DECEMBER 22
DECREE 4540/2006
OF THE
THE MINISTRY OF PUBLIC FINANCE
ADOPTING CUSTOMS CONTROLS
TO PROTECT INTELLECTUAL PROPERTY

The President of the Republic of Colombia, in exercise of his powers under the Constitution, particularly those of section 189.25, and subject to Article 3 of Law 6/1971; Article 2 of Law 7/1991; and in furtherance of Law 170/94, and 

WHEREAS

In Law 170/94, Colombia adhered to the agreement establishing the World Trade Organisation, amongst whose Annexes there is an agreement on aspects of trade-related Intellectual Property rights (TRIPS), which obliges all Member Countries to adopt border measures designed to protect Intellectual Property;

In Law 46/79 Colombia are also adhered to the world Intellectual Property Organization agreement (WIPO);

In Law 33/87, Colombia and adhered to the Berne convention on the protection of literary and artistic works;

The Andean community has adopted legal provisions on Intellectual Property, such as Decision 351, establishing the regime on Copyright and Related Rights, and Decision 486, adopting the regime on the industrial property;

In Law 172/94, Colombia ratified the free-trade agreement with Mexico and Venezuela (G-3), which contain provisions on matters of border measures;

It is necessary to provide the Customs Administration with a legal instrument to allow it to adopt controls related to Intellectual Property, and hence, to comply with the international community, particularly TRIPS.

IT IS DECREED

CHAPTER I
GENERAL PROVISIONS

Article 1. Definitions. The following expressions will have the meanings which are given below:

-Competent Authority. The judicial authority with competency for Intellectual Property, which will decide on matters of substance which cause the suspension of customs operations

-Copyright. The form of legal protection by which the creator of a literary or artistic work is granted a set of prerogatives of a moral and patrimonial nature, which allow him to authorize or prohibit their use in any manner, or through any means known now or in the future

-Related Rights. A set of rights recognized for artists, performers, presenters, producers of phonograms, and broadcasting organizations, in relation to their performances or executions, phonograms or broadcasts, respectively.

-Trademark. Any sign able to distinguish goods or services of one enterprise from that of other enterprises, provided that it is able to be represented graphically.

-Pirate Goods. Any copy made without the consent of the Holder of Copyright or Related Rights, or of a person duly authorized by him in the country of production, and made directly or indirectly on the basis of a work or production which is protected, and the production of such copies would have been a breach of Copyright, or of an Related Rights.

-False Trademark goods. Any goods, including their packaging, which carry the factory mark or Trademark identical to the Trademark validly registered for such goods, without authorization, or a mark which cannot be distinguished in essential characteristics from that Trademark, or is it so similar as to be confusing, and which thus impairs the rights of the Holder of the Trademark in question.

-Holder of Copyright or Related Rights. This is May individual or legal entity, who is the original or derived Holder, and is empowered to authorize or prohibit any act of exploitation or used by any means of a literary or artistic work, of an artistic performance, a broadcasts or a phonogram.

-Trademark Holder. This is the owner of a Trademark registration, and eventually, his successors and assigns and exclusive licensees.

Article 2. Scope. For the purposes of this Decree, the intervention of the Customs Authority will take place in relation to allegedly Pirate Goods, or goods with a False Trademark, involved in an operational importation, exportation or transit.

Article 3. Powers of the tax and Customs Authority DIAN. In accordance with the procedures provided for here, the Customs Authority may provisionally suspend the importation, exportation or transit of allegedly Pirate Goods or goods with a False Trademark, while the Competent Authority decides on the existence or otherwise of the circumstances.

The foregoing, without prejudice to the seizure of goods, where appropriate, in which case the customs procedure for the definition of legal standing will take place, and not the procedure for provisional suspension of operations referred to in this Decree.

Where there are serious indications that the goods are implicated in some crime, other than or in addition to those of contraband or aiding and abetting of contraband, will be placed at the disposal of the prosecution service, including by ex officio decision, and with preference over any other procedure. 

CHAPTER II
PROCEDURE

Article 4. Request for suspension of customs operations. The Holder of Intellectual Property rights involving goods subject to an importation, exportation or transit may request the Customs Authority to affect provisional suspension of that operation while the competent judicial authorities decide on the denunciation or claim which the Holder shall present in regard to the allegation that they are Pirate Goods or goods with a False Trademark. If this condition is established, the goods will not be released, and/or the authorization to ship the goods or to place them in customs transit, will not be given, as the case may be.

Suspension of customs operations may also be ordered directly by the Competent Authorities, as a precautionary measure and until the substance of the matter is decided.

The Foreign Trade Services Division, or its delegates, will be made aware of the suspension of service by the Customs Authority of the place where the importation, export all transit is being processed.

Article 5. Content of the application. The application must be made personally by the owner of the right; the federation or association empowered to represent him; the legal representative or attorney, duly instituted. The application will provide the following information:

1. Full name, identification and address of the residence of the Holder of Intellectual Property rights

2. Name and address of the person who is authorized or who has a license to enjoy Intellectual Property rights in this in the country.

3. Identification of Intellectual Property rights and of the facts alleged to constitute violation of the same. If possible, the those allegedly responsible shall be identified. In the case of a Trademark, the number of the registration certificate must be quoted.

