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Position：Home > Others > Regulation of the People's Republic of China on the Customs Protection of Intellectual Property Rights (2018 Revision) |
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| Regulation of the People's Republic of China on the Customs Protection of Intellectual Property Rights (2018 Revision) |
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Chapter
I General Provisions
Article 1 The present Regulation is formulated in
accordance with the “Customs Law of the People's Republic
of China” in order to carry out the customs protection of
intellectual property rights, to promote economic and trade contacts as well as
scientific, technological and cultural contacts with foreign countries, and to
maintain public benefits.
Article 2 Customs protection of intellectual property rights mentioned in the
present Regulation means the protection practiced by the customs of the rights
to exclusive use of trademarks, copyrights and copyright-related rights, patent
rights (hereinafter uniformly referred to as intellectual property rights),
which are related to imported and exported goods and protected by the laws and
administrative regulations of the People's Republic of China.
Article 3 The State prohibits the import and export of goods infringing upon
intellectual property rights.
The customs shall, in accordance with relevant laws and the present Regulation,
practice protection of intellectual property rights, and exercise the relevant
powers prescribed in the “Customs Law of the People's Republic
of China”.
Article 4 Where an intellectual property right holder requests the customs to
practice protection of his intellectual property rights, he shall apply to the
customs for taking protective measures.
Article 5 A consignee of imported goods or his agent, or a consigner of exported
goods or his agent shall, in accordance with the provisions of the State,
truthfully declare to the customs the status of his intellectual property
rights related to the imported or exported goods, and shall submit relevant
documents of proof.
Article 6 The customs shall, when practicing protection of intellectual property
rights, keep the commercial secrets of the relevant parties.
Go Top
Chapter
II Archival Filing of Intellectual Property Rights
Article
7. The
right owner may apply for recordal of his intellectual property
rights with the Customs General Administration (CGA) according to
the provisions of these Regulations. Those applying for the recordal
shall submit a written application, which shall include:
(1) the name, registration place or nationality, etc. of the right
owner;
(2) the title, content and relevant information of the intellectual
property right;
(3) any licensing agreement signed for the intellectual property
right;
(4) the name, producing place, the Customs located in importing
or exporting place, importer, exporter, principle features, price
and other information of the goods in which the right owner exercise
their intellectual property right legitimately;
(5) the manufacturer, importer, exporter, the Customs located in
importing or exporting place, principle features, price and other
information of the goods which have been known to infringe the intellectual
property right;
Any certificates should be submitted, if there is any.
Article
8. The
CGA shall make a decision whether to record the intellectual property
rights within thirty business days from the date of receipt of all
the application documents and notify the applicant accordingly in
writing. Where the application is rejected, the CGA shall give the
reasons.
In any of the following situations, the CGA shall reject the application:
(1) where the application documents are incomplete or invalid;
(2) where the applicant is not the right owner; or
(3) where the intellectual property right is no longer protected
by laws and administrative regulations.
Article
9. Where
Customs discover that the right owner fails to truthfully provide
the relevant information or documents in the application, the CGA
may cancel his recordal.
Article
10. The
recordal shall be valid for ten years, counted from the date of
the CGA's approval of the recordal.
Where the intellectual property rights are valid, the right owner
may apply for a renewal within six months before the expiration
of the recordal. And each renewal is valid for ten years.
The recordal shall become invalid if the right owner does not apply
for a renewal when it expires or the intellectual property rights
are no longer protected by laws and administrative regulations.
Article
11. Where
the recorded intellectual property rights have changed, the right
owner shall go through the formalities of changing or canceling
the recordal within thirty business days from the date of alternation
of the recorded intellectual property rights.
Go Top
Chapter
III Application for and
Handling of Detainment of Suspected Infringing Goods
Article 12 Where an intellectual property right holder
finds that any suspected infringing goods are about to be imported or exported,
he may file an application to the customs at place of entry or exit for
detainment of such goods.
Article 13 Where an intellectual property right holder requests the customs to
detain any suspected infringing goods, he shall submit an application letter
and relevant documents of proof, and provide evidence sufficient to prove the
obvious existence of the infringement facts as well.
