|
Regulations of the People's Republic of China Regarding
Customs Protection of Intellectual Property Rights
(Adopted at the 30th Meeting of the Standing Committee of the State Council on 26 November 2003 and entering into force on 1 March 2004)
Chapter I General Provisionsa
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 of the society, these Regulations are 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 intellectual property rights related to import and export ods and protected by the laws and administrative regulations of the People's Republic of China, including 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).
Article 3 The People's Republic of China prohibits from import or export ods which infringe the intellectual property rights.
The customs authorities effect the protection of intellectual property pursuant to the relevant laws and provisions of these Regulations and exercise the related right 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 adopting the protective measures.
Article 5 The consignees of import ods or consignors of export ods 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 ods and submit the relevant certificates and documents.
Article 6 In protecting the intellectual property rights, the Customs shall keep confidential the trade secrets of the relevant parties.
Chapter II Recordation of Intellectual Property Rights
Article 7 The owners of the intellectual property right may apply to the General Administration of Customs for the recordation of their intellectual property rights according to the provisions of these Regulations; those applying for the recordation shall file an application in writing. The application shall include the following contents:
(1) the name or personal name, place of registration or nationality of the owner of the intellectual property right;
(2) the title, contents and relevant information of the intellectual property rights;
(3) the state of execution of intellectual property licenses;
(4) the designation, origin, customs house of entry or exit, importer or exporter, principal features and normal price of the ods in respect of which the owner of the intellectual property right has lawfully exercised the intellectual property right; and
(5) the manufacturer, importer or exporter, main customs house of entry or exit, principal features and price of the known infringing ods;
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, inform in writing the applicant whether his application for the recordation of his intellectual property right is approved. Where the General Administration of Customs does not approve his application, it shall explain the reason.
Under any one of the following circumstances, the General Administration of Customs shall not put it on record:
(1) the application documents are incomplete or invalid;
(2) the applicant is not an intellectual property right owner; or
(3) 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 fails to provide the authentic facts or documents in application for recordation of the intellectual property right, the General Administration of Customs may cancel the recordation.
Article 10 The recordation of customs protection for an intellectual property right shall come into effect from the date of approval of the recordation by the General Administration of Customs. The period of validity of the recordation is 10 years.
On the premise that the intellectual property right is valid, the owner of the intellectual property right may, within six months before the expiration of the period of validity of the recordation of customs protection for the intellectual property right, apply to the General Administration of Customs for renewal of the recordation. The period of validity of each renewal of the recordation is 10 years.
Where no renewal is applied for on the expiration of the recordation of customs protection for the intellectual property right or where the intellectual property rights is no longer protected under the law and administrative regulations, the recordation of customs protection for the intellectual property right will lose its effect immediately.
Article 11 Where the state of the intellectual property right on recordation changes, the owner of the intellectual property right shall, within 30 working days from the date of the change, through the formalities for the change or cancellation of the recordation at the General Administration of Customs.
Chapter III Application for Detention and Handling of Suspected Infringing ods
Article 12 Where the owner of the intellectual property right discovers that the suspected infringing ods are about to be imported or exported, he may file an application with the Customs in the place of import or export of the ods for detaining the suspected infringing ods.
Article 13 The owner of the intellectual property right requesting the Customs to detain the suspected infringing ods 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 include the following contents:
(1) the name, place of registration or nationality of the owner of the intellectual property right;
(2) the designation, contents and relevant information of the intellectual property right;
(3) the name of the consignees or consignors of the suspected infringing ods;
(4) the designation and specifications of the relevant information on the suspected infringing ods;
(5) such as the port where the relevant information on the suspected infringing ods may be imported or exported, the time and the means of transport.
Where the suspected infringing ods are suspected of infringing the intellectual property right on recordation, the application shall also contain the number of the Customs recordation.
Article 14 Where the owner of the intellectual property right requests the Customs to detain the suspected infringing ods, he shall submit to the Customs a surety not exceeding the value of the ods 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 ods 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 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 ods is in conformity with the provisions of Article 13 of these Regulations and the surety according to the provision of Article 14 of these Regulations, the Customs shall detain the suspected infringing ods, 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 ods is not in conformity with the provisions of Article 13 of these Regulations and the surety is not submitted 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 ods is suspected of infringing an item of intellectual property right on record, it shall immediately notify the owner of intellectual property right in writing. The owner of intellectual property right shall file application within three working days from the date of receipt of the notification according to the provisions of Article 13 of these Regulations and submit surety according to the provision of Article 14 of these Regulations. The Customs shall detain the suspected infringing ods, notify the owner of intellectual property right in writing and serve the warrant for customs detention to the consignee or consignor. Where the intellectual property right owner fails to file an application or submit the surety within the time limit, the Customs shall not detain the ods.
Article 17 With the consent of the Customs, the owner of the intellectual property rights and consignees or consignors may check the relevant ods.
Article 18 Where the consignee or consignor holds that his ods does not infringe the intellectual property right of the owner of the intellectual property right, he shall submit to the Customs written explanation attached with the relevant evidence.
