Customs Recordation and Protection of Intellectual Property |
- PRC Customs
Protection of Intellectual Property Rights Regulations |
PRC Customs Protection of
Intellectual Property Rights Regulations
(Promulgated by the State
Council on 2 December 2003 and effective as of 1 March 2004.)
PART ONE:
GENERAL PROVISIONS
Article
1: These Regulations are formulated in accordance with
the PRC, Customs Law in order to implement customs protection of
intellectual property rights, promote foreign economic trade and technological
and cultural exchange, and safeguard social interests.
Article
2: For the purposes of these Regulations, "customs
protection of intellectual property rights" refers to the implementation
of protection by customs of the exclusive rights to use a trademark, copyrights
and the rights related thereto, and patent rights that are related to import
and export goods and that are protected by PRC laws and administrative
regulations (Intellectual Property Rights).
Article
3: The State prohibits the import and export of goods
that infringe upon Intellectual Property Rights.
Customs
shall implement protection of Intellectual Property Rights and exercise the
relevant powers stipulated in the PRC, Customs Law in accordance with
the provisions of relevant laws and these Regulations.
Article
4: Owners of Intellectual Property Rights that request
customs to implement protection of Intellectual Property Rights shall submit an
application to customs for adoption of protective measures.
Article
5: Consignees of import goods or their agents, and
consignors of export goods or their agents shall truthfully declare to customs
the details of Intellectual Property Rights related to the import or export
goods, and shall submit the relevant supporting documents.
Article
6: When implementing protection of Intellectual Property
Rights, customs shall maintain the confidentiality of the trade secrets of the
related parties.
PART TWO:
RECORD FILING OF INTELLECTUAL PROPERTY RIGHTS
Article
7: An owner of Intellectual Property Rights may apply
to the General Administration of Customs for record filing of his Intellectual
Property Rights according to the provisions hereof. To apply for record filing,
an application form shall be submitted. An application form shall include the
following particulars:
1.
the name or personal name, place of registration or nationality, etc. of the
owner of the Intellectual Property Rights;
2.
the name, details and the relevant information of the Intellectual Property
Rights;
3.
the details of the exercise of the Intellectual Property Rights licence;
4.
the name, place of origin, customs at the point of entry/exit, importers and
exporters, major characteristics, and prices, etc. of the goods of which the
Intellectual Property Rights are lawfully exercised by the owner of
Intellectual Property Rights; and
5.
the manufacturers, importers and exporters, customs at the point of entry/exit,
major characteristics, and prices, etc. of goods that are known to have
infringed upon Intellectual Property Rights.
Where
there are supporting documents for the contents of the application form
specified in the preceding paragraph, the owner of Intellectual Property Rights
shall attach the supporting documents.
Article
8: The General Administration of Customs shall, within
30 working days of the date of receipt of all application documents, render a
decision on whether to grant approval for record filing, and shall notify the
applicant in writing. Where approval for record filing is not granted, the
reasons therefor shall be stated.
The
General Administration of Customs shall not grant approval for record filing in
any of the following circumstances:
1.
the application documents are incomplete or invalid;
2.
the applicant is not the owner of the Intellectual Property Rights; or
3.
the Intellectual Property Rights are no longer protected by laws or
administrative regulations.
Article
9: If customs discovers that an owner of Intellectual
Property Rights that applies for record filing of Intellectual Property Rights
has not provided the relevant details or documents truthfully, the General
Administration of Customs may revoke its filed record.
Article
10: A filed record for customs protection of Intellectual
Property Rights shall be effective as of the date on which the General
Administration of Customs grants approval for record filing, and shall be valid
for 10 years.
Where the
Intellectual Property Rights are valid, the owner of the Intellectual Property
Rights may, within six months prior to the expiration of the term of validity
of the filed record for customs protection of Intellectual Property Rights,
apply to the General Administration of Customs for an extension of the filed
record. The term of validity of each extension of a filed record shall be 10
years.
Where no
application for extension has been made upon the expiration of the term of
validity of a filed record for customs protection of Intellectual Property
Rights, or the Intellectual Property Rights are no longer protected by laws or
administrative regulations, the filed record for customs protection of
Intellectual Property Rights shall immediately become void.
Article
11: Where there is a change in the details of a filed
record of Intellectual Property Rights, the owner of the Intellectual Property
Rights shall, within 30 working days of the date on which the change occurs,
carry out the amendment or cancellation procedures with the General Administration
of Customs.
PART
THREE: APPLICATION FOR IMPOUNDMENT OF GOODS SUSPECTED OF INFRINGING UPON
RIGHTS, AND THE HANDLING THEREOF
Article
12: Where an owner of Intellectual Property Rights
discovers that goods suspected of infringing upon rights are about to be
imported or exported, he may submit an application for impoundment of goods
suspected of infringing upon rights to the customs of the place where the goods
are to enter into, or exit from, China.
