2 GOVERNMENT GAZE’ITE, 1 OCTOBER 1997 X’o. 18324 Act NO. 37, 1997 COUNTERFEIT GOODS ACT, 1997 ACT To introduce measures aimed against the trade in counterfeit goods so as to further protect owners of trade marks, copyright and certain marks under the Merchandue Marks Act 1941, against the unlawful application, to goods, of the subject matter of their respective intellectual property rights and against the release of goods of that nature (called “counterfeit goods”) into the channels of commerce; for that purposeto prohibit certain acts in relation to counterfeit goods as well as the possession of counterfeit goods in certain circumstances; to create offences in that regard and prescribe penalties in relation thereto; to confer, in certain circumstances, upon inspectors and certain members of the South African Police Service the power, upon having obtained a warran~ or upon being otherwise authorised by or in terms of this ACG to enter premises and there to search for, and, if found, to seize and removq counterfeit goods or suspected counterfeit goods for detention pending the finalisation of civil or criminal proceedings to be instituted or any other disposal thereof authorised by or in terms of the Act; to provide that the Commissioner for Customs and Excise and his or her statf, upon having granted an application to that end by the owner of an intellectual property righ~ will have the power to seize and detain counterfeit goods or suspected counterfeit goods imported into or entering the Republic during a particular period and calculated to infringe that intellectual property nghc and to provide for incidental matters. (English text signed by the President.) (Assented to 19 September 1997.) B E lT ENACTED by the Parliament of the Republic of South Africa, as follows:- I)efinitions 1. (1) In this Act, unless inconsistent with the context— (i) “act of dealing in counterfeit goods” means any actor conduct referred to in 5 section 2(1 ); (iii) (ii) “apply to”, with reference to any goods, means use upon or in physical or other relation to any goods, and, unless clearly inappropriate, includes to embody or incorporate in any goods; (i) (iii) “complainant” means a person who, in terms of section 3(l), is entitled to lay 10 a complaint contemplated in that section and who has laid such a complaint; (xi) (iv) “counterfeiting’ ‘— (a) means, without the authority of the owner of any intellectual property right subsisting in the Republic in respect of protected goods, the 15 manufacturing, producing or making, whether in the Republic or elsewhere, of any goods whereby those protected goods are imitated in such manner and to such a degree that those other goods are substantially identical copies of the protected goods; (b) means, without the authority of the owner of any intellectual property 20 right subsisting in the Republic in respect of protected goods, manufacturing, producing or making, or applying to goods, whether in the Republic or elsewhere, the subject matter of that intellectual property right, or a colorable imitation hereof so that the other goods are calculated to be confused with or to be taken as being the protected goods 25 of the said owner or ZIIIy goods manufactured, produced or made under his or her licence; or