An application letter shall include the following main contents:
(1) the intellectual property right holder's name, and his place of
registration or his nationality, etc.;
(2) the intellectual property's name, contents, and relevant information;
(3) the names of both the consignee and the consigner of the suspected
infringing goods;
(4) the name and specifications, etc. of the suspected infringing goods; and
(5) the possible port and time of entry or exit of the suspected infringing
goods, and the means of transportation therefor, and so on.
Where the suspected infringing goods are suspected to infringe upon an archived
intellectual property right, the application letter shall also include the
customs archival filing number.
Article 14 Where an intellectual property right holder requests the customs to
detain any suspected infringing goods, he shall provide the customs with a
guaranty of no less than the equivalent value of the goods, which shall be used
to indemnify the losses caused to the consignee or consigner due to
inappropriate application, and to pay the warehousing, custody and disposal
fees, etc. after the goods are detained by the customs; if the intellectual
property right holder directly pays warehousing or custody fees to the
warehouseman, such fees shall be deducted from the guaranty. The specific
measures shall be formulated by the General Administration of Customs.
Article 15 Where an intellectual property right holder who applies for detainment
of any suspected infringing goods conforms to Article 13 of the present
Regulation, and has provided a guaranty as required by Article 14 of the
present Regulation, the customs shall detain the suspected infringing goods,
notify the intellectual property right holder in writing, and serve the customs
detainment list to the consignee or consigner.
Where an intellectual property right holder who applies for detainment of any
suspected infringing goods does not conform to Article 13 of the present
Regulation, or fails to provide a guaranty as required by Article 14 of the
present Regulation, the customs shall reject the application, and notify the
intellectual property right holder in writing.
Article 16 Where the customs finds that any imported or exported goods are
suspected to have infringed upon an archived intellectual property, it shall
immediately notify the intellectual property right holder in writing. If the
intellectual property right holder files an application in accordance with
Article 13 of the present Regulation and provides a guaranty in accordance with
Article 14 of the present Regulation within 3 working days as of service of the
notice, the customs shall detain the suspected infringing goods, notify the
intellectual property right holder in writing, and serve the customs detainment
list to the consignee or consigner. If the intellectual property right holder
fails to file the application or provide the guaranty within the time limit,
the customs shall not detain the goods.
Article 17 Upon consent of the customs, an intellectual property right holder and
the consignee or consigner may view relevant goods.
Article 18 Where a consignee or consigner considers that his goods do not infringe
upon the intellectual property right of the right holder, he shall submit to
the customs a written statement attached with relevant evidence.
Article 19 Where a consignee or consigner who is suspected to infringe upon
patented goods considers that his imported or exported goods do not infringe
upon the patent right, it may, after providing the customs with a guaranty bond
of equivalent value to that of the goods, request the customs to release his
goods. If the intellectual property right holder fails to bring a lawsuit to
the people's court within a reasonable time, the customs shall refund the
guaranty bond.
Article 20 Where, after the customs has found that any imported or exported goods
are suspected to have infringed upon an archived intellectual property, and has
notified the intellectual property right holder, while the intellectual
property right holder requests the customs to detain the suspected infringing
goods, the customs shall investigate into and ascertain within 30 working days
as of the detainment whether the detained suspected infringing goods have
infringed upon the intellectual property; if the said goods are unable to be
ascertained, the customs shall immediately notify the intellectual property
right holder in writing.
Article 21 Where the customs investigates into the detained suspected infringing
goods, and requests the administration of intellectual property rights to
provide assistance, the relevant administration of intellectual property rights
shall provide assistance.
Where, when handling an infringement case of imported or exported goods, the
administration of intellectual property rights requests the customs to provide
assistance, the customs shall provide assistance.
Article 22 When the customs is investigating into the detained suspected
infringing goods and other relevant details, the intellectual property right
holder, and the consignee or consigner shall provide cooperation.
Article 23 An intellectual property right holder may, after filing an application
with the customs for taking protection measures, apply in accordance with 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 to the people's court for
taking the measures of ordering to stop the acts of infringement or taking
property preservation with regard to the suspected infringing goods detained.
The customs shall provide assistance if receiving relevant notice of the
people's court on assisting in ordering to stop the infringing acts or in
taking property preservation.
