How to lodge a complaint

Complaints in terms of the Counterfeit Goods Act (No 37 of 1997)

The Companies and Intellectual Property Commission (CIPC) is not only the custodians of the Counterfeit Goods Act (CGA) but also jointly responsible, together with the South African Revenue Services (SARS) {through Section 15 Applications} and the South African Police Service (SAPS), for enforcement efforts.

The procedure for lodging a complaint with the Companies and Intellectual Property Commission (CIPC) in terms of the Counterfeit Goods Act is as follows:

Important requirements for submitting a complaint

  • Any person with an interest in protected goods (the owner or licensee of an Intellectual Property Rights or the importer, exporter or distributor thereof, or a duly authorised agent, representative or attorney) may lodge a complaint;
  • A complaint must be lodged in the form of an affidavit under oath;
  • All annexures attached to the affidavit must also be sworn to;
  • The complainant is expected to provide to the CIPC in writing indemnity for the requested actions to be taken by the inspector based on the complainant’s affidavit;
  • The complainant must provide as part of the affidavit evidence that the goods are protected goods, such as certified copy of the registered trade mark or design.

Evidence required

Information is required relating to the alleged offence and the suspect’s failure to take all reasonable steps to avoid the offence. Evidence could include:

  • Proof that the suspect had knowledge or had reason to suspect their actions were illegal;
  • The goods in his/her possession or under his/her control are counterfeit goods; and
  • are in his/her possession for the purpose of dealing in those goods. The suspect may have received a warning from the IP owner or his/her authorised representative or agent prior to the complaint being lodged that the goods in his/her possession are counterfeit goods, or counterfeit goods have been found in the suspect’s possession;
  • It is expected that the complainant will provide all the background information available on the suspect in support of the suspicion that an offence is being committed or likely to be committed.

Information required

Information and particulars that the alleged goods are counterfeit have to be submitted to enable the inspector to identify the essential physical and any other distinctive features, elements, and characteristics of the products. This could be done by furnishing the inspector with a specimen of the genuine good and the counterfeit good, or giving a detailed explanation and making use of photographs.

The complainant must show that an act of dealing in counterfeit goods has been, or is being committed, or is likely to be committed based on a reasonable suspicion.

The complainant must confirm they have fully disclosed all material facts known to them so that a judge or magistrate, before whom a request for a search warrant will be placed, may make an informed decision.

Material facts should also include any correspondence that took place between complainant and alleged suspect and any undertakings given by any of the relevant parties on the alleged infringement, and any offence in terms of the Act or “voluntary surrenders” that might have occurred between the complainant and the suspect.

The complainant must give details relating to any previous raids by any law enforcement agency, and the circumstances around and the outcome of that raid.

The complainant must also give an indication of their intended course of action, i.e. civil and/or criminal litigation.

Although it need not be included in the complaint affidavit, the complainant is expected to inform the inspector, in a covering letter, whether or not the complaint lodged has been lodged with any other law enforcement agency, and if so, the reason why the other enforcement agency has not accepted or acted on the complaint.

The covering letter should also contain information on the counterfeit goods depot that will be used to store the seized goods and the name of the person that will be listed on the warrant to assist as a knowledgeable person.

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