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Friday, 11 January 2013 12:00

Importing genuine products without permission illegal

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It is illegal to import genuine products without having the permission of the person or company detaining the trademarks. Sudheer Maudhoo and Zario Ltd must have now learnt their lesson.
Before the Commercial Division of the Supreme Court, counsels for Sudheer Maudhoo and Zario Ltd, the respective defendants, have argued that they do not need the approval of the owners of the trademarks to import respectively a consignment of textile products bearing the trademark of Polo/Lauren and spare parts of trademark Nissan. In their respective plaints, The Polo/Lauren Company, L.P and Nissan Jodosha Kabushi Kaisha have sued Sudheer Maudhoo and Zario Ltd in the presence of the co-respondent, The Mauritius Revenue Authority (MRA). Both cases have been consolidated in view of the fact that the same issue has been raised, which is whether it is permissible in the state of our law for the parallel importation, obviously, of genuine goods. Justice Paul Lam Shang Leen has delivered a single judgment with a copy which was filed in each Court record.

In the first case The Polo/Lauren Company, L.P claims to be the owner of numerous trademarks as well as copyright of the Polo Player Symbol worldwide. The defendant imported into Mauritius goods bearing one or more of the trademarks of the plaintiff. It was notified by the MRA by a letter dated 2 July 2008 that clearance of the goods by the defendant would be suspended pending the plaintiff’s decision to enter legal proceedings regarding those goods within the statutory delay. The MRA was informed of an application made by the plaintiff to the Judge in Chambers for an interim injunction against the defendant.     

The plaintiff claims that the goods, which were imported by the defendant, came from the USA and that they did not form part of products it had put on to the market in Mauritius. According to the plaintiff the defendant had infringed (a) its rights under the Patent Industrial Designs and Trademarks Act 2002 (PIDTA), in as much as he imported the detained goods into Mauritius without its agreement and/or consent. The said products had not been put on the market neither by the plaintiff nor with its consent; (b) The defendant further infringed the economic rights of he plaintiff under the Copyrights Act 1997, in as much as the importation of the said product bearing the copyright of the plaintiff has been effected without its consent; and (c) the defendant acted in contempt of the Court in as much as he has imported the aforesaid goods in breach of both the judgment and on his own express acknowledgment therein that such a conduct would amount to a contempt.
In the second case, Nissan Judosha Kabushi Kaisha claims to be the owner in Mauritius of the following registered trademarks namely Nissan (class 12), Nissan and device (class 12 with logo) and Nissan and Devices 12 & 37 with logo  amongst others and that it did also apply to the MRA under the Customs Act for border protection measure. The plaintiff has an authorised and accredited distributor in Mauritius with a distribution agreement duly deposited before the Industrial Property Office as provided by the law.

Its contention is that Zario Ltd caused to be imported into Mauritius on or abut 31 March 2009 side lamps, side bumpers,  grills, head lamps, radiators, bump supports, etc, bearing one or more of Nissan Marks. The plaintiff claims that by its acts and doings the defendant has infringed its rights under section 40 of the PIDTA and also under the Prevention Against Unfair Practices (Industrial Property Rights) Act. On its part Zario Ltd has entered a counterclaim against the plaintiff.

In both their prayers the two plaintiffs move for a perpetual order restraining the respective defendants from importing the respective goods; restraining and prohibiting the MRA from releasing the goods imported and directing the MRA to destroy the aforesaid respective goods. In his long and motivated judgment of some 30 pages Justice Lam Shang Leen first set aside the counter claim of Zario Ltd against Nissan Jidosha Kabushi Kaisha with costs against the defendant. Secondly he ruled in favour of both plaintiffs. “For all the reasons given, the application is granted and the interlocutory order made by the learned Judge in Chambers is made perpetual and the detained goods to be destroyed with costs against the defendants,” the Judge finally concluded.
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