New China Customs Enforcement Regulations of IPR
February 1, 2010
The General Administration of Customs passed several new regulations that aim to strike a balance between Intellectual Propterty Rights holders and those who import and export goods.
Under old regulations, Customs officials were allowed to “dispose” of confiscated counterfeit goods by removing unlawfully affixed trademarks, and auctioning off the goods. These goods commonly reappeared in the market and thus caused monetary harm to the rights owner.
The new regulations now require customs officials to seek the opinion of the relevant IPR owners before it may dispose of any confiscated counterfeit goods. This regulation is a direct attempt to bring China up to the WTO TRIPS agreement standard, which specifically states that sized goods should be disposed of “outside the channels of commerce in such manner as to avoid any harm caused to the right holder, or destroyed” and “the simple removal of the trade mark unlawfully affixed shall not be sufficient.”
While this move is undoubtedly a step in the right direction, it is important to note that the regulation requires customs officials to seek the “opinion” rather than the “consent” of the relevant IPR owner. It thus does not give IPR owners the right to demand the destruction of counterfeit goods rather than the auctioning off of such products.
Another salient feature of these new regulations is that IPR owners will now be able to seek settlements with the infringing party without undergoing a formal customs investigation. It is hoped that this will allow IPR owners to gain valuable information regarding the supply and distribution chains of such counterfeit items while also substantially reducing the resources required of the Customs Department to investigate each and every claim.
The new regulations also contained several smaller modifications such as changes to the notification protocol, the processing of renewal applications, and the cancellation of Customs recordals. All of these modifications are designed to streamline and expedite the customs enforcement process.
Source: SIPO
www.sipo.gov.cn
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New Customs Enforcement Process Regarding IPR
January 31, 2010
The General Administration of China Customs passed several new regulations that aim to strike a balance between IPR holders and those who import and export goods. Under old regulations, China Customs officials were allowed to “dispose” of confiscated counterfeit goods by removing unlawfully affixed trademarks, and auctioning off the goods. These goods commonly reappeared in the market and thus caused monetary harm to the rights owner. The new regulations now require customs officials to seek the opinion of the relevant IPR owners before it may dispose of any confiscated counterfeit goods.
This regulation is a direct attempt to bring China up to the WTO agreement standard, which specifically states that sized goods should be disposed of “outside the channels of commerce in such manner as to avoid any harm caused to the right holder, or destroyed” and “the simple removal of the trade mark unlawfully affixed shall not be sufficient.” While this move is undoubtedly a step in the right direction, it is important to note that the regulation requires Chinese Customs officials to seek the “opinion” rather than the “consent” of the relevant IPR owners. It thus does not give IPR owners the right to demand the destruction of counterfeit goods rather than the auctioning off of such products.
Another salient feature of these new regulations is that IPR owners will now be able to seek settlements with the infringing party without undergoing a formal customs investigation. It is hoped that this will allow IPR owners to gain valuable information regarding the supply and distribution chains of such counterfeit items while also substantially reducing the resources required of the China Customs Department to investigate each and every claim.
The new regulations also contained several smaller modifications such as changes to the notification protocol, the processing of renewal applications, and the cancellation of recordal. All of these modifications are designed to streamline and expedite the customs enforcement process.
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