With the growing awareness of the need to safeguard intellectual property, particularly in the face of counterfeit trademarks and pirated copyrighted items, border enforcement of intellectual property rights has become a major issue in recent years. As a result, the scheme of border measures has been discussed at various flora around the world, including the World Trade Organization, the World Customs Organization, and the World Intellectual Property Organization, as well as during the negotiation process of numerous multilateral and bilateral free trade agreements.

India, too, aimed to make it easier for right holders to enforce intellectual property rights at the border, thereby improving intellectual property border protection. The Intellectual Property Rights (Imported Goods) Rules, 2007 were notified by the Indian government in May 2007.The Rules, which are based on the World Customs Organization’s model law, aim to give Customs authorities the right to halt the clearance of products suspicious of infringing on intellectual property in India. They also give Customs officials the authority to arbitrate on the question of infringement and confiscate or dispose of items if the right holder is found to be the rightful owner. 

The Rules, on the other hand, are a big source of worry for importers. They fail to achieve a balance between right holders’ rights and the safeguards presented to importers, as well as right holders’ obligations. As a result, they have a high risk of being abused, and their execution has a checkered history. The dual–SIM patent controversy, which is currently being debated in various Indian courts, highlights the issues brought up by the execution of these rules and makes a case for their re-evaluation.

Despite the fact that most developing countries have substantive laws for the enforcement and protection of intellectual property rights, the enforcement level was quite low. After 1994, however, the situation altered with the TRIPS Agreement, which established unique rules dealing with border measure requirements under Section 4 of Part III, and in particular, Articles 51-60.The preamble to the TRIPS Agreement reflects a large part of the international consensus on proper intellectual property enforcement. These commitments, in contrast to the voluntary clauses of the Berne and Paris Conventions, significantly enhance the standards of IPR enforcement under international law.

• • • Under Article 51 of the TRIPS Agreement member nations are required to designate competent administrative or judicial authorities to direct customs officials to suspend the discharge of suspicious fraudulent trademark or pirated copyright items into free circulation. It’s worth noting that the term “counterfeit trademark products” is only defined as “visible infringing items.”
    • Article 53, which permits the competent authorities to require proper security or comparable assurance necessary enough to preserve the defendant’s interests, provides suitable procedures for preventing the exploitation of border measures.
    • Article 56 states that, in the event of any injury incurred as a result of wrongful detention or the release of goods pursuant to Article 55, the competent authorities have the authority to order the applicant to pay suitable compensation to the importer, consignee, or owner of goods. 
    • In view of Article 41(5), which recognizes that the TRIPS Agreement has no bearing on a member’s ability to enforce their law in practice, it’s worth noting that in India, the state can be sued directly for any wrongful detention by customs officers.
    • Article 57 of the TRIPS Agreement mandates that member nations grant the power of investigation to both the right-holder and the importers in order to validate their claims.

Where such actions are permissible, the TRIPS Agreement even specifies the procedures for ex-officio acts by customs authorities.