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Chapter I General Provisions
Article 1 These Regulations are formulated in
accordance with the Customs Law of the People’s Republic of
China for the purposes of providing customs protection for
intellectual property rights, promoting foreign trade and
international scientific, technological and cultural exchanges
and safeguarding public interests.
Article 2 Customs protection of intellectual
property rights in these Regulations means the protection
provided by the Customs for the exclusive rights to use a
trademark, copyrights and their related rights, and patent
rights (hereinafter referred to as intellectual property rights)
related to import or export goods and protected under the laws
and administrative regulations of the People’s Republic of
China.
Article 3 The State prohibits the importation and
exportation of goods which infringe intellectual property
rights.
The Customs provides protection for intellectual property
rights in accordance with the provisions of relevant laws and
these Regulations, and exercises relevant powers under the
Customs Law of the People’s Republic of China.
Article 4 The holder of an intellectual property
right, where requesting the Customs to provide protection for
his intellectual property right, shall submit an application to
the Customs for taking protective measures.
Article 5 The consignees of import goods or their
agents, and the consignors of export goods or their agents shall
truthfully declare the status of intellectual property rights
related to their import or export goods and present relevant
evidentiary documents to the Customs in accordance with the
provisions of the State.
Article 6 When providing protection for intellectual
property rights, the Customs shall keep the confidentiality of
commercial secrets of the interested parties.
Chapter II Recordation of Intellectual Property Rights
Article 7 The holder of an intellectual property
right may apply for recordation with the General Administration
of Customs of his intellectual property right in accordance with
the provisions of these Regulations; when applying for the
recordation, he shall present a written application. The
application shall include the following particulars:
(1) the name, place of registration or nationality, etc. of
the holder of the intellectual property right;
(2) the name, contents and any other relevant information
relating to the intellectual property right;
(3) the status quo relating to licensing of the
intellectual property right;
(4) the name, origin, Customs at the port of entry or exit,
importer or exporter, main features and prices, etc. of the
goods on which the holder of the intellectual property right
lawfully exercises his right;
(5) the manufacturers, importers or exporters, Customs at
the port of entry or exit, main features and prices, etc. of the
goods that infringe the intellectual property right, as far as
it is known.
Where there are evidentiary documents in the contents of the
application referred to in the preceding paragraph, the holder
of the intellectual property right shall attach evidentiary
documents.
Article 8 The General Administration of Customs
shall, within 30 working days from the date of receipt of all
the application documents, make a decision on whether or not to
grant the recordation and shall notify the applicant in writing;
where the recordation is not granted, reasons thereof shall be
explained.
Under any of the following circumstances, the General
Administration of Customs shall not grant the recordation:
(1) where the application documents are incomplete or
invalid;
(2) where the applicant is not the holder of the
intellectual property right;
(3) where the intellectual property right is no longer
protected under laws or administrative regulations.
Article 9 The General Administration of Customs may
revoke a recordation where the Customs finds that the holder of
an intellectual property right has not truthfully provided the
relevant information or documents in the course of applying for
the recordation of the intellectual property right.
Article 10 A recordation for customs protection of
an intellectual property right shall be valid from the date on
which the General Administration of Customs grants the
recordation and shall be valid for a term of 10 years.
The holder of the intellectual property right may apply to
the General Administration of Customs for renewal of the
recordation for customs protection of the intellectual property
right within six months prior to the expiration of its term of
validity, where the intellectual property right is valid. Each
renewal of a recordation shall be valid for a term of 10 years.
A recordation for customs protection of an intellectual
property right shall cease to be valid immediately where no
application is presented for renewal of the recordation for
customs protection of the intellectual property right upon
expiration of its term of validity, or where the intellectual
property right is no longer protected under laws or
administrative regulations.
Article 11 Where there is any change in respect of a
recorded intellectual property right, the holder of the
intellectual property right shall go through the procedures of
modification or cancellation of recordation with the General
Administration of Customs within 30 working days from the date
of occurrence of such change.
Chapter III Application for Detention of Suspected
Infringing Goods and Disposal Thereof
Article 12 Where discovering the suspected
infringing goods pending importation or exportation, the holder
of an intellectual property right may present an application
with the Customs at the port of entry or exit for detaining such
goods.
Article 13 Where requesting the Customs to detain
the suspected infringing goods, the holder of an intellectual
property right shall present a written application and relevant
evidentiary documents, and provide as well any evidence that
sufficiently proves the obvious existence of the fact of
infringement.