Article 19 Where the consignee or consignor of the suspected infringing ods holds that his import or export ods do not infringe the patent right, he may, after submitting to the Customs a surety equivalent to the value of the ods, request the Customs to release his ods. Where the owner of the intellectual property right fails to institute proceedings in the people's court within due time limit, the Customs shall return the surety.
Article 20 Where after the Customs discovers that a consignment of import or export ods is suspected of infringing an item of intellectual property right on recordation and informs the owner of intellectual property right, the owner of intellectual property right requests the Customs to detain the suspected infringing ods, it shall, within 30 working days from the date of detention, begin to investigate and determine whether the suspected infringing ods 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 When the Customs investigates the suspected infringing ods detained and requests the competent department of the intellectual property rights for assistance, the relevant competent department of the intellectual property rights shall render assistance.
Where the competent department of the intellectual property rights handling cases involving the infringement of the import or export ods request the Customs for assistance, the Customs shall render the assistance.
Article 22 When the Customs investigates the suspected infringing ods detained, the intellectual property right owner and the consignees or consignors shall cooperate.
Article 23 After applying to the Customs for the adoption of the protective measures, the owner of the intellectual property right may, before instituting proceedings, file an application with the people's court for ordering cessation of the infringing act or taking the measure for property preservation in connection with the detained suspected infringing ods according to the Trademark Law of the People's Republic of China or the Patent Law of the People's Republic of China.
Where the Customs have received the notification from the people's court of assistance in enforcement relating to the order for cessation of the infringing act or the property preservation, it shall render assistance.
Article 24 The Customs shall, in one of the following events, release the suspected infringing ods detained:
(1) where the Customs detains the suspected infringing ods according to Article 15 of these Regulations and does not receive the notification of 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 ods according to Article 16 of these Regulations and does not receive the notification of assistance in enforcement from the People's Court within fifty working days from the date of detention and cannot determine that the suspected infringing ods have infringed the intellectual property rights upon investigation;
(3) where the consignees or consignors of the suspected infringing ods, after submitting to the Customs the surety equivalent to the value of the ods, requests the Customs to release his ods; or
(4) where the Customs holds that the consignee or consignors has sufficient evidence to prove that his ods do not infringe the intellectual property rights of the owner of the intellectual property right.
Article 25 Where the Customs detain the suspected infringing ods, the owner of the intellectual property right shall pay for the expenses for the warehouse, custody and disposition of the ods. Where the owner of the intellectual property right fails to pay the relevant expenses, the Customs may deducted them from the surety the owner has submitted thereto, or require one to submit the surety to perform the relevant surety obligation.
Where it is established that the suspected infringing ods have infringed the intellectual property right, the owner of the intellectual property right may add the expenses for the warehouse, custody and disposition of the ods to the reasonable expenses paid to cease the infringing act.
Article 26 Where the Customs suspected a criminal act when enforcing the intellectual property right, the matter shall be transferred to the organs of public security.
Chapter IV Legal Responsibility
Article 27 Where the detained suspected infringing ods are established upon Customs investigation as infringing the intellectual property rights, they shall be confiscated by the Customs.
After the Customs confiscates the ods infringing the intellectual property rights, it shall notify in writing the owner of the intellectual property right of the relevant circumstance about the ods infringing the intellectual property rights.
Where the confiscated infringing ods may be used for the 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 convey the ods to him with fees charged. Where it is impossible for the confiscated ods infringing the intellectual property right to be used for the public welfare and the owner of the intellectual property right is unwilling to buy them, the Customs may auction them after the infringing features are eliminated; and where the infringing features are impossible to be eliminated, the Customs shall destroy them.
Article 28 Where the ods 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 confiscate them.
Article 29 Where, after the Customs accepts the application for recordation for protection of the intellectual property right and for taking the intellectual property right protection measures, the failure, on the part of the owner of the intellectual property rights, to provide the exact information results in the lack of discovery of the infringing ods, in failure to take, in a timely manner the protective measures, or in inadequate protective measures, the owner of the intellectual property rights shall be responsible therefor himself or itself.
Where after the owner of the intellectual property rights requests the Customs to the detain suspected infringing ods, the Customs cannot establish the detained suspected infringing ods have infringed the intellectual property right of the owner thereof, or the people's court rules on the non-infringement of the intellectual property right, the owner of the intellectual property right shall be liable for the damages according to law.
Article 30 Anyone, whose import or export of infringing ods constitutes a crime, shall be prosecuted for his criminal liability according to law.
Article 31 Any customs official who, in carrying out intellectual property right protection, neglects his duty, abuses his powers or engages in malpractice for personal gains, which constitute a crime, shall be prosecuted for his criminal liability according to law; where his acts are not serious enough to constitute a crime, he shall be given administrative disciplinary sanction according to law.
Chapter V Supplementary Provisions
Article 32 Where the owner of the intellectual property right puts his intellectual property right on recordation with the General Administration of Customs, he shall pay the recordation fee according 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. | 
