CUSTOMS

Brief Introduction of Customs' Intellectual Property (IP) Protection

  In order to sustain the normal international trade order, strengthen the protection to intellectual property and promote the healthy economic developments, the State Council of China promulgated the "Customs' Protection Regulations of the People's Republic of China" on July 5, 1995 (hereinafter called "the Regulations"), the Regulations became effective on October 1, 1995. On September 28, 1995, the State Customs' Office of China promulgated "the Implementing Rules of the Customs' Protection Regulations of the People's Republic of China" (hereinafter called "the Rules"), the Rules also became effective on October 1, 1995. The State Council amended the Regulations and promulgated it on November 26, 2003,it became effective on March 1, 2004. One April 22, 2004, the State Customs Office of China also amended and promulgated the Rules, which became effective on July 1, 2004.

  The Customs IP Protection adopts the principle of voluntary request, IP owner wishing to obtain customs IP protection can and should first request for IP rights deposit at the State Customs Office, deposit is the important pre-condition for the Customs to carry out the protection.

  Anyone who deposited its IP rights at the State Customs Office and obtained the certificates, when finding suspicious goods imported or exported, can request the Customs Office at the local place of importation or exportation to take measures to protect its IP rights, the Customs Office will review the request made by the IP owner to decide whether protection measure should be made or not.


The scope of Customs IP Protection

  The scope of Customs IP protection in China is decided by the following two conditions:

  1. Only relates to goods imported or exported. In accordance with Article 3 of the Regulations and international customs, the objects of protection measure of the Chinese Customs are only limited to goods imported or exported. For goods transited through China, passing China, since the sender, receiver or the place of sending or receiving is outside China, the Chinese Customs normally do not take measures.

  2. Only limited to issued patents, registered trademarks and copyrights voluntarily registered in China. The scope of Customs protection is not identical to the scope of IP rights protected under the Chinese laws and administrative regulations, for example, trade names, trade secrets and geographic marks protected by the "Countering Unfair Competition Law of the People's Republic of China" are not the subjects of Customs IP protection.


Request for Deposit of Customs IP Protection

  Request for deposit of Customs IP protection should be filed by the IP right owner or its/his agent (Stately called as "applicant") at the State Customs Office of China. When the IP right owner does not have business place or operating office inside China, it/he should request for deposit through a Chinese agent. When one of the co-owners of an IP right requests the deposit, the other co-owners have no need to file further deposits.

  An IP right owner needs to submit the following documents for Customs' IP protection:

  1. an Application Form for Customs' IP Protection.

  2. a Power of attorney, executed by the IP right owner, we need original copy.

  3. Copy of corporate business license, or copy of individual identification certificate, both to be notarized and authenticated.

  4. Relevant intellectual property certificate, e.g., copy of patent certificate, certified copy of patent registry, copy of trademark certificate, certified copy of trademark registry, certified copy of copyright registry, etc. 

  5. Copy of license agreement (Chinese version, if in a foreign language). 

  6. Specification and photos of relevant goods; preferably colored photos of goods and its package in size of 5 inch (12.5 cm x 9.5 cm). Where various kinds of goods are involved, the photos thereof can be put onto supplementary sheets. 

  7. Other documents that may be deemed requisite by the Chinese State Customs Administration.


Request for Customs' Protection Measure

  Once the owner of the Customs' deposited intellectual property discovers suspected infringing goods are to enter/leave the country, it/he can apply to the local Customs where the entry/exit of the suspected infringing goods is to take place to take protective measures for the intellectual property concerned. While applying to the Customs to take protective measures for the intellectual property concerned, the following supporting materials are to be supplied: 

  1. Application Form for Customs' Protection Measure.

  2. Power of attorney, executed by the owner, original copy. 

  3. Goods in kind, photos and other supporting materials re the suspected infringement.

  4. Deposit Certificate and identification documents of the intellectual property owner.

  5. Where the intellectual property owner requests the Customs to detain the suspected infringing goods, a bond equal to the CIF price of the goods to be imported or the FOB price of the goods to be exported shall be provided; where the CIF/FOB price can not be ascertained, the Customs Office will make an estimate thereof.

The intellectual property owner may file an application with the Customs to withdraw its request for taking protective measures; however, said application shall be made in writing and filed with the Customs before the Customs has made the decision to detain the suspected infringing goods.


Notes: 

  1. Where the Customs has made a decision to detain the suspected infringing goods, a detainment notice will be issued respectively to the goods receiver/dispatcher and the intellectual property owner. Where the goods receiver/dispatcher deems that its imported/exported goods do not constitute any infringement, written opposition shall be submitted to the Customs within 7 days from receipt of said detainment notice. Where no opposition is raised, the Customs, after due investigation, has the authority to take the detained suspected infringing goods as factual infringing goods. Where opposition is raised, the Customs shall immediately notify the intellectual property owner. 

  2. The intellectual property owner shall, within 15 days from the receipt of the above notice, submit the infringement dispute to the relevant intellectual property administrative authority or institute legal proceedings at the court, and, at the same time, notify in writing, with copies of the documents attached thereto, the Customs. 

  3. The detained suspected infringing goods, on being determined by the Customs, the relevant intellectual property administrative authority/the court to be infringing goods, shall be expropriated by the Customs.


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