4. Indication of the place where the genuine goods are edited, recorded, printed, or in general produced; the identity of the manufacturer, his address, and other means of communication known.

5. Detailed description of the genuine goods.

6. If possible, description of the allegedly Pirate Goods, or goods under False Trademark, object of the application, with an indication of the application.

7. If considered necessary, and if not previously done, a petition for an authorization to examine the goods.

Attachments. The following documents will be attached to the application:

1. Copy of the registration, title or document accrediting him as the owner of the right, in the event that this is legally necessary in order to constitute the right.

2. Power of attorney or document creating authority to act, if appropriate.

3. If a process for violation of Intellectual Property rights has already been entered before the Competent Authorities, a copy of the denunciation or claims in that case will also be attached.

4. Evidence showing the existence of an indication of the violation of a right.

Article 6. Effects of the application. The presentation of the application will have the following consequences

1. Suspension of the term of storage, and therefore of the release or authorization of shipment or of the transit operation, as the case may be.

2. Prevention of direct delivery of the goods, and in this event, the order will be given to transfer goods to a place of storage. This same measure will be adopted in relation to goods in transit.

Article 7. Processing of the application. The Customs Authority will admit or reject the application in an order, within three days of presentation. The order to admit will state:

1. Suspension of the customs operations.
2. The establishment of a surety, from a bank or insurance company, within five days following the effective date of the order, equivalent to 20% of the FOB value of the goods, in order to guarantee damages which might be caused to the importer or exporter, without prejudice to other kinds of responsibility. There will be no need to establish the guarantee if the petitioner can prove that he has already done so on the occasion of a claim or denunciation which he has presented to the Competent Authority. All guarantees will contain an express waiver of the benefit of excussion.
3. The communication to the place of storage regarding the suspension of the customs operations; and
4. Authorization to the petitioner to examine the goods within five days following. This procedure will be conducted in the presence of the Customs Authority, and the costs will be for account of the petitioner.

The order deciding on the application will be served personally, or by mail, to the petitioner and to the importer, exporter or declarer, and the only recourse against it is a request for revocation.

In the case of highly perishable goods, and without prejudice to claims before the Competent Authorities, there will be no procedure for suspension of customs operations if the user so requests and establishes a bank or insurance company guarantee equivalent to 100% of the FOB value of the goods, in order to guarantee the damages which might be caused due to the alleged violation of Intellectual Property rights. In this case, a sample of the goods may be taken.

Article 8. Intervention of the Competent Authority. Within 10 days following service of notice of the order admitting the application, the petitioner must present the Customs Authority with the following:

1. The guarantee or surety referred to in the preceding article; and
2. A copy of the claim or denunciation promoting the related procedures with the competent judicial authorities, if he has not already done so.

Failure to deliver these documents within the time provided will be taken as abandonment of the application, and the Customs operation will therefore continue its normal course.

Where the decision of the Competent Authority declares that the goods are Pirate Goods or carry a False Trademark, the Customs Authority it will deny release, authorization of shipment or transit of the goods, and the goods will remain at the disposal of the Competent Authority.

It is decided that there is no piracy or False Trademark, regular Customs terms and operations will be restored and continue normally. In this case, the Customs will issue an order to call on the guarantee in favor of the party affected, to whom it will deliver the original of the same if the Competent Authority has not decided on this matter. There is no course against this decision.

Until the Competent Authority decides on the substance of the matter, the goods will remain and be retained in the place of storage or free zone, at the disposal of the customs. Costs will be for account of the customs user.

CHAPTER III
COMMON PROVISIONS

Article 9. The right to information and inspection. Before presenting the application for suspension of customs operation, the goods may be examined by the Holder of the Intellectual Property rights, who will present an application for this to the Customs Authority, giving a general description of the goods and the facts on which he bases his claim of violation of Intellectual Property rights. He will attach the following to this application:

1. A copy of the registration, title or document accrediting him as the Holder of the right, in the events of this were legally necessary in order to establish the right.

2. Copy of the power of attorney or document accrediting his capacity to act, if necessary.

The application will be decided upon within the next three days, in an order against which there is no recalls, and will be communicated to the importer, exporter or declarer by any means. Any examination of the goods will be effected in the presence of a customs officer. The petitioner may be assisted by a maximum of two experts contracted by him for this purpose.

The examination of the goods will be made without prejudice to the protection of confidential information, and may be attended by the customs user, who may not interfere with the proceedings nor obstruct them.

Article 10. Excluded operations. The following goods are excluded from the provisions of this Decree:

1. Those subject to the regime of travelers
2. Those which are not of a commercial nature; and
3. Urgent deliveries.

Article 11. Directory of Holders. The Customs and Tax Authority DIAN may prepare a directory of Holders of Intellectual Property rights referred to in this Decree, with their representatives or attorneys, which is to be able to be renewed regularly, in order to facilitate agile communication by the Customs Authority.

Article 12. Validity. This Decree will be valid from the month following that of the date of its publication, and repeals any other provisions contrary to it.

Be this published and obeyed
Given in Bogota, on December 22,2006
Alvaro Uribe-Velez

Minister of Public Finance
Alberto Carrasquilla-Barrera

Minister of Trade, Industry and Tourism.
Jorge Humberto Botero-Angulo