Regulations of the People's Republic of China on Customs Protection of Intellectual Property Rights
发表时间：2017-09-02 浏览次数：2626
Chapter I General Provisions
Article 1.These Regulations are formulated in accordance with the Customs Law of the People's Republic of China so as to implement Customs protection of intellectual property rights and to promote economic, trade, science, technology and culture exchanges with foreign countries, and to safeguard the public interests.
Article 2.Customs protection of intellectual property rights used in these Regulations refers to protection of the exclusive right to use a trademark, copyright and related rights, and patent right (referred hereinafter as "intellectual property rights") over imported or exported goods that are protected by laws and administrative regulations of the People's Republic of China.
Article 3.The People's Republic of China forbids import or export of goods that infringe intellectual property rights.
Customs shall implement protection of intellectual property rights according to the relevant Chinese laws and provisions in these Regulations, and shall exercise their rights regulated in the Customs Law of the People's Republic of China.
Article 4.Where the owner of intellectual property rights (referred hereinafter as "right owner") asks for Customs protection, he shall file an application for protective measures with Customs.
Article 5.The consignees or consignors and their agents of imported or exported goods shall, in accordance with the related regulations, truthfully declare the status of the intellectual property rights of their goods to Customs and submit relevant certificates.
Article 6.Customs shall keep the trade secrets of the relevant parties confidential when they take actions to protect intellectual property rights.
Chapter II Recordation
Article 7.The right owner may apply for recordal of his intellectual property rights with the Customs General Administration (CGA) according to the provisions of these Regulations. Those applying for the recordal shall submit a written application, which shall include:
(1) the name, registration place or nationality, etc. of the right owner;
(2) the title, content and relevant information of the intellectual property right;
(3) any licensing agreement signed for the intellectual property right;
(4) the name, producing place, the Customs located in importing or exporting place, importer, exporter, principle features, price and other information of the goods in which the right owner exercise their intellectual property right legitimately;
(5) the manufacturer, importer, exporter, the Customs located in importing or exporting place, principle features, price and other information of the goods which have been known to infringe the intellectual property right;
Any certificates should be submitted, if there is any.
Article 8.The CGA shall make a decision whether to record the intellectual property rights within thirty business days from the date of receipt of all the application documents and notify the applicant accordingly in writing. Where the application is rejected, the CGA shall give the reasons.
In any of the following situations, the CGA shall reject the application:
(1) where the application documents are incomplete or invalid;
(2) where the applicant is not the right owner; or
(3) where the intellectual property right is no longer protected by laws and administrative regulations.
Article 9.Where Customs discover that the right owner fails to truthfully provide the relevant information or documents in the application, the CGA may cancel his recordal.
Article 10.The recordal shall be valid for ten years, counted from the date of the CGA's approval of the recordal.
Where the intellectual property rights are valid, the right owner may apply for a renewal within six months before the expiration of the recordal. And each renewal is valid for ten years.
The recordal shall become invalid if the right owner does not apply for a renewal when it expires or the intellectual property rights are no longer protected by laws and administrative regulations. Article 11.Where the recorded intellectual property rights have changed, the right owner shall go through the formalities of changing or canceling the recordal within thirty business days from the date of alternation of the recorded intellectual property rights.
Chapter III Request for Detaining Suspected Infringing Goods
Article 12.Where the right owner discovers that the goods suspected to infringe the intellectual property rights (referred hereinafter as "suspected goods") are about to be imported or exported, he may request the Customs located in importing or exporting place to detain the suspected goods.
Article 13.Where the right owner requests Customs to detain the suspected goods, he shall submit an application and other certification documents, and provide evidences that are sufficient to prove the infringing facts obviously exist.
The application shall include：
(1) the names, registration places or nationalities, etc. of the rights owners;
(2) the titles, contents and other relevant information of the intellectual property rights;
(3) the names of the consignees and consignors of the suspected goods;
(4) the names, specifications etc. of the suspected goods;
(5) the possible Customs located in importing or exporting places, time and conveyances etc. of the suspected goods.
Where the goods are suspected to infringe the recorded intellectual property right, the application shall include the number of the recordal.
Article 14.Where the right owner requests Customs to detain the suspected goods, he shall submit to Customs a guarantee not exceeding the value of the goods in order to compensate the possible losses caused by the undue application to the consignees or consignors and to pay for the fees of storage, custody and disposal, etc. of the goods after the detention. Where the right owner pays these fees directly to the storage traders, the fees shall be deducted from the guarantee. Specific measures shall be promulgated by the CGA.
Article 15.Where the right owner applies to detain the suspected goods in accordance with Article 13 of these Regulations and submit the guarantee according to Article 14 of these Regulations, Customs shall detain the suspected goods, notify the right owner in writing and send the detention receipt to the consignees or consignors.
Where the application to detain the suspected goods filed by the right owner does not comply with the Article 13 of these Regulations or the right owner does not submit the guarantee according to the Article 14 of these Regulations, Customs shall reject the application and notify the right owner in writing.
Article 16.Customs shall notify the right owner immediately when they discover the goods suspected to infringe recorded intellectual property rights. Where the right owner files an application according to Article 13 of these Regulations within three business days after he receives the notice from Customs and submits the guarantee according to Article 14 of these Regulations, Customs shall detain the suspected goods and send the detention receipt to the consignees or consignors. Where the right owner fails to file the application or submit the guarantee within the time limit, Customs shall not detain the goods.
