Brief Introduction on IPR Protection by Chinese Customs

By Mr. Sun Jin(Marlow)

 

If we (holders of IPR, intellectual property right) want to protect our lawful rights and interests in the import or export link of China and prevent impact to the market bringing by counterfeit or other infringing products to protect our reputation, we can make full use of China’s customs IPR protection as our legal weapons. The following is a brief introduction of China’s customs IPR protection:

1. Laws of China’s customs IPR protection
Since implementation of China’s customs IPR protection in September 1994, it has made significant achievements. The State Council of PRC issued Regulation on the customs protection of IPR on July 5th, 1995, which was revised in 2003 and 2010 respectively; the 2010 revised edition of Regulation of PRC on the customs protection of IPR and the 2000 revised edition of Customs Law of PRC have basically constituted the legal system for IPR customs protection.

2. Scope of IPR for customs protection
(1)Trademarks approved and registered by The State Administration for Industry and Commerce Trade Bureau;
(2)International registration of trademarks registered in the world intellectual property organization, which has been extended to China;
(3) Patent rights for invention, industrial designs and utility model patents granted by The State Intellectual Property Office (including the original China Patent Office);
(4) Copyrights and related rights owned by citizens or organizations of countries who take part in Berne Convention for the Protection of Literary and Artistic Works.
In accordance with the “Regulations on the Protection of Olympic Symbols” and the “Regulations on the Protection of EXPO Symbols”, the IPR protected by the Chinese Customs also include the exclusive rights to use the Olympic symbols and EXPO symbols.

3. Basic procedure of China’s Customs IPR Production：
China’s customs protection of IPR can be divided into two modes——“active protection” and “passive protection”. Active protection refers that the customs take initiative to take measures to protect IPR in accordance with the power conferred by law; passive protection refers that the when owners of IPR request customs to implement protection of IPR, the Customs will provide protection for IPR according to the request.

3.1 Active Protection:
After the holder of IPR applying for recordation (which needs to submit 800RMB) with the General Administration of Customs of his IPR, and the recordation being granted, where discovering any import or export goods suspected of infringing IPR under Customs recordation, the Customs shall immediately notify the holder of IPR. If holder of IPR fails to present an application or provide a security within certain period, the customs shall release the goods. If holder of IPR presents an application and provides a security according to regulations, the Customs shall carry out an investigation that whether the goods are infringing within 30 working days from the date of detention; if the suspected goods are infringing, the goods shall be confiscated by the Customs. And if the Customs can’t decide whether the goods are infringing, the Customs shall immediately notify the holder of IPR in writing, in this situation, if the Customs received notification from the people’s court for assistance in execution of an order within 50 working days from the date of the detention, the Customs will assist the court for execution; if not, the Customs shall release the detained suspected infringing goods.

3.2 Passive Protection:
Where discovering the suspected infringing goods pending importation or exportation, the holder of IPR is entitled to present an application with the Customs at the port of entry or exit and provide to the Customs a security for detaining such goods. After Customs detaining the suspected infringing goods according to application of holder of IPR, the Customs shall immediately notify the holder of IPR, consignee and consignor. If the Customs has received notification from the people’s court for assistance in execution of an order to cease an infringing act or for preservation of property within 20 days from the date of the detention, the Customs shall assist the court for execution; otherwise, the Customs shall release the detained suspected infringing goods.