Article 24 In the event of any of the following circumstances, the customs shall
release the detained suspected infringing goods:
(1) the customs detains the suspected infringing goods in accordance with
Article 15 of the present Regulation, but does not receive the notice of the
people's court on assisting execution within 20
working days as of the detainment;
(2) the customs detains the suspected infringing goods in accordance with
Article 16 of the present Regulation, but does not receive the notice of the
people's court on assisting execution within 50 working days as of the
detainment, and the detained suspected infringing goods cannot be ascertained
upon investigation to have infringed upon any intellectual property;
(3) the consignee or consigner of the goods which are suspected to have
infringed upon a patent right requests, after providing the customs with a
guaranty bond of equivalent value to that of the goods, the customs to release
the goods;
(4) the customs considers that the consignee or consigner has sufficient
evidence to prove that the goods have not infringed upon the intellectual
property right holder's intellectual property.
(5) the intellectual property right holder withdraws the application for
detaining the suspected infringing goods before the customs confirms that the
suspected infringing goods detained are infringing goods.
Article 25 Where the customs detains any suspected infringing goods in accordance
with the present Regulation, the intellectual property right holder shall pay relevant
warehousing, custody and disposal fees, etc. If the intellectual property right
holder has not paid the relevant fees, the customs may deduct them from the
guaranty bond provided to itself, or requests the guarantor to perform the
relevant guaranty responsibilities.
Where the suspected infringing goods are deemed to have infringed upon an
intellectual property, the intellectual property right holder may calculate the
relevant warehousing, custody and disposal fees, etc. he has paid into the
reasonable expenditures for stopping the infringing acts.
Article 26 Where the customs finds any suspected criminal case when carrying out
the protection of intellectual property rights, it shall transfer the case in
accordance with the law to the public security organ for handling.
Go Top
Chapter
IV Legal Liabilities
Article 27 Where any detained suspected infringing goods
are ascertained to have infringed upon an intellectual property right after the
investigation of the customs, they shall be confiscated by the customs.
The customs shall, after confiscating the goods infringing upon an intellectual
property right, inform the intellectual property right holder in writing of the
relevant information on the said goods.
Where the confiscated goods infringing upon an intellectual property can be
used for the commonweal undertaking, the customs shall transfer them to the
relevant commonweal institutions for the purposes of commonweal undertaking; if
the intellectual property right holder has an intent of purchase, the customs
may transfer the goods to the intellectual property right holder
non-gratuitously. If the confiscated goods infringing upon an intellectual
property right are unable to be used for the commonweal undertaking and the
intellectual property right holder has no intent of purchase, the customs may
lawfully auction them after the infringement features have been eliminated; but
the imported goods bearing counterfeit trademarks shall not be permitted to
enter the commercial channels only by eliminating the trademarks on the goods,
except for special circumstances; and if the infringement features are unable
to be eliminated, the customs shall destroy such goods.
Article 28 Where, after accepting an application for archival filing of
intellectual property protection or for taking measures of protecting an
intellectual property, the customs fails to find the infringing goods, or fails
to timely take protection measures or takes poor protection measures due to the
fact that the intellectual property right holder fails to provide exact
information, the intellectual property right holder shall bear the liabilities
by itself.
Where, after the intellectual property right holder requests the customs to
detain the suspected infringing goods, the customs is unable to ascertain that
the detained suspected infringing goods have infringed upon the intellectual
property right holder's intellectual property, or the people's court rules that
the said goods have not infringed upon the intellectual property right holder's
intellectual property right, the right holder shall bear the indemnity
liabilities in accordance with the law.
Article 29 Whoever imports or exports any goods infringing upon an intellectual
property right which constitute a crime shall be subject to criminal liabilities
in accordance with the law.
Article 30 Where any customs functionary neglects his duties, abuses his powers or
practices frauds for personal gains when carrying out protection of
intellectual property rights, and a crime is constituted, he shall be subject
to criminal liabilities in accordance with the law; if no crime is constituted,
he shall be imposed upon administrative sanctions in accordance with the law.
Go Top
Chapter
V Supplementary Provisions
Article 31 Where an individual brings or mails into/out of
China articles exceeding the reasonable quantity for personal use and
infringing upon an intellectual property as prescribed in Article 2 of this
Regulation, such goods shall be treated as infringing goods
Article 32 The present Regulation shall come into force on March 1, 2004. The “Regulation of the People's Republic
of China on Customs Protection of Intellectual Property Rights”
promulgated by the State Council on July 5, 1995 shall be abrogated
simultaneously.
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