An application shall mainly include the following
particulars:
(1) the name, place of registration or nationality, etc. of
the holder of the intellectual property right;
(2) the name, contents and any other relevant information
relating to the intellectual property right;
(3) the names of the consignee and consignor of the
suspected infringing goods;
(4) the names, specifications, etc. of the suspected
infringing goods;
(5) the possible ports, time, means of transport, etc.
related to the importation or exportation of the suspected
infringing goods.
The application shall include the number of customs
recordation in addition where the goods are suspected of
infringing a recorded intellectual property right.
Article 14 Where requesting the Customs to detain
the suspected infringing goods, the holder of an intellectual
property right shall provide the Customs with a security not
exceeding or equivalent to the value of the goods to cover the
possible compensation for the losses suffered by the consignee
or consignor due to an improper application, and the payment of
the expenses of warehousing, maintenance and disposal of the
goods incurred after being detained by the Customs. The
corresponding amount shall be deducted from the security where
the holder of the intellectual property right makes a direct
payment of the expenses of warehousing and maintenance to the
warehousing entity. Specific measures therefor are formulated by
the General Administration of Customs.
Article 15 Where the holder of an intellectual
property right has applied for detention of the suspected
infringing goods in conformity with the provisions of Article 13
of these Regulations and provided a security in conformity with
the provisions of Article 14 of these Regulations, the Customs
shall detain the suspected infringing goods, notify the holder
of the intellectual property right in writing of the detention
and serve the consignee or consignor with a Customs Detention
Receipt.
Where the holder of an intellectual property right fails to
comply with the provisions of Article 13 of these Regulations
when applying for detaining the suspected infringing goods, or
fails to comply with the provisions of Article 14 of these
Regulations when providing a security, the Customs shall refuse
the application and notify the holder of the intellectual
property right in writing of such refusal.
Article 16 Where discovering any import or export
goods suspected of infringing a recorded intellectual property
right, the Customs shall immediately notify the holder of the
intellectual property right in writing of such suspected
infringement. Where the holder of the intellectual property
right presents an application in conformity with the provisions
of Article 13 of these Regulations and provides a security in
conformity with the provisions of Article 14 of these
Regulations within three working days from the date of service
of the notification, the Customs shall detain the suspected
infringing goods, notify the holder of the intellectual property
right in writing of such detention and serve a Customs Detention
Receipt on the consignee or consignor. The Customs shall not
detain the goods where the holder of the intellectual property
right fails to present an application or to provide a security
within the period.
Article 17 With consent of the Customs, the holder
of an intellectual property right and the consignor or consignee
may inspect the relevant goods.
Article 18 Where believing that his goods have not
infringed the right of the holder of an intellectual property
right, the consignee or consignor shall present a written
explanation to the Customs as well as the relevant evidence.
Article 19 Where believing that his import or export
goods have not infringed a patent, the consignee or consignor of
the goods suspected of infringing the patent may request the
Customs to release the goods after providing the Customs with a
security equivalent to the value of such goods. The Customs
shall refund the security where the holder of the intellectual
property right fails to file a lawsuit before the people's court
within a reasonable period of time.
Article 20 Where the holder of an intellectual
property right requests the Customs to detain the suspected
infringing goods after the Customs discovers the import or
export goods suspected of infringing the recorded intellectual
property right and notifies the holder of the intellectual
property right of such suspected infringement, the Customs shall
carry out an investigation and make, within 30 working days from
the date of detention, a determination as to whether the
suspected infringing goods under detention have infringed the
intellectual property right; where the determination cannot be
made, the Customs shall immediately notify the holder of the
intellectual property right in writing.
Article 21 Where the Customs, when carrying out an
investigation on the suspected infringing goods which have been
detained, requests any assistance from the competent
intellectual property authority, the relevant competent
intellectual property authority shall provide such assistance.
Where the competent intellectual property authority, when
handling a case of infringement involving import or export
goods, requests any assistance from the Customs, the Customs
shall provide such assistance.
Article 22 When the Customs carries out an
investigation on the suspected infringing goods under detention
and other details of the case, both the holder of the
intellectual property right and the consignee or consignor shall
provide cooperation.
Article 23 After presenting an application to the
Customs for taking protective measures, the holder of an
intellectual property right may, in accordance with the
provisions of the Trademark Law of the People’s Republic of
China, the Copyright Law of the People’s Republic of China, or
the Patent Law of the People’s Republic of China, apply to the
people’s court for the adoption of measures to order the cease
of the infringing act or for preservation of property against
the suspected infringing goods under detention before filing a
lawsuit.
