 41/2007 directs that the goods be released.

The centralised bond route. Circular 10/2011 introduced a single running bond, with security of 25% of the bond value deposited upfront at the Commissionerate where you're registered. The system generates a Bond Registration Number (BRN), and one BRN can cover several UPRNs. When goods are interdicted at any port, you write to the local IPR cell quoting the BRN and the debit, and the cell debits your account. If the balance can't cover the interdicted goods, you execute a supplementary bond with security within 3 days, at the Commissionerate where the centralised bond sits.

The trade-off is cash now against speed later. The general route ties up no money until something is caught, but each interdiction becomes a 3-day scramble to arrange a bank guarantee at a port you may never have dealt with. The centralised route locks up security in advance, and in return a debit letter is usually all an interdiction needs.

If you expect frequent interdictions across several ports, the centralised bond tends to pay for itself. If you're recording mainly as a deterrent, and expect a few seizures a year, the general bond keeps capital free. Either way, keeping the centralised account topped up is your responsibility under the circular, not Customs'.

What happens when Customs interdicts a shipment

Rule 7 lets the Deputy or Assistant Commissioner suspend clearance either on your registered notice or, on his own initiative, where he has prima facie evidence or reasonable grounds to believe the goods infringe. Customs must inform both you and the importer promptly, with reasons.

From there, the clock runs against you.

If you don't join the proceedings within 10 working days of suspension, Rule 7(3) requires the goods to be released, unless the Commissioner extends the period by another 10 days. Where Customs acted on its own, Rule 7(4) gives you 5 days to file your notice and meet the Rule 5 bond requirements. Perishable goods get 3 working days, extendable by 4.

Once you join, Rule 7(9) allows Customs to seize the goods under Section 110 of the Customs Act. If the Deputy or Assistant Commissioner finds infringement, the goods are confiscated under Section 111(d) as prohibited goods.

Rule 11 then governs disposal. With no legal proceedings pending, the goods are destroyed under official supervision or disposed of outside normal channels of commerce, after your no objection. If you don't respond to the proposed mode of disposal within 20 working days of being told, Customs can treat your silence as concurrence. Customs can also keep samples for you or the importer, if they're needed as evidence in litigation.

The practical lesson is that recordation only pays off if someone on your side reads Customs emails the same day. A missed notice turns into released goods within 2 weeks.

What recordation doesn't cover

Patents have been outside the Rules since Notification No. 56/2018-Customs (N.T.) dated 22 June 2018 removed them. A patent owner who wants border action needs a court order directed at Customs.

Goods of a non-commercial nature in personal baggage, or sent in small consignments for the importer's personal use, are excluded from the Rules. A traveller carrying 2 counterfeit handbags for personal use falls outside the scheme. A courier parcel of 200 does not.

Exports: no portal, no UPRN, a weaker route

ICeR covers imports only. There's no export recordation, no export UPRN and no equivalent of the Rule 7 timelines for outbound cargo.

Section 11(2)(n) would allow the government to prohibit infringing exports, but the only export notification in this area is narrow. Notification No. 50/2007-Customs (N.T.) dated 8 May 2007 prohibits the export of goods that lack a country-of-origin indication required under Section 139 of the Trade Marks Act, or that aren't stamped as Section 81 requires. It doesn't prohibit the export of counterfeit goods generally.

Section 113(d) of the Customs Act makes goods liable to confiscation when they're attempted to be exported contrary to any prohibition under the Customs Act or any other law in force. Exporting goods under an infringing mark is "use" under Section 29(6)(c) of the Trade Marks Act. Whether infringement amounts to a "prohibition" for Section 113(d) purposes is open to argument, and an exporter can be expected to contest it.

In practice, you write to the jurisdictional Commissioner's IPR cell at the port of export, attach proof of your right and the shipment details, and ask them to examine the consignment. Treat that as an informed tip-off. Officers may act on it, but nothing obliges them to. If the shipment matters, a civil court injunction directing Customs to detain the specific consignment is the stronger tool, and High Courts have issued such directions in counterfeiting suits.

Parallel imports: the answer changes right by right

A parallel import is a genuine product, lawfully sold abroad, brought into India by someone other than the right holder and without the right holder's permission. Circular No. 13/2012-Customs dated 8 May 2012 told Customs officers to decide these cases on the parent Act for each right.

Trademarks. Section 30(3)(b) of the Trade Marks Act says that once goods bearing your mark have been lawfully acquired after being put on the market by you or with your consent, their further sale isn't infringement merely for that reason. Section 30(4) carves out cases where you have legitimate reasons to object, especially where the goods have been changed or impaired after being put on the market. The Delhi High Court's Division Bench in Kapil Wadhwa and Ors. Versus Samsung Electronics Co. Ltd. and Ors. - 2012 (10) TMI 1246 - DELHI HIGH COURT read this as international exhaustion, and Samsung took the matter to the Supreme Court. Unless your genuine goods have been materially altered, recordation usually won't stop grey-market stock bearing your mark.

Designs. Section 22(1)(b) of the Designs Act, 2000 makes it piracy to import, for sale, an article bearing a registered design without the proprietor's consent. Circular 13/2012 confirms that parallel imports aren't allowed under the Designs Act. For a registered design, recordation can stop genuine goods brought in without your consent.

Copyright. Circular 13/2012 left this open, recording that a clarification was awaited from the department concerned. In practice, Customs looks at the facts of each case, and the outcome depends on the work and the import.

Geographical indications. The circular records that the GI Act doesn't cover parallel imports.

Customs enforces rights. It doesn't decide who owns them

Recordation sits alongside your registration under the parent Act. It doesn't replace it, and it doesn't make Customs an IP tribunal.

If the importer disputes your ownership, or holds a competing registration, Customs isn't the forum to resolve it. Officers will look at whether the goods infringe a right that's clearly yours. A real dispute over title goes to the Registrar or a civil court, and while it's pending, expect the goods to be released on the timelines above unless you produce a court order.

So get the underlying position clean first: registrations current, assignments recorded, licensees documented. Then record.

FAQ

How long does it take to get a UPRN from Customs?

Rule 4(1) requires the Commissioner to register or reject your notice within 30 working days of receiving it. In practice, the UPRN tends to come through about 45 to 50 days after filing, once the hard copy and bonds have reached the IPR cell.

Does Customs recordation cover every port in India?

It covers the ports you name in your notice. Under Rule 4(3), the registering Commissioner informs every Customs office covered by the notice. A port you didn't name isn't covered, so list every port where you expect counterfeits to arrive.

What's the difference between a general bond and a centralised bond?

A general bond is executed at registration without security, but each interdiction then needs a consignment-specific bond of 110% of the goods' value with 25% security within 3 days. A centralised bond under Circular 10/2011 is a running bond with 25% security deposited upfront, which Customs debits at any port, with a supplementary bond needed only if the balance runs short.

Can I record a patent with Customs?

No. Notification No. 56/2018-Customs (N.T.) removed patents from the IPR (Imported Goods) Enforcement Rules, 2007 with effect from 22 June 2018. Border action for a patent needs a court order.

Will recordation stop genuine goods imported by unauthorised dealers?

For trademarks, usually not. Section 30(3)(b) of the Trade Marks Act protects the resale of lawfully acquired genuine goods unless they've been materially altered or impaired. For registered designs, yes, since Section 22(1)(b) of the Designs Act doesn't permit unauthorised imports.

Brand owners, which bond route did you pick?

General or centralised? And what tipped the choice: the cash locked up in security, or the 3-day scramble at a port you'd never dealt with?