Counterfeit goods – liability under the spotlight

A part of the Counterfeit Goods Act (CGA) hangs like a sword of Damocles over the freight industry. The problem for the industry, according to Andrew Robinson, chairman of the Maritime Law Association (MLA), is that the present definitions of importer and exporter in the act “are draconian in their scope”. In relation to counterfeit goods, those persons who ordinarily conduct business as a carrier, shipper, ship’s agent, shipping agent, clearing agent, forwarding agent or similar businesses, are all included under the importer and exporter headings. “The definitions fix a vicarious liability upon persons who have no interest in the goods in question and who, in general terms, ordinarily have no way of knowing whether the goods in question imported into or exported from SA are counterfeit as defined in the act,” Robinson added, quoting the MLA’s motivation for the amendment. The amendment to the act seeks to exclude these parties, and freight agents and carriers are waiting in a sweat until the MLA submits its proposal to the authorities, and the appropriate legal change to the act can be made. This because there have already been a number of cases held in SA which included innocent carrier and C&F agents in the charges. “And the CGA has not been amended since 2001,” said Robinson. “No wonder the agents are sweating.” The present definitions in SA are also inconsistent with the position elsewhere in the world. “Again,” Robinson told FTW, “the MLA motivation pointed out that, in the UK for example, there is no equivalent legislation to the SA Counterfeit Goods Act. “There is no definition of ‘importer’ or ‘importing’ in the Patents Act, 1977; Copyright, Designs and Patterns Act, 1988; or the Trade Marks Act, 1994. “Although the act of importing goods infringes relevant intellectual property rights in the UK and is listed as an infringing act, it is in the intention of the legislature that the word importer be given its normal meaning – implying that the importer holds title to the goods in question. “In decided cases, the mere carrier of goods was held not to have committed an infringing act by bringing the goods into the UK in that capacity.” The draft amendment has been prepared, and is on the agenda for the next MLA Exco meeting due to take place today (March 27).