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.
Tags: Trade, Administration, china customsRelated Posts:
Regulation of the Peoples Republic of China on the Customs Protection of Intellectual Property Rights
November 21, 2009
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 refers to 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 intellectual property rights.
The customs shall, according to relevant laws and the present Regulation, practice protection of intellectual property rights, and execute the relevant powers provided for in the Customs Law of the People’s Republic of China.
Article 4 Where an intellectual property rights holder requests the customs to practice protection of his intellectual property rights, he shall file an application 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, according to the provisions of the State, truthfully declare to the customs the status of his intellectual property rights in relation to the imported or exported goods, and shall submit relevant certification documents.
Article 6 When practicing protection of intellectual property rights, the customs shall keep the commercial secrets of the relevant parties.
Chapter II Archival Filing of Intellectual Property Rights
Article 7 An intellectual property rights holder may, in pursuance of the present Regulation, file an application to the Customs General Administration for archival filing of his intellectual property rights; when applying for archival filing, he shall submit an application letter, which shall cover the following contents:
(1) The intellectual property rights holder’s name, and his place of registration or his nationality, etc.;
(2) The name and contents of as well as the relevant information on the intellectual property;
(3) The status of permission to exercise the intellectual property;
(4) The name and place of origin of the goods for which the intellectual property rights holder lawfully exercises the intellectual property, the customs of entry or exit, the importer and exporter, the main features and the price, etc. of such goods;
(5) The manufacturer, importer and exporter of the goods which are known to have infringed the intellectual property, the customs of entry or exit, the importer and exporter, the main features and the price, etc. of such goods.
The intellectual property rights holder shall attach certification documents, if any, contained in the contents of the application letter in the preceding paragraph.
Article 8 The Customs General Administration shall, within 30 working days as of day it receives all the application documents, make a decision on whether or not to permit the archival filing, and notify the applicant in writing; if it does not permit the archival filing, it shall explain the reason thereof.
In the case of any of the following circumstances, the Customs General Administration shall not permit the archival filing:
(1) The application documents are incomplete or null and void;
(2) The applicant is not the intellectual property rights holder;
(3) The intellectual property is no longer protected by laws or administrative regulations.
Article 9 Where the customs finds that an intellectual property rights holder who applies for archival filing for his intellectual property rights does not truthfully provide the relevant information or documents, the Customs General Administration may cancel the archival filing therof.
Article 10 The archival filing of customs protection of an intellectual property right shall become valid as of the day when the Customs General Administration permits the archival filing, with 10 years of validity period .
Where an intellectual property right is valid, the right holder may, within 6 months prior to the expiry of the validity period for the archival filing of customs protection of the intellectual property rights, apply to the Customs General Administration for renewal of the archival filing. The validity period for the renewed archival filing of each time shall be 10 years.
Where an intellectual property right holder does not apply for renewal at the expiry of the validity period for archival filing of the customs protection of the intellectual property rights, or the intellectual property right is no longer protected by laws or administrative regulations, the aforesaid archival filing shall be invalidated immediately.
Article 11 Where an archived intellectual property is changed in any way, the intellectual property rights holder shall, within 30 working days as of such change, modify or nullify the archival filing in the Customs General Administration.
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 submit 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 certification documents, and provide evidence sufficient to prove the obvious existence of the infringement facts as well.
An application letter shall cover the following main contents:
(1) The intellectual property rights 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 thereof, and so on.
Where the suspected infringing goods are suspected to infringe 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 because of inappropriate application, and to pay the warehousing, custody and disposal fees, etc. after the goods are detained by the customs; in case the intellectual property rights holder directly pays warehousing or custody fees to the warehouseman, such fees shall be deducted from the guaranty. The detailed measures shall be formulated by the Customs General Administration.
Article 15 Where an intellectual property right holder who files an application for detainment of any suspected infringing goods conforms to Article 13 of the present Regulation, and has provided a guaranty as prescribed in Article 14 of the present Regulation, the customs shall detain the suspected infringing goods, notify the intellectual property rights holder in writing, and serve the customs detainment list to the consignee or consigner.
