How effective are Indian border measures?


Mahua Roy Chowdhury

How effective are Indian border measures?

Changes to India's customers law have helped, but brands need to get more involved in tackling counterfeiting, says Mahua Roy Chowdhury.

In recent years India has amended its customs laws to create easier and more effective enforcement of intellectual property.

The earlier law did not authorise customs to enforce IP and required the rights holder to approach the court for an order to make customs confiscate infringing goods. The law was silent on questions such as who would bear the costs while the order is being sought and who would be held liable if the confiscated goods were found to be genuine. No party was ready to take the risk and liability. This paved the way for the amendment, which I helped customs to draft.

Under the current law, the Indian government enforces IP only during import and not export, as Article 51 of TRIPS provides an option to signatories in relation to enforcing IP during export, whereas Article 36 makes enforcement of IP during import mandatory. India opted out of the obligation to enforce IP during exports. This gap is being exploited by counterfeiters.

India, customs law