Customs and Intellectual Property — the Foundations
The state border is the most sensitive point for counterfeit goods and goods created in breach of a right in a mark: import, export and warehousing are precisely the acts prohibited by the Georgian Law on Trademarks. These norms do not provide a separate institute of "customs-record filing" or an application for customs surveillance — protection at the border operates through the general regime of the exclusive right in the mark and claims directed to court. The holder's exclusive right to a trademark protected by registration arises from the day the mark is registered, and it is this right that determines who may lawfully dispose of marked goods crossing the border.
When Border Crossing Becomes an Infringement
Under Article 6 of the Law, the holder of the exclusive right may prohibit a third person from using, without consent, in civil circulation a sign that stands in the following relation to the protected mark: an identical sign with identical goods; an identical sign with goods so similar that a likelihood of confusion, including through association, arises; a similar sign with identical or similar goods such that confusion again arises; or an identical or similar sign with a reputation in Georgia, where its use unjustifiably gives the third person advantageous conditions or damages the reputation or distinctiveness of the mark. A consignment crossing the border bearing such a sign is assessed within exactly this framework as prohibited use. Notably, the likelihood of confusion does not require conscious deception — the assessment is objective, of whether in ordinary conditions of perception a consumer may confuse the signs; and reputational protection extends to different goods as well, where advantageous conditions are created unjustifiably.
Import, Export and Warehousing — the Prohibited Acts
The Law names directly the acts connected with customs control: it is forbidden to offer, put into circulation or store for that purpose in a warehouse, import or export goods bearing the mark. Without the holder's consent a third person may not affix an identical or similar sign on a label, tag or any other medium, nor offer for sale, put into circulation, sell, prepare for sale, store, import or export packaging, labels and tags bearing such a sign. The prohibition does not extend to acts carried out with goods marked by the right holder itself. Also prohibited are the offering or rendering of services using the mark, the use of the mark in advertising or on business papers, and its use as a firm name or part of one. This means that not only the importer of counterfeit goods but also its packer and warehouse operator fall under the prohibition.