Where an intellectual property right holder who files an application for detainment of any suspected infringing goods does not conform to Article 13 of the present Regulation, or fails to provide a guaranty as prescribed in Article 14 of the present Regulation, the customs shall reject the application, and notify the intellectual property rights holder in writing.
Article 16 Where the customs finds that any imported or exported goods are suspected to have infringed an archived intellectual property, it shall immediately notify the intellectual property rights holder in writing. In case the intellectual property rights holder submits an application according to Article 13 of the present Regulation and provides a guaranty according to 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 rights holder in writing, and serve the customs detainment list to the consignee or consigner. In case the intellectual property rights 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 the intellectual property rights 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 patented goods regards that his imported or exported goods do not infringe the patent right, he 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 rights holder fails to lodge 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 an archived intellectual property, and has notified the intellectual property rights holder, while the intellectual property rights 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 the intellectual property; if the aforesaid goods are unable to be ascertained, the customs shall immediately notify the intellectual property rights holder in writing.
Article 21 Where the customs investigates into the detained suspected infringing goods, and requests the competent administration of intellectual property rights to provide assistance, the relevant competent administration of intellectual property rights shall provide assistance.
Where, when handling an infringement case of imported or exported goods, the competent 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 rights holder, and the consignee or consigner shall provide cooperation.
Article 23 An intellectual property right holder may, after submitting an application to the customs for taking protection measures, file an application according to 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 to the people’s court before lodging a lawsuit for taking the measure of ordering to stop the infringing acts or taking property preservation with regard to the detained suspected infringing goods.
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 case of any of the following circumstances, the customs shall release the detained suspected infringing goods:
(1) The customs detains the suspected infringing goods according to 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 according to 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 any intellectual property rights;
(3) The consignee or consigner of the goods which are suspected to have infringed a patent right, after providing the customs with a guaranty bond of equivalent value to that of the goods, requests 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 the intellectual property rights of the right holder.
Article 25 Where the customs detains any suspected infringing goods according to the present Regulation, the intellectual property rights holder shall pay relevant warehousing, custody and disposal fees, etc. In case the intellectual property rights holder has not paid the relevant fees, the customs may deduct them from the guaranty bond provided to customs, or requests the guarantor to perform the relevant guaranty responsibilities.
Where the suspected infringing goods are regarded to have infringed an intellectual property, the intellectual property rights holder may calculate the relevant warehousing, custody and disposal fees, etc. that 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.
Chapter IV Legal Liabilities
Article 27 Where any detained suspected infringing goods are ascertained to have infringed an intellectual property rights after the investigation of the customs, they shall be confiscated by the customs.
The customs shall, after confiscating the goods infringing an intellectual property rights, inform the intellectual property rights holder in writing of the relevant information on the aforesaid goods.
Where the confiscated goods infringing an intellectual property are used for the commonweal undertaking, the customs shall deliver them to the relevant commonweal institutions for the purposes of commonweal undertaking; if the intellectual property rights holder has the intent of purchase, the customs may transfer the goods to the intellectual property rights holder non-gratuitously. In case the confiscated goods infringing an intellectual property right are unable to be used for the commonweal undertaking and the intellectual property rights holder has no intent of purchase, the customs may lawfully auction them after the infringement features have been eliminated; and in case the infringement features are unable to be eliminated, the customs shall destroy such goods.
Article 28 Where an individual brings or mails articles of entry or exit by exceeding the quantity for self-use or the reasonable quantity, and infringes an intellectual property rights prescribed in Article 2 of the present Regulation, the customs shall confiscate such articles.
Article 29 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 in time take protection measures or takes poor protection measures because of the fact that the intellectual property rights holder fails to provide exact information, the intellectual property rights holder shall undertake the liabilities by itself.
Where, after the intellectual property rights holder requests the customs to detain the suspected infringing goods, the customs is unable to ascertain that the detained suspected infringing goods have infringed the intellectual property rights of the right holder, or the people’s court rules that the said goods have not infringed the intellectual property rights of the right holder, the right holder shall undertake the indemnity liabilities in accordance with the law.
