Regulations of the People's Republic of China Regarding Customs Protection of Intellectual Property Rights

 

(Issued by the State Council of the People’s Republic of China (in Decree No. 395) on 2 December 2003; amended according to the State Council’s Decision on the Amendment to the Regulations of the People's Republic of China Regarding Customs Protection of Intellectual Property Rights issued on 24 March 2010; and entering into force as of 1 April 2010)

Chapter I General Provisions

Article 1 With a view to effecting the protection of intellectual property rights by the customs authorities, promoting the economic, trade, scientific, technical and cultural exchanges with foreign countries and safeguarding the public interests, these Regulations have been formulated under the Customs Law of the People's Republic of China.

Article 2 For the purpose of these Regulations, the customs protection of the intellectual property rights shall refer to the protection by the customs authorities of the exclusive right to use trademark, the copyright and the copyright-related rights and the patent right (hereinafter all referred to as the intellectual property rights) that are related to import and export goods and protected under the laws and administrative regulations of the People's Republic of China.

Article 3 The People's Republic of China prohibits from import or export goods which infringe the intellectual property rights.

The customs authorities effect the protection of the intellectual property rights pursuant to the relevant laws and provisions of these Regulations, and exercise the related power as provided for in the Customs Law of the People's Republic of China.

Article 4 Owners of intellectual property rights who request the Customs to protect their intellectual property rights shall file application with the Customs for taking the protection measures.

Article 5 The consignees of import goods or consignors of export goods and their agents shall, in accordance with the State regulations, declare to the customs authorities the state of the intellectual property rights related to the import or export goods and submit the relevant certifying documents.

Article 6 In protecting the intellectual property rights, the Customs shall keep confidential trade secrets of the interested parties.

Chapter II Recordal of Intellectual Property Rights

Article 7 Owners of the intellectual property rights may apply to the General Administration of Customs for the recordal of their intellectual property rights according to the provisions of these Regulations; those applying for the recordal shall file an application in writing. The application shall cover the following:

(1) the name or personal name and the place of registration or nationality of the owner of the intellectual property right;

(2) the title, contents and relevant information of the intellectual property right;

(3) the state of license and exploitation of the intellectual property right;

(4) the designation, origin, customshouse of entry or exit, importer or exporter, principal features and price of the goods in respect of which the intellectual property right owner has lawfully exercised the intellectual property right; and

(5) the manufacturer, importer or exporter, customshouse of entry or exit, principal features and price of the known infringing goods;

Where there are certifying documents relating to the contents of the application provided for in the proceeding Article, the intellectual property right owner shall attach them with the application.

Article 8 The General Administration of Customs shall, within thirty working days from the date of receipt of all the application documents, decide and inform in writing the applicant whether his application for the recordal of his intellectual property right is approved or not. Where the General Administration of Customs does not grant the recordal, it shall explain the reason.

Under any one of the following circumstances, the General Administration of Customs shall not grant its recordal:

(1) where the application documents are incomplete or invalid;

(2) where the applicant is not an intellectual property right owner; or

(3) where the intellectual property right is no longer protected under the law and the administrative regulations.

Article 9 Where it finds that the intellectual property right owner applies for recordal of the intellectual property right without providing the facts or truthful documents, the General Administration of Customs may cancel the recordal.

Article 10 The recordal for the customs protection of an intellectual property right shall take effect from the date of approval of the recordal by the General Administration of Customs. The term of the recordal shall be ten years.

Where the intellectual property right is valid, the owner of the intellectual property right may, within six months before the expiration of the term of the recordal for the customs protection of the intellectual property right, apply to the General Administration of Customs for renewal of the recordal. The term of each renewal of the recordal shall be ten years.

Where no renewal is applied for on the expiration of the recordal for the customs protection of an intellectual property right or where the intellectual property right is no longer protected under the law and administrative regulations, the recordal for the customs protection of the intellectual property right shall become invalid immediately.

Article 11 Where any change takes place in the state of recordal of an intellectual property right, the owner of the intellectual property right shall, within thirty working days from the date of the change, go through the formalities in respect of the change or for the cancellation of the recordal at the General Administration of Customs.

Where the owner of the intellectual property right fails to go through the formalities in respect of the change or for cancellation of the recordal and his failure has serous impact on another party’s legitimate import or export or on the Customs performance of its functions of supervision and administration under the law, the General Administration of Customs may cancel, at the request of an interested party or ex officio，the recordal of the relevant intellectual property right.