Article
13: Where an owner of Intellectual Property Rights
requests customs to impound goods suspected of infringing upon rights, he shall
submit an application form and the relevant supporting documents, and shall
provide evidence that is sufficient to prove that the infringement clearly
exists.
An
application form shall include the following main particulars:
1.
the name or personal name, place of registration or nationality, etc. of the
owner of the Intellectual Property Rights;
2.
the name, details and the relevant information of the Intellectual Property
Rights;
3.
the names of the consignees and consignors of the goods suspected of infringing
upon rights;
4.
the name and specifications, etc. of the goods suspected of infringing upon
rights; and
5.
the port by which, the time at which and the means of transportation by which,
the goods suspected of infringing upon rights may enter into, or exit from,
China.
Where the
goods suspected of infringing upon rights are suspected of infringing upon
Intellectual Property Rights that are filed for record, the application form
shall also include the customs record number.
Article
14: Where an owner of Intellectual Property Rights
requests customs to impound goods suspected of infringing upon rights, he shall
provide to customs a guarantee equal to the value of the goods for compensation
of any loss that may be incurred by the consignee or the consignor due to
improper application, and for payment of fees for the storage, custody and
disposal, etc. of the goods after they are impounded by customs. Where an owner
of Intellectual Property Rights pays the fees for storage and custody directly
to the storage provider, such fees shall be deducted from the guarantee. The
specific procedures shall be formulated by the General Administration of
Customs.
Article
15: Where an owner of Intellectual Property Rights that
applies for impoundment of goods suspected of infringing upon rights satisfies
the provisions of Article 13 hereof and provides a guarantee in accordance with
Article 14 hereof, customs shall impound the goods suspected of infringing upon
rights, notify the owner of Intellectual Property Rights in writing, and
deliver a certificate of impoundment by customs to the consignee or consignor.
Where an
owner of Intellectual Property Rights that applies for impoundment of goods
suspected of infringing upon rights does not satisfy the provisions of Article
13 hereof or has not provided a guarantee in accordance with Article 14 hereof,
customs shall reject the application and notify the owner of Intellectual
Property Rights in writing.
Article
16: Where customs discovers import or export goods that
are suspected of infringing upon Intellectual Property Rights that are filed
for record, it shall notify the owner of the Intellectual Property Rights
immediately in writing. Where, within three working days of the date of
delivery of the notification, the owner of the Intellectual Property Rights
submits an application according to Article 13 hereof and provides a guarantee
according to Article 14 hereof, customs shall impound the goods suspected of
infringing upon rights, notify the owner of the Intellectual Property Rights in
writing, and deliver a certificate of impoundment by customs to the consignee
or consignor. Where the owner of the Intellectual Property Rights fails to
submit an application or provide a guarantee within the time limit, customs may
not impound the goods.
Article
17: An owner of Intellectual Property Rights and the
consignee or consignor may inspect the relevant goods upon the approval of
customs.
Article
18:Where the consignee or consignor considers that his
goods have not infringed upon the Intellectual Property Rights of the owner of
Intellectual Property Rights, he shall submit a written explanation to customs
and attach the relevant evidence.
Article
19: Where a consignee or consignor of goods suspected of
infringing upon patent rights considers that his import or export goods have
not infringed upon patent rights, he may, after providing a guarantee equal to
the value of the goods, request customs to release his goods. If the owner of
Intellectual Property Rights fails to institute an action at a people's court
within a reasonable time period, customs shall return the guarantee.
Article
20: If, after customs has discovered import or export
goods suspected of infringing upon Intellectual Property Rights that are filed
for record and has notified the owner of the Intellectual Property Rights, the
owner of the Intellectual Property Rights requests customs to impound the goods
suspected of infringing upon rights, customs shall, within 30 working days of
the date of impoundment, investigate and confirm whether the impounded goods
suspected of infringing upon rights have infringed upon Intellectual Property
Rights. If it cannot confirm an infringement, it shall notify the owner of the
Intellectual Property Rights immediately in writing.
Article
21: Where customs conducts an investigation into the
impounded goods suspected of infringing upon rights and requests the assistance
of the department in charge of Intellectual Property Rights, the relevant
department in charge of Intellectual Property Rights shall provide assistance.
Where the
department in charge of Intellectual Property Rights requests customs to
provide assistance in the handling of rights infringement cases involving
import and export goods, customs shall provide assistance.
Article
22: Where customs conducts an investigation into the
impounded goods suspected of infringing upon rights and the relevant details, the
owner of Intellectual Property Rights and the consignee or consignor shall
coordinate with the investigation.
Article
23: An owner of Intellectual Property Rights may, after
applying to customs for adoption of protective measures, apply to the people¡¯s
court for an order of cessation of the infringing act or preservation of
property for the impounded goods suspected of infringing upon rights prior to
the institution of action in accordance with the provisions of the PRC,
Trademark Law, the PRC, Copyright Law or the PRC, Patent Law.