Article 30 Where, when importing or exporting any goods infringing an intellectual property rights, a crime is constituted, the offenders shall be subject to criminal liabilities in accordance with the law.
Article 31 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.
Chapter V Supplementary Provisions
Article 32 Where an intellectual property rights holder has his intellectual property rights archived in the Customs General Administration, he shall pay the archival filing fee according to the relevant provisions of the State.
Article 33 The present Regulation shall be implemented on March 1st, 2004. The Regulation of the People’s Republic of China on Customs Protection of Intellectual Property Rights promulgated by the State Council on July 5th, 1995 shall be abolished simultaneously.
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Regulations of the People’s Republic of China for Customs Check
August 23, 2009
CHAPTER I GENERAL PROVISIONS
CHAPTER II MANAGEMENT OF RELEVANT MATERIALS
CHAPTER III IMPLEMENTATION OF CUSTOMS CHECKS
CHAPTER IV DISPOSAL OF RESULTS OF CUSTOMS CHECKS
CHAPTER V LEGAL RESPONSIBILITIES
CHAPTER VI SUPPLEMENTARY RULES
Article 1 These Regulations are hereby formulated with a view of establishing and perfecting the Customs check system and strengthening Customs supervision and control so as to maintain a normal import and export order, protect the legetimate rights and interests of parties concerned, guarantee national tax revenue, and promote the development of foreign trade.
Article 2 For the purpose of theses Regulations, the term “Customs check” means the check made by the Customs within three years from the date when import and export goods are passed or within the Customs supervision and control period of bonded goods or imported goods with deducted or exempted duties of the account books, vouchers, Customs declaration documents and other relevant materials (hereinafter referred to as relevant materials) and the relevant import and export goods of the unit covered in the check to supervise and control the authenticity and legality of the import and export activities of the said Unit.
Article 3 The Customs shall carry out check on the following enterprises and units directly related to import and export activities:
(1) Enterprises and units engaged in foreign trade.
(2) Enterprises engaged in processing trade.
(3) Enterprises engaged in bonded business.
(4) Enterprises and units utilizing or handling imported goods with decucted duties or with duties exempted.
(5) Enterprises engaged in Customs declaration.
(6) Other enterprises and units engaged in businesses directly related to import and export activities set by the General Administration of Customs.
Article 4 When carrying out checks, the Customs and its staff shall be objective, impartial, practical and realistic, honest and clean; keep commercial secrets of the units under check, and refrain themselves from infringing upon the legetimate rights and interests of the units under check.
CHAPTER II MANAGEMENT OF RELEVANT MATERIALS
Article 5 Activities related to import and export businesses shall be authentically, correctly and completely recorded in and reflected by account books, vouchers, accounting reports and other accounting materials established and worked out by the enterprises and units directly related to import and export activities.
Article 6 The enterprises and units directly related to import and export activities shall keep the account books, vouchers, accounting reports and other accounting materials in accordance with the time limits prescribed in relevant laws and regulations for keeping them. The Customs declaration documents, and documents for import and export and other materials directly related to import and export businesses shall be kept for a period of three years as from the date when the import/export goods are released.
Article 7 If enterprises and units directly related to import and export activities have a perfect accounting system and their book keeping and business accounting can be carried out by computers, their accounting records stored in and printed from the computers shall be treated as accounting materials and printed out as written records for keeping in accordance with these Regulations.
Article 8 Enterprises and units directly related to import and export activities shall, according to Customs requirements, submit materials concerning the purchase, marketing, processing, utilizing, loss and inventory of import and export goods.
CHAPTER III IMPLEMENTATION OF CUSTOMS CHECKS
Article 9 The Customs shall set focal points of Customs checks and draw up annual plans for Customs checks according to the requirements of Customs supervision and control and the specific situation of import and export enterprises and units as well as import and export goods.
Article 10 When carrying checks, the Customs shall, three days before the start of the checks, notify the enterprises and units to be checked (hereinafter referred to as the units for check) in written form. Under special circumstances and with the approval of the Director General of the Customs, the Customs can carry out checks without prior notice.