Chapter III Application for Detention of Suspected Infringing Goods and Handling of the Matter

Article 12 Where the owner of the intellectual property right discovers that some suspected infringing goods are about to be imported or exported, he may file an application with the Customs of the place where the goods are imported or exported for detaining the suspected infringing goods.

Article 13 The owner of the intellectual property right requesting the Customs to detain suspected infringing goods shall file a written application and submit the relevant certifying documents and evidence sufficient to prove the obvious existence of the facts of infringement.

The application shall cover the following:

(1) the name or personal name and the place of registration or nationality of the owner of the intellectual property right;

(2) the title, contents and relevant information of the intellectual property right;

(3) the name of the consignees or consignors of the suspected infringing goods;

(4) the designation and specifications of the relevant information on the suspected infringing goods;

(5) the port where the relevant information on the suspected infringing goods may be imported or exported, the time and the means of transport.

Where the suspected infringing goods are suspected of infringing a recorded intellectual property right, the application shall also contain the number of the Customs recordal.

Article 14 Where the owner of the intellectual property right requests the Customs to detain suspected infringing goods, he shall submit to the Customs a surety not exceeding the value of the goods to compensate the losses inflicted to the consignee or consignor because of undue application and to pay for the expenses of the Customs for warehouse, custody and disposition of the goods after the detention. Where the owner of the intellectual property right directly pays a warehouse owner for the expenses of the warehouse and custody, the payment shall be deducted from the surety. The specific measures on the matter shall be formulated by the General Administration of Customs.

Article 15 Where the application filed by the owner of the intellectual property right for detaining suspected infringing goods is in conformity with the provisions of Article 13 of these Regulations and the surety is placed according to the provision of Article 14 of these Regulations, the Customs shall detain the suspected infringing goods, notify in writing the owner of the intellectual property right and deliver the Customs detention warrant to the consignee or consignor.

Where the application filed by the owner of the intellectual property right for detaining suspected infringing goods is not in conformity with the provision of Article 13 of these Regulations and the surety is not placed according to the provision of Article 14 of these Regulations, the Customs shall reject the application and notify the owner of the intellectual property right in writing.

Article 16 Where the Customs discovers that a consignment of import or export goods is suspected of infringing a recorded intellectual property right, it shall immediately notify the owner of the intellectual property right in writing. Where the owner of the intellectual property right files an application within three working days from the date of receipt of the notification according to the provisions of Article 13 of these Regulations and place surety according to the provision of Article 14 of these Regulations, the Customs shall detain the suspected infringing goods, notify the owner of intellectual property right in writing and serve the warrant of customs detention to the consignee or consignor. Where the intellectual property right owner fails to file an application or place the surety within the time limit, the Customs shall not detain the goods.

Article 17 With the consent of the Customs, the owner of the intellectual property rights and consignees or consignors may inspect the relevant goods.

Article 18 Where the consignee or consignor believes that his goods do not infringe the intellectual property right of the owner of the intellectual property right, he shall make written explanation to the Customs, with the relevant evidence attached.

Article 19 Where the consignee or consignor of the suspected infringing goods believes that his import or export goods do not infringe the patent right, he may, after placing to the Customs a surety equivalent to the value of the goods, request the Customs to release his goods. Where the owner of the intellectual property right fails to institute proceedings in the people's court within a due time limit, the Customs shall return the surety.

Article 20 Where after the Customs discovers that a consignment of import or export goods is suspected of infringing a recorded intellectual property right and informs the owner of intellectual property right, the owner of intellectual property right requests the Customs to detain the suspected infringing goods, it shall, within thirty working days from the date of detention, begin to investigate and determine whether the suspected infringing goods detained have infringed the intellectual property rights Where the Customs holds it impossible to determine the infringement, it shall notify the owner of the intellectual property right in writing immediately.

Article 21 Where the Customs investigates the suspected infringing goods detained and requests the competent intellectual property department for assistance, the relevant competent intellectual property department shall give the assistance.

Where the competent intellectual property department handling cases involving infringement of the import or export goods requests the Customs for assistance, the Customs shall give the assistance.

Article 22 When the Customs investigates the suspected infringing goods detained, the intellectual property right owner and the consignees or consignors shall cooperate.

Article 23 After filing an application with the Customs for taking the protection measures, the owner of the intellectual property right may file an application with the people's court for ordering cessation of the infringement or taking the measure for property preservation in connection with the suspected infringing goods detained pursuant to the Trademark Law of the People's Republic of China, the Copyright Law of the People's Republic of China, the Patent Law of the People's Republic of China or other relevant laws.

