A HIGH COURT judge has dismissed an objection by two businessmen to a decision by the Comptroller of the Customs and Excise Division to give international sportswear manufacturer Nike time to pursue a lawsuit over counterfeit goods.
Businessmen Yunping Lin and Jaifeng Su, trading as New Choice Trading Company, filed the lawsuit after a shipment of theirs, containing shoes and clothing, was seized at the port in May 2021.
When they attempted to clear the shipment, they were told by customs officials the goods were suspected of being counterfeit.
A notice was also issued to Nike Innovate CV, as proprietor of the trademark Nike, which issued a notice of objection in July 2021. The businessmen were then served with a notice of seizure pursuant to the Trademark Act.
However, the judgement, delivered last week by Justice Ricky Rahim, who dismissed the businessmen’s objection, said the period for Nike to institute legal action against New Choice Trading Co expired before any lawsuit was filed.
Yunping Lin and Jaifeng Su demanded the return of the goods but the comptroller extended the time for Nike to pursue legal action to August 27, 2021. Nike has since commenced legal action for infringement of a trademark in relation to the shipment.
The two complained that the extension was unlawful and the goods should have been released because of Nike’s failure to initiate legal proceedings in time.
In his ruling, Rahim said that there was a statutory duty to notify an importer of the request for an extension so they can be given an opportunity to be heard on why the extension should not be granted.
However, he noted that the failure to commence infringement proceedings within the time set out in the notice did not debar the registered proprietor of the trademark from commencing legal action.
“ The effect of non-compliance with the timeline is only that the goods held by customs will be released to the importer. The right to bring an action is not thereby curtailed or affected.”
He said the businessmen did have an opportunity to set out why the extension would be unfair but failed to do so.
Rahim also held that when the comptroller extended the time, she was exercising a power provided in the statute.
“As the evidence has shown and the court has ruled, the extension of time was made within the time prescribed for doing, so that it is not the case as submitted by the claimants that the defendant failed to do so.”
The businessmen were represented by attorneys Dinesh Rambally, Kiel Taklalsingh and Stefan Ramkissoon while the comptroller was represented by Tinuke Gibbons-Glenn and Svetlana Dass while Nike was also represented in the proceedings as an interested party.
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