Article 11 When the Customs implements checks, a check panel shall be formed. The check panel shall consist of two persons at least.
Article 12 When carrying out checks, Customs officers shall show their Customs Check Certificates.
The Customs Check Certificates shall be produced and issued by the General Administration of Customs in a unified way.
Customs offiers who have a direct link with the unit being checked shall not take part in the check of these units.
Article 14 The Customs can exercise the following power when carrying out checks:
(1) To consult and copy relevant material.
(2) To enter the production and operation areas and storage areas of the units being checked to inspect the production and operation situation and the goods related to import and export activities.
(3) To inquire into situations and matters related to import and export activities with the legal representative, the person in charge and other related personnel of the units being checked.
(4) To inquire about the deposit accounts in commercial banks or other financial institutions of the units being checked with the approval of the Director General of the Customs.
Article 15 Should the Customs discover during conduction of checks that the relevant materials are possibly transferred, concealled, distorted or scrapped by the units being checked, it can seal and keep the relevant materials temporarily with the approval of the Director General of the Customs. This measure shall by no means hamper the normal production and operation activities of the units being checked.
After the Customs ascertains the facts of the matters concerned or obtains the evidence, it shall release the seal of the relevant materials immediately.
Article 16 Should the Customs discover while conducting checks that the import and export goods of the units being checked are suspecious of breaking the Customs Law and other relevant laws and regulations, it can seal and keep the relevant import and export goods.
Article 17 The units being checked shall cooperate with the Customs during its conduction of checks and provide necessary working conditions for the Customs.
Article 18 The units being checked shall accept Customs checks, make true reports to the Customs, and provide the relevant materials without refusal, delay or concealment.
In the case of book keeping by computers, the units being checked shall provide the Customs with softwares for book keeping, user’s guide and relevant materials.
Article 19 When the Customs consults or copies the relevant materials of the units being checked or enters their production and operation areas or storage areas to make inspections, the legal representative or the chief leader or their authorized representatives shall be present to check account books, open storage areas, move goods or untie packings at the request of the Customs.
Article 20 During Customs checks, enterprises and units that have financial contacts or other business relations with the units being checked shall faithfully report relevant matters of the units being checked to the Customs and provide the Customs with relevant materials and evidences.
Article 21 After conduction of checks, the Customs Check Panel shall submit a check report to the Customs. Comments of the units being checked shall be solicited before the check report is submitted to the Customs. The units being checked shall, within 7 days as from the date when it receives the check report, and hand over its comments in written form to the Customs.
Article 22 The Customs shall, within 30 days as from the date when it receives the check reports, make decisions on the checks and send these decisions to the units being checked.
CHAPTER IV DISPOSAL OF RESULTS OF CUSTOMS CHECKS
Article 23 If customs duties or other import taxes are discovered to be paid insufficiently or evaded, the Customs shall collect these duties or taxes according to stipulations in the Customs Law and other laws and regulations concerning taxation. Where the taxes are insufficiently paid or evaded due to infringement on stipulations on the part of the units being checked, the Customs shall impose taxes according to the Customs Law and other laws and regulations concerning taxation.
Units being checked that fail to pay taxes retrospectively within the period set by the Customs shall be subject to mandatory measures taken by the Customs according to the first clause of Article 37 of the Customs Law.
Article 24 The import and export goods sealed off or seized according to Article 16 of these Regulations shall be released immediately when suspicion of law infringement is ruled out through Customs checks. If these goods are proved to be illegal through Customs checks, the Customs shall deal with the units being checked according to the Customs Law and the Regulations for Imposing Administrative Penalities Under the Customs Law.
Article 25 Units being checked shall be sanctioned by the Customs in accordance with the Customs Law and the Regulations for Imposing Administrative Penalties Under the Customs Law should they be found during Customs checks to have broken Customs supervision and control rules.
Article 26 The units being checked that are discovered during Customs checks to have been engaged in smuggling and thereby committing crimes shall be subject to criminal prosecution pursuant to law. Smuggling cases that are not serious enough to become criminal shall be handled in accordance with the Customs Law and the Regulations for Imposing Administrative Penalties Under the Customs Law.