Article 17.With the consent of Customs, the right owner and consignees or consignors may look over the relevant goods.
Article 18.Where the consignee or consignor holds that his goods have not infringed intellectual property right, he shall file a written explanation with Customs and provide relevant evidence.
Article 19.Where the consignee or consignor holds that his imported or exported goods have not infringed patent rights, he may submit a guarantee equal to the value of the goods to Customs and ask to release the goods. Where the right owner fails to institute proceedings in the People's Court in a reasonable period, the Customs shall return the guarantee.
Article 20.Where the right owner requests Customs to detain the suspected goods after Customs find the imported or exported goods infringing recorded intellectual property right and notify the right owner, the Customs shall initiate the investigation and confirmation on the goods whether to infringe intellectual property rights or not within thirty business days from the date of their detention. Where it cannot be confirmed, Customs shall notify the right owner in writing immediately.
Article 21.Where Customs ask for assistance of the relevant competent departments of intellectual property rights during their investigation to the detained goods, these departments shall give the assistance.
Where the competent departments of intellectual property rights deal with the cases related to the imported or exported goods suspected to infringe intellectual property rights and ask Customs offer assistance, Customs shall give the assistance.
Article 22.When Customs carry on their investigation to the suspected goods that are detained, the right owner and the consignees or consignors shall cooperate with Customs.
Article 23.After the right owner files an application with Customs to ask for protection, before any legal proceedings are instituted, he may, according to the China Trademark Law, the China Copyright Law or the China Patent Law, request the People's Court to issue an order to stop infringing acts or to take property preservation actions.
Where Customs receive a notification from the People's Court to enforce the order to stop infringing acts or to take property preservation actions, they shall give assistance.
Article 24.In any of the following situations, Customs shall release the suspected goods that are detained:
(1) where Customs have detained the suspected goods according to Article 15 of these Regulations and have not received a notice of assistance on execution from the People's Court within twenty business days from the date of detention;
(2) where Customs have detained the suspected goods according to Article 16 of these Regulations and have not received the notice of assistance on execution from the People's Court within fifty business days from the date of detention, and they can not confirm that the detained goods have infringed intellectual property right after investigation;
(3) where the consignees or consignors whose goods have been suspected to infringe patent right submit a guarantee equal to the value of the goods to Customs and ask Customs to release their goods;
(4) where Customs consider that the consignees or consignors have sufficient evidences to prove that their goods have not infringed any intellectual property rights.
Article 25.Where Customs detain the suspected goods according to these Regulations, the right owner shall pay the fees of storage, custody and disposal, etc. of the goods. Where the right owner does not pay the relevant fees, Customs may deduct them directly from the guarantee submitted by the right owner or ask the guarantors to fulfill their guaranty obligation.
Where the detained goods are confirmed to infringe intellectual property right, the right owner may add the fees above to the reasonable expense incurred to stop infringing acts.
Article 26.Where Customs find cases suspected to commit crimes when they take actions to protect intellectual property rights, they shall transfer these cases to the public security authority.
Chapter IV Legal Liability
Article 27.Where the detained goods are confirmed as infringing goods after Customs investigation, the Customs shall confiscate the goods.
Customs shall notify the relevant circumstances of the infringing goods to the right owner in writing after confiscation.
Where the infringing goods can be used for charitable purpose, Customs shall transfer them to the charitable organizations; where the right owner has the willing to purchase the infringing goods, Customs may sell the goods to them; where the infringing goods can not be used for charitable purpose and the right owner does not intend to purchase the goods, Customs may auction off the goods after removing the infringing features from the goods; where it is not feasible to remove the infringing features, Customs shall destroy the infringing goods.
Article 28.Where the articles carried or posted in or out the border by an individual are beyond the personal use and the reasonable quantity and have infringed the intellectual property right defined in Article 2 of these Regulations, Customs shall confiscate the articles.
Article 29.After Customs accept a application for recordal of intellectual property right and a request to take actions to protect his intellectual property right, where Customs can not find the infringing goods, adopt protective measures in a timely manner nor the protective measures adopted are not sufficiently strong, because the right owner failed to provide precise information, the right owner shall undertake the consequence by himself.
After the right owner requests Customs to detain the suspected goods, where the Customs can not confirm that the detained goods have infringed the intellectual property rights of the right owner or the People's Court make a judgment that the goods have not infringed the intellectual property right of the right owner, the right owner shall undertake the compensation responsibility in accordance with law.
Article 30.Where anyone import or export goods that have infringed intellectual property right, which constitutes a crime, he shall be prosecuted for his criminal liability in accordance with law. Article 31.When taking actions to protect intellectual property rights, any functionary of Customs abuses his power, or engages in malpractice for personal gain, which constitutes a crime, shall be prosecuted for his criminal liability in accordance with law. Where the case is not so serious to constitute a crime, he shall be given disciplinary sanction in accordance with law.
Chapter V Supplementary Provisions
Article 32.Where the right owner applies for a recordal of intellectual property rights with the CGA, he shall pay the recordal fee according the relevant regulations.
Article 33.These Regulations shall enter into force on March 1, 2004. The Regulations on Customs Protection of Intellectual Property Rights of the People's Republic of China promulgated by the State Council on July 5, 1995 shall be abrogated at the same day.