Customs
that receives the notice to assist in execution of an order of cessation of an
infringing act or preservation of property from the people¡¯s court shall
provide assistance.
Article
24: Customs shall release the impounded goods suspected
of infringing upon rights in any of the following circumstances:
1.
customs impounds goods suspected of infringing upon rights according to Article
15 hereof, and has not received the notice to assist in execution from the people¡¯s
court within 20 working days from the date of impoundment;
2.
customs impounds goods suspected of infringing upon rights according to Article
16 hereof, and has not received the notice to assist in execution from the
people's court within 50 working days from the date of impoundment, and cannot
confirm that the impounded goods suspected of infringing upon rights has
infringed upon Intellectual Property Rights after investigation;
3.
the consignee or consignor of the goods suspected of infringing upon patent
rights requests customs to release his goods after providing a guarantee equal
to the value of the goods; or
4.
customs considers that the consignee or consignor has sufficient evidence to
prove that his goods have not infringed upon the Intellectual Property Rights
of the owner of Intellectual Property rights.
Article
25: Where customs impounds goods suspected of infringing
upon rights according to the provisions hereof, the owner of the Intellectual
Property Rights shall pay the relevant fees for storage, custody and disposal,
etc. Where the owner of the Intellectual Property Rights has not paid the
relevant fees, customs may deduct such fees from the guarantee he provides to
customs, or request the guarantor to perform the relevant guarantee liability.
Where
goods suspected of infringing upon rights are confirmed as having infringed
upon Intellectual Property Rights, the owner of the Intellectual Property
Rights may include the relevant fees for storage, custody and disposal, etc. he
has paid in the reasonable expenditure paid for cessation of the infringing
acts.
Article
26: Where customs discovers a case suspected of a
criminal offence during implementation of protection of Intellectual Property
Rights, it shall hand over the case to the public security authority according
to law for handling.
PART FOUR:
LEGAL LIABILITY
Article
27: Where impounded goods suspected of infringing upon
rights are confirmed as having infringed upon Intellectual Property Rights
after investigation by customs, customs shall confiscate the goods.
After
customs has confiscated the goods that have infringed upon Intellectual
Property Rights, it shall notify the owner of the Intellectual Property Rights
in writing of the relevant details of such goods.
Where
confiscated goods that have infringed upon Intellectual Property Rights can be
used for public welfare, customs shall transfer the goods to the relevant
public welfare organizations to be used for public welfare. Where the owner of
the Intellectual Property Rights wishes to acquire the goods, customs may
transfer the goods to the owner of the Intellectual Property Rights for
compensation. Where confiscated goods that has infringed upon Intellectual
Property Rights cannot be used for public welfare and the owner of the
Intellectual Property Rights does not wish to acquire the goods, customs may
auction off the goods according to law after removing the infringing
characteristics. Where the infringing characteristics cannot be removed,
customs shall destroy the goods.
Article
28: Where articles carried or sent by mail by individuals
into or out of China exceed the amount for personal use or the reasonable
amount and infringe upon the Intellectual Property Rights stipulated in Article
2 hereof, customs shall confiscate such articles.
Article
29: Where, after customs has accepted an application for
record filing of protection of Intellectual Property Rights and for adoption of
protective measures for Intellectual Property Rights, an owner of Intellectual
Property Rights cannot provide precise details and as a result, the goods
infringing upon rights are not discovered, or the protective measures are not
adopted in a timely manner or effectively, the owner of the Intellectual
Property Rights shall bear the liability himself.
Where,
after an owner of Intellectual Property Rights has requested customs to impound
goods suspected of infringing upon rights, customs cannot confirm whether the
impounded goods suspected of infringing upon rights has infringed upon the Intellectual
Property Rights of the owner of Intellectual Property Rights, or the people's
court rules that the goods have not infringed upon the Intellectual Property
Rights of the owner of Intellectual Property Rights, the owner of Intellectual
Property Rights shall be liable for compensation according to law.
Article
30: Where the import or export of goods that infringe
upon Intellectual Property Rights constitutes a criminal offence, criminal
liability shall be pursued according to law.
Article
31: Where the personnel of customs are derelict in their
duties, abuse their authority or practise graft in their implementation of
protection of Intellectual Property Rights, and a criminal offence is
constituted, their criminal liability shall be pursued according to law. Where
the same is insufficient to constitute a criminal offence, they shall be
subjected to administrative penalty according to law.
PART FIVE:
SUPPLEMENTARY PROVISIONS
Article
32: Where an owner of Intellectual Property Rights
handles record filing of his Intellectual Property Rights with the General
Administration of Customs, he shall pay the fee for record filing in accordance
with the relevant State provisions.
Article
33: These Regulations shall be implemented as of 1 March
2004. The PRC, Customs Protection of Intellectual Property Rights
Regulations promulgated by the State Council on 5 July 1995 shall be
simultaneously repealed.