Article 27 The taxes that are levied or collected retrospectively, the smuggled goods and illegal revenues that are consficated, and the fines that are imposed by the Customs during Customs checks shall be turned into the state coffers.
Article 28 Disputes concerning tax payment that may arise between the units being checked and the Customs shall be settled according to Article 46 of the Customs Law.
CHAPTER V LEGAL RESPONSIBILITIES
Article 29 The units being checked out shall be fined by the Customs for a sum between 10,000 yuan and 30,000 yuan if they conduct one of the following acts and fail to make corrections with the prescribed time limits, or be deprived of qualification for Customs declaration if their cases are serious enough, with their chief leaders and other persons immediately involved being fined a sum between 1,000 and 5,000 yuan:
(1) Providing the Customs with false information or concealing important facts.
(2) Refusing or delaying supply of relevant materials.
(3) Transferring, concealing, distorting or scrapping the relevant materials.
Article 30 If the units being checked have not set up or worked out the relevant materials, the Customs shall order them to make up within prescribed time limits. Failure to obey shall lead to fines ranging 10,000 and 50,000 yuan. Units involved in serious cases shall also be deprived of Customs declaration qualifications, and their leaders and other persons directly responsible shall be subject to fines ranging between 1,000 and 5,000 yuan.
Article 31 Customs staff who neglect their duties, engage in malpractices or irregularities, abuse their power, or receive or extort properties from the units being checked during performance of duties and consequently commit criminal offenses shall be subject to criminal prosecutions persuant to law. Those involved in cases not so serious as to be criminal shall be handled administratively.
CHAPTER VI SUPPLEMENTARY RULES
Article 32 These Regulations shall be implemented by the General Administration of Customs.
Article 33 These Regulations shall enter into force from the date of promulgation.
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Protection Recordation for IPR in China Customs
June 16, 2009
In respect of the necessity of customs protective recordation of IPR, a relevant official from General Administration of Customs (GAC) explained that it is positive protection, not of insignificance.
The official said that customs protection of IPR consists of positive protection and passive protection, while customs protective recordation of IPR is a precondition of positive protection, which means if the IPR is recorded in GAC, customs will find out the suspected infringing goods during imports and exports and inform IPR holders in time.
According to statistics from GAC, over 90% infringing goods are seized by inspectors in daily supervision on imported and exported goods.
Recordation is an important weapon against the fake and can help customs execute active protection, find out infringing goods and contact with IPR holders in time.
In addition, recordation can reduce infringing acts. The publicity of information of IPR recordation can warn and frighten the enterprises engaged in unscrupulous import and export of infringing goods.
Laws do not require the holder of intellectual property right to apply for recordation of his intellectual property rights before he applies to the General Administration of Customs for protection; an intellectual property right holder may request the customs to detain the goods suspected of infringement without recordation of his intellectual property rights. But in practice it will have different influences whether there is recordation or not. The main purposes of recordation are as follows:
It is the precondition of the customs’ active protection. According to Regulation of the People’s Republic of China on the Customs Protection of Intellectual Property Rights, where the customs find that any suspected infringing goods are to be imported or exported, they do not have the rights to stop the entry or exit of such goods if the intellectual property right holder does not apply for recordation. It is especially important for the trademark and copyright’s protection;
It is helpful for the customs to find the infringing goods. Although, after the recordation, where the holder of intellectual property right finds that suspected infringing goods are to be imported or exported, he still needs to file an application to the customs for protection in accordance with Regulation of the People’s Republic of China on the Customs Protection of Intellectual Property Rights. But in practice whether the customs can find the infringing goods or not depends on the customs’ checking on such goods. It is possible for the customs to actively detain the goods suspected of infringement during the daily control process, because where the holder of intellectual property right applies for archival filing, he needs to provide documents of the legal status of the intellectual property right, the right holder’s contact details, legal use of intellectual property rights and related pictures and photos. So the legal rights and interests of the right holders can be protected in time because of the recordation.