Where the Customs received the notification from the people's court seeking assistance in enforcement relating to the order for cessation of the infringement or property preservation, the Customs shall give the assistance.

Article 24 The Customs shall, in one of the following events, release the suspected infringing goods detained:

(1) where the Customs detains the suspected infringing goods according to Article 15 of these Regulations and does not receive notification for assistance in enforcement from the people's court within twenty working days from the date of detention;

(2) where the Customs detains the suspected infringing goods according to Article 16 of these Regulations and does not receive notification for assistance in enforcement from the people's court within fifty working days from the date of detention and cannot determine that the suspected infringing goods have infringed the intellectual property right upon investigation;

(3) where the consignee or consignor of the suspected infringing goods, after placing with the Customs the surety equivalent to the value of the goods, requests the Customs to release his goods;

(4) where the Customs holds that the consignee or consignor has sufficient evidence to prove that his goods do not infringe the intellectual property right of the owner of the intellectual property right; or

(5) where the owner of the intellectual property right withdraws his application for detention of the suspected infringing goods before the Customs determines that the suspected infringing goods detained are infringing goods.

Article 25 Where the Customs detain the suspected infringing goods, the owner of the intellectual property right shall pay for the expenses for the warehouse, custody and disposition of the goods. Where the owner of the intellectual property right fails to pay for the relevant expenses, the Customs may deduct them from the surety the owner has placed therewith, or require the surety to fulfill the relevant surety obligation.

Where it is established that the suspected infringing goods have infringed an intellectual property right, the owner of the intellectual property right may add the expenses for the warehouse, custody and disposition of the goods to the reasonable expenses paid to cease the infringement.

Article 26 Where the Customs find a criminal offence when enforcing the intellectual property right, the matter shall be transferred to the public security authority.

Chapter IV Legal Responsibility

Article 27 Where the suspected infringing goods detained are established, upon Customs’ investigation, as infringing the intellectual property rights, the Customs shall confiscate them.

After the Customs confiscate the goods infringing the intellectual property rights, they shall notify in writing the owner of the intellectual property right of the relevant circumstance about the goods infringing the intellectual property rights.

Where the confiscated infringing goods may be used for the purpose of public welfare, the Customs shall transfer them to the relevant public welfare organisation to be used for the public welfare; where the owner of the intellectual property right is willing to buy them, the Customs may transfer the goods to him with payment made thereby. Where it is impossible for the confiscated goods infringing the intellectual property right to be used for the purpose of public welfare and the owner of the intellectual property right is unwilling to buy them, the Customs may auction them according to the law after the infringing features are eliminated, but in respect of imported goods of counterfeit trademarks, with exception to special circumstances, they shall not be allowed to enter the channel of commerce merely after their trademark representations are eliminated; and where the infringing features are impossible to be eliminated, the Customs shall destroy the goods.

Article 28 Where, after accepting an application for recordal for protection of an intellectual property right and for taking measures to protect the intellectual property right, the Customs cannot discover infringing goods, take the protection measures in a timely manner, or take inadequate protection measures because the intellectual property right owner did not provide the exact information, the owner of the intellectual property rights shall be responsible therefor himself.

Where, after the owner of the intellectual property right requests the Customs to the detain suspected infringing goods, the Customs cannot establish that the detained suspected infringing goods have infringed the intellectual property right of the owner thereof or the people's court decides on the non-infringement of the intellectual property right, the owner of the intellectual property right shall be liable for the damages under law.

Article 29 Anyone who imports or exports infringing goods and whose act constitutes a crime shall be prosecuted for criminal liabilities under law.

Article 30 Any customs official who, when protecting the intellectual property right, neglects his duty, abuses his power or engages in malpractice for personal gains and whose acts constitute a crime shall be prosecuted for his criminal liabilities under law; where his acts are not serious enough to constitute a crime, he shall be given administrative disciplinary penalty under law.

Chapter V Supplementary Provisions

Article 31 Where the goods which a person takes or posts in or out of the border are more than the reasonable amount for personal use and have infringed the intellectual property right provided for in Article 2 of these Regulations, the Customs shall treat them as infringing goods.

Article 32 Where the owner of an intellectual property right has recorded his intellectual property right with the General Administration of Customs, he shall pay the recordal fee pursuant to the relevant regulations of the State.

Article 33 These Regulations shall enter into force as of 1 March 2004. The Regulations of the People's Republic of China Regarding Customs Protection of Intellectual Property Rights issued by the State Council as of 5 July 1995 shall be abrogated simultaneously.