Newsletter
CUSTOMS OFFICERS' DUTY OF CONFIDENTIALITY
Article 12 of the Customs Act last amended on 5 May 2004 requires Customs personnel to keep confidential all information relating to customs processing provided by duty payers or exporters of goods. Customs officers who violate this provision will be subject to disciplinary action, and those whose actions violate the Criminal Code will be subject to criminal investigation. But the above prohibition does not apply if such information is communicated to any of the fol-lowing persons or entities: (1) the duty payer or exporter, or their heirs or successors; (2) the au-thorized agent or defense attorney of the duty payer or exporter; (3) the Customs or tax-collection authorities; (4) control agencies (5) agencies handling administrative appeals or litigation concerning customs operational mat-ters; (6) agencies charged by law with the inves-tigation of cases concerning customs operational matters; (7) other agencies or personnel em-powered by law to require the Customs to pro-vide customs processing information; and (8) agencies or personnel approved by the Ministry of Finance (MOF).
Since Article 12 does not include intellectual property rights holders among the persons to whom Customs officials may reveal customs processing information, it is the opinion of the Directorate-General of Customs that in cases where the Customs discovers articles that infringe trademarks or copyrights, to prevent Customs officers from facing administrative penalties or even criminal prosecution, the Customs may not provide any information about infringers to rights holders, such as the destina-tion of imported or exported goods, the quantity of infringing items, or the name or address of the consignor, importer, or consignee of such goods.
On this basis, the Regulations Governing Customs Seizure of Trademark-Infringing Goods, jointly announced by the Ministry of Economic Affairs and the MOF on 15 September 2004, deleted the provision previously contained in the Operational Guidelines for Customs Cooperation in the Enforcement of Trademark and Copyright Protection Measures, that after it is confirmed by a final court judgment that the goods had infringed a trademark or copyright, the Customs could provide to the rights holder information on the consignor, importer, or consignee of the infringing goods and the quantity of infringing articles. Thus rights holders are now unable to obtain information on alleged infringers, and have no opportunity to pursue civil or criminal proceedings against them. This has an immense impact on rights holders’ interests.
It is also unclear whether, under Article 12 of the Customs Act, the Customs is under an obligation to provide such information to public prosecutors and criminal investigation agencies. Lee and Li has suggested to the MOF that it should use its powers under Subparagraph 8, Paragraph1, Ar-ticle 12 of the Act to designate rights holders as “agencies or personnel approved by the Ministry of Finance” to whom such information can be disclosed. However, the MOF stated that the issue should be addressed by the Intellectual Property Office by amending the Trademark Act and the Copyright Act. It appears that until such time that these laws are amended, the Customs will not be able to provide information on counterfeiting cases to rights holders.