It lightens the economic burden of the holder of intellectual property right. In accordance with Regulation of the People’s Republic of China on the Customs Protection of Intellectual Property Rights and the intellectual property right holder shall provide a security of not more than 100 thousand yuan to the customs under the framework of protection of China Customs. If the holder of intellectual property right does not apply for recordation, he shall not be treated as above, and provide the customs with a security equivalent to the value of the detained goods;
It acts as a warning to the infringer. Because the customs shall confiscate the infringing goods and impose the administrative sanctions on the import and export firms, the recordation may warn and frighten the firms which unscrupulously import and export the infringing goods, and impel them to consciously respect the related intellectual property rights. Moreover, those non-vicious firms which import infringing goods may know whether or not the processed and exported goods infringe the legal rights by recordation.
The applicant for IPR protection recordation in General Administration of Customs should be in conformity to the following provisions when filling in the recordation application:
1. Application for trademark right protection
The applicant should be consistent with the trademark registrant written on the Registered Trademark Certificate. If the name of the trademark registrant has been altered, the applicant should be consistent with that on the Trademark Registration Proof. If the Chinese name of the applicant is not consistent with that on the Registered Trademark Certificate, while his foreign name is consistent with that on the Registered Trademark Certificate, it can be regarded as in conformity with the provision.
2. Application for patent right protection
The applicant should be consistent with the patent holder written on the Patent Certificate. If the period between the date of issuing Patent Certificate and the date of protection application exceeds one year, or the name of the patent holder has been altered, the applicant should be consistent with that on the Patent Registration Counterpart.
3. Application for copyright protection
The applicant should be consistent with the copyright holder on the Volunteer Registration Certificate. If there is no volunteer registration, the applicant should be consistent with that on other related copyright proofs. If the copyright is registered abroad, the foreign name of the applicant should be consistent with that on the Registration Certificate issued by the foreign copyright registration administration.
4. If the right holder consigns the application to an agent, the agent may apply in his own name.
The holder of intellectual property right shall attach the following documents and evidence when he presents the application for recordation to the General Administration of Customs:
(1)A photocopy of personal identification document, or business license or other documents which identifies the holder of intellectual property right;
(2)A photocopy of the Trademark Registration Certificate issued by the Trademark Office of the State Council’s industry and commerce authority, the documents confirming trademark registration issued by the Trademark Office of the State Council’s industry and commerce authority shall be presented in addition where the applicant has been permitted to change, renew, transfer the trademark registration or apply for recordation of an International Registered Trademark;
A photocopy of the certificate of voluntary copyright registration issued by the copyright registration authority, or the photographs of the works confirmed by the copyright registration authority. Where the applicant has not carried out the procedures for voluntary copyright registration of his works, a sample of his works or other evidence which can prove his ownership of the copyright shall be presented;
A photocopy of the patent certificate issued by the State Council’s patent authority. Where the grant of patent has been announced more than one year, a duplicate of the patent register issued, within six months prior to the application for recordation, by the State Council’s patent authority. Where applying for the recordation of an utility model or a design, a photocopy of search report of the utility model or a photocopy of announcement of design issued by the State Council’s patent authority shall also be presented;
(3)A photocopy of a contract of license shall be presented where the holder of intellectual property right has licensed other parties to use a registered trademark, a work or a patent and a contract of license has been reached. Where no written license has been reached, a document explaining the details of scope, term of the license, etc. shall be presented;
(4)The photographs of goods and their package on which the holder of intellectual property right lawfully exercised his rights;
(5)The evidence of the known import or export of infringing goods; Where any infringement dispute between the holder of intellectual property right and other party has been settled by a People’s Court or by the competent intellectual property right authority, a photocopy of the relevant legal document shall also be presented; and
(6)Any other documents or evidence that the General Administration of Customs considers necessary to present.
The documents and evidence presented by the holder of intellectual property right to the General Administration of Customs in accordance with the preceding paragraph shall be complete, truthful and valid. Where the relevant documents and evidence are in a foreign language, they shall be accompanied by a Chinese translation. Where the General Administration of Customs deems necessary, it may require the holder of an intellectual property to present notarization or certification of the relevant documents or evidence.