Where receiving a notification from the people’s court for
assistance in execution of an order to cease an infringing act
or for preservation of property, the Customs shall provide
assistance.
Article 24 The Customs shall release the detained
suspected infringing goods under any of the following
circumstances:
(1) where, after detaining the suspected infringing goods in
accordance with the provisions of Article 15 of these
Regulations, the Customs has not received any notification from
the people’s court for assistance in execution of an order
within 20 working days from the date of the detention;
(2) where, after detaining the suspected infringing goods in
accordance with the provisions of Article 16 of these
Regulations, the Customs has not received any notification from
the people’s court for assistance in execution of an order and
cannot determine through investigation that the suspected
infringing goods under detention have infringed the intellectual
property right within 50 working days from the date of the
detention;
(3) where the consignee or consignor of the goods suspected
of infringing a patent requests the Customs to release his goods
after providing the Customs with a security equivalent to the
value of such goods;
(4) where the Customs is convinced that the consignee or
consignor possesses ample evidence proving that his goods have
not infringed the right of the holder of the intellectual
property right.
Article 25 Where the Customs detains the suspected
infringing goods in accordance with the provisions of these
Regulations, the holder of an intellectual property right shall
make the payment of the relevant expenses for warehousing,
maintenance and disposal of the goods. Where the holder of the
intellectual property right fails to make such payment, the
Customs may deduct it from the security he provided to the
Customs or require the guarantor to perform the relevant duty of
guarantee.
Where the suspected infringing goods are determined to have
infringed an intellectual property right, the holder of the
intellectual property right may claim the paid expenses for
warehousing, maintenance and disposal as reasonable expenses
incurred in halting the infringement.
Article 26 Where discovering any suspected criminal
offence in providing protection for intellectual property
rights, the Customs shall hand the case over to the public
security authorities for handling according to law.
Chapter IV Legal Liability
Article 27 The suspected infringing goods under
detention shall be confiscated by the Customs where such goods
are determined to have infringed an intellectual property right
by the Customs after investigation.
After confiscating the goods infringing an intellectual
property right, the Customs shall notify the holder of the
intellectual property right in writing of the information
related to the goods of infringement.
Where the confiscated goods infringing an intellectual
property right can be used for public welfare undertakings, the
Customs shall hand such goods over to the relevant public
welfare bodies for use in public welfare undertakings; where the
holder of the intellectual property right intends to purchase
the goods, the Customs may have such goods assigned to the
holder of the intellectual property right with compensation.
Where the confiscated goods infringing an intellectual property
right cannot be used for public welfare undertakings or the
holder of the intellectual property right has no intention to
purchase the goods, the Customs may have such goods auctioned
according to law after removing their infringing features; where
the infringing features cannot be removed, the Customs shall
destroy the goods.
Article 28 The articles carried on person, or
posted, into or out of the territory shall be confiscated by the
Customs if the quantity of such articles exceeds the reasonable
limit for personal use and such articles have infringed any
intellectual property right provided for by Article 2 of these
Regulations.
Article 29 Where the Customs, after accepting an
application for recording an intellectual property right or for
adopting protective measures for an intellectual property right,
fails to discover the infringing goods or to adopt timely
protective measures, or adopts protective measures
ineffectively, due to the failure on the part of the holder of
the intellectual property right to provide exact information,
the holder of the intellectual property right shall take full
responsibility for the consequences.
Where the holder of an intellectual property right requests
the Customs to detain the suspected infringing goods, the
Customs cannot determine that the detained suspected infringing
goods have infringed his intellectual property right or the
people’s court adjudicates that there is no infringement of his
intellectual property right, the holder of the intellectual
property right shall bear liability for compensation according
to law.
Article 30 Where the importation or exportation of
goods infringing an intellectual property right constitutes a
crime, criminal liability shall be investigated according to
law.
Article 31 Any Customs officer who neglects his
duty, abuses powers, or commits illegalities for personal gains
or by fraudulent means in providing protection for intellectual
property rights shall be investigated for criminal liability
according to law if a crime is constituted; if the act has not
constituted a crime, an administrative sanction shall be imposed
according to law.
Chapter V Supplementary Provisions
Article 32 Where recording an intellectual property
right with the General Administration of Customs, the holder of
the intellectual property right shall pay a recordation fee in
accordance with relevant provisions of the State.
Article 33 These Regulations shall be effective as
of March 1, 2004. The Regulations 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
repealed simultaneously |
