Lao customs expands border measures to protect IP rights
Sukontip Jitmongkolthong and Saithong Rattana of Tilleke & Gibbins describe how Laos has improved its framework to enforce IP rights through border measures
Every country has its own customs measures in place to monitor goods crossing its borders. These measures are implemented by customs departments and other government agencies that facilitate international trade by checking shipments and collecting taxes on goods that enter and leave the country.
Laos is one of the many countries that have sought to create a favourable environment for operators to export, transit, move, and store goods. In addition to tax collection duties, the Lao customs department also has measures to safeguard IP rights and prevent unfair competition, including protections against the infringement of trademarks and copyright – measures that have been in place since 2011.
In 2022, Laos further improved its framework for enforcing IP rights through border measures against infringing goods. In February 2022, the government published new customs instructions that added industrial designs to the list of safeguarded IP rights for the Lao customs department. This means that an IP owner can now request the Lao customs department to take action on products infringing a protected industrial design under the customs border measures.
The Lao customs department enables IP rights holders to protect their IP by allowing them to request the suspension of clearance for any goods imported, exported, or transiting in Laos on the grounds that a trademark, copyright, or industrial design is being or is likely to be infringed.
To be eligible for this protection, IP rights holders must submit a request for a declaration of ownership to the customs department. Once approved, the application is forwarded to the provincial and capital customs offices to serve as a reference for officers inspecting goods crossing the Lao border.
The declaration of ownership should be accompanied by the relevant written form for inspection and supervision of goods that are the subject of IP rights. Various other information and documentary evidence is also necessary before authorities can take action on the request.
Applications are submitted to the customs department, which is in the Ministry of Finance. After receiving the application, the department will inform the applicant as to whether the application is approved within 10 working days.
Once the application is approved, it will be forwarded to the provincial and capital customs offices for risk management and for use as a reference when officers inspect goods at the borders.
Customs protection is effective from the date of approval. The protection offered under the application is valid for two years and can be extended upon request.
Applicants can amend or add information to an application form throughout the protection of their IP rights through the customs department.
Getting help in specific cases
An applicant may also seek to enforce IP protection measures against specific offenders by submitting a written request to the customs department, along with evidence of the suspected infringement and a cash security deposit or guarantee by a bank or other financial institution for LAK 10 million ($580) to compensate for any potential loss in the event there was no IP infringement.
After the department receives the application and necessary supporting materials, customs officers will conduct an inspection and temporarily seize the goods as requested by the IP rights holder.
Next, the customs officer will compare the information in the written customs declaration (e.g., names of the goods, brands, origin, value, packing, quality, transportation route, etc.) with the information in the IP rights protection database. If infringement is suspected, the customs officers have the right to detain the goods for 10 working days. The temporary suspension period may be extended if the applicant has provided evidence that dispute settlement or legal proceedings have been initiated in respect of the matter.
The customs officers may also choose to seize the goods and prosecute the infringer in accordance with the law.
When customs officers discover prohibited goods, the officers have the power to restrain or seize the goods, including any means of transport used in the commission of the customs offence. They also have the power to detain the persons involved, produce a case record, and hand over the suspect, together with the exhibits, to the Office of People’s Prosecutor for prosecution.
This broad authority is why brand owners active in Laos can benefit greatly by collaborating with the customs department in fighting against infringement of their IP rights.