Application:
In accordance with the provisions of Regulation of Customs Protection of Intellectual Property Rights of, the owner of intellectual property rights, who applies to the customs for protecting his/her intellectual property rights, shall enter his/her intellectual property rights in the record of General Administration of Customs. The owner of intellectual property rights, when applying for the record of customs protection of intellectual property rights, shall fill out Application Form for the Record of Customs Protection of Intellectual Property Rights and submit the written application to General Administration of Customs.
The application form shall include the following contents
(I) The title or name, origin of registration or nationality, address, legal representative and major business place of the owner of intellectual property rights;
(II) Registration number, content of the registered trademark as well as authorization number, content and period of validity of the effective patent, or relevant content of the copyright.
(III) Name and origin of production of goods related to the intellectual property rights;
(IV)The person that is authorized or licensed to use the intellectual property rights;
(V) Relevant information on the main entrance and departure customs, export and import dealer, primary characteristics, normal price of the goods related to the intellectual property rights;
(VI)Relevant information on the manufacturer, export and import dealer, main entrance and departure customs, primary characteristics, normal price of the goods known for violating the intellectual property rights;
(VII)Other information that should be provided as required by General Administration of Customs.
Refer to How to Fill out Application Form for the Record of Customs Protection of Intellectual Property Rights for filling out the application form.
The following documents shall be attached when the written application form is submitted
(I) The copy of Certificate of Identification of the owner of intellectual property rights or the duplicate or the registration department certified copy of Certificate of Registration;
(II) Duplicate of the Certificate of Registration of the registered trademark, announcement of registered trademark transfer approved by Trademark Bureau or the copy of trademark licensing contract on the record; or the copy of Certificate of Patent, duplicate of patent transfer contract registered and announced by Patent Bureau, duplicate of contract for licensing patent implementation; or evidentiary document or evidence of copyright;
(III)Other documents that need to be attached as required by General Administration of Customs.
Within 30 days after receiving all the application documents, General Administration of Customs will notice the applicant as to whether the record will be entered. For the application that is approved to be entered in the record, General Administration of Customs will issue Certificate of Customs Protection of Intellectual Property Rights for the Record; for the application that is not approved to be entered in the record, General Administration of Customs will explain the reason(s). When the application has been approved to be entered in the record, the copyright owner can request entrance and departure customs to take actions to protect his/her intellectual property rights if he/she finds out any goods suspected to violate his/her intellectual property rights is about to enter or exit this country.
Department of General Administration of Customs responsible for customs protection of intellectual property rights: Intellectual Property Office of Policy & Legislation Department
Address: No. 6 Neida Street, Jianguo Gate, Beijing
Postal Code: 100730
FEES:
1. When applying for IPR Customs Protection archival filing to the General Administration of Customs, the IPR right holder should pay an archival filing fee of 800 yuan for each archival filing application.
2. The applicant should transfer the filing fee to the dedicated account for the archival filing fee of the General Administration of Customs through bank. The General Administration of Customs does not accept payment of the archival filing fee by post office remittances, or cash, checks and other forms.
Dedicated account for archival filing fees of IPR Customs Protection by the General Administration of Customs:
Opening Bank: Beijing Wangfujing Branch, Industrial and Commercial Bank of China
Bank number: No. 7, Industrial and Commercial Bank
Account number: 090144070-44
Account name: General Administration of Customs, Dedicated Account for IPR fees
3. The applicant should pay the archival filing fee before application, and attach the copy of bank transfer bill to the application. If no transfer bill copy is attached, the General Administration of Customs would not accept the application.
4. The General Administration of Customs, after the grant of archival filing for IPR customs protection, should issue the receipt of the filing fee to the applicant. If the application is refused, the filing fee should be refunded to the applicant.
5. In the period of validity, if the applicant extend or modify the archival filing, no fee should be charged. If the applicant re-applies IPR archival filing after the invalidation, he should pay the filing fee again.
If the archival filing for IPR customs protection is legally canceled, revoked or otherwise invalid by the General Administration of Customs, the archival filing fees would not be refunded to the applicant.
Source: IPR in China
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