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Implementation regulations of Customs Protection of Intellectual Property Rights (1995.10.1)

Chapter I  General Provisions

Article 1 The present rules are drawn in accordance with the Regulation of the P.R.C. (hereinafter referred to as the Customs Protection Regulations), with a view to enforcing customs protection of intellectual property rights effectively.

 

Article 2 In the present rules, owners of intellectual property rights (referred to below as owners of rights) shall be copyright owners prescribed in Article 9 of the Copyright Law of the People's Republic of China as well as the licensee who has the exclusive right to use the relevant copyright trademark registrants mentioned in Article 3 of the Trademark Law of the People's Republic of China, and patentees mentioned in Article 6 of the Patent Law of the People's Republic of China.

 

Article 3 Where it is deemed necessary, the Customs may require the consigners and consignees to make a supplementary declaration of the status of the intellectual property rights of the goods when going through the customs formalities regarding the import or export goods.

Consigners and consignees shall, as requested, make an actual declaration on the IPR status related to the import or export goods in accordance with the requirements of the Customs and submit certifying documents concerning the ownership or lawful use of the relevant intellectual property.

Where it is deemed necessary, the Customs may inspect the import or export goods and take samples in accordance with the relevant provisions of the Customs Law of the People's Republic of China.

 

Article 4 In carrying out the protection of intellectual property rights, the Customs shall preserve the business secrets of the relevant parties. The relevant parties shall indicate in the written documents submitted to the Customs the contents of the business secrets that the Customs are requested to preserve.

 

Chapter II  Recordation

Article 5 An application for recordation of the Customs protection of intellectual property rights shall be filed with the Customs General Administration by the IPR owner or his agent. Where the owner of right has not set up a business office or working body in China, he shall entrust his agent in the country with the filing of the application for putting the matter on record.

 

Article 6 After any one of the co-owners of an intellectual property right has filed with the General Administration of Customs an application for putting on record the customs protection of the relevant intellectual property right, there is no need for the other owners of the right to file another application.

 

Article 7 An owner of right or his agent applying for putting on record the customs protection of his intellectual property right shall, according to the nature of the intellectual property and the classification of the goods, file with the General Administration of Customs a corresponding application and append to it the documents that shall be submitted for examination as prescribed in Article 8 of the Customs Protection Regulations.

Except for the items prescribed, the owner of right or his agent shall fill out in Chinese an application form for putting the customs protection on record and shall guarantee that the application documents submitted for examination are authentic and valid. Documents in foreign languages submitted for examination shall be accompanied by Chinese translations. The owner of right or his agent shall also furnish, in accordance with the requirements of the General Administration of Customs, photographs or samples of the object embodying the intellectual property right of which the customs protection is to be put on record.

Where an agent is entrusted by the owner of right with filing the application for putting the customs protection of the intellectual property right on record, a power of attorney issued by the owner of right shall also be submitted for examination.

 

Article 8 In applying for the customs protection to be put on record, the owner of right shall pay a putting-on-the-record fee according to the classification of the intellectual property and the goods. The procedure and schedule for collecting the fees shall be separately formulated by the General Administration of Customs jointly with the relevant departments of the State.

 

Article 9 Where the General Administration of Customs approves an application for putting the customs protection of the relevant intellectual property right on record, it shall issue to the owner of right a Certificate of Recordation for Customs Protection of Intellectual Property Rights (hereinafter referred to as the Certificate of Recordation).

The Customs General Administration may, in accordance with the written request of the other co-owners of the intellectual property right who have not filed an application for putting the customs protection of the right on record, issue to them copies of the Certificate of Putting on Record. Where an owner of right files an application for adopting protective measures, a copy of the Certificate of Putting on Record has the same legal effect as that of the original.

Where an application for putting on record is not accepted, the General Administration of Customs shall notify the owner of right in writing and state the reason for non-acceptance

 

Article 10 The putting-on-record shall come into effect from the date on which the Certificate of Putting on Record is issued by the General Administration of Customs. The term of validity of the record shall be seven years. Where the term of legal protection for the intellectual property right is less than seven years from the date on which the putting on record comes into effect, the term of validity shall accord with the term of legal protection of the intellectual property right.

 

Article 11 After an application for putting on record has been approved by the General Administration of Customs, where the owner of right or his agent requests an extension of the record on its expiration, he shall apply to the General Administration of Customs for renewing the recordation the extension within six months before the expiration of the record.

In applying for an extension of the record, the owner of right or his agent shall file a written application.

 

Article 12 The General Administration of Customs shall, within fifteen days from the date of receiving the application for an extension, make a decision on whether to approve the extension of the record. Where the extension is denied, the General Administration of Customs shall issue a written notice and state the reason for denial.

A record approved for extension by the General Administration of Customs shall become effective as from the second day of the expiration of the preceding record.

The term of validity of the extended record is seven years. Where the term of legal protection for the intellectual property right is less than seven years from the date on which the extended record comes into effect, the term of validity of the extended record shall accord with the term of legal protection of the intellectual property right.

 

Article 13 In any of the following events, the owner of right or his agent shall go through the formalities of changing the record of the intellectual property right at the General Administration of Customs:

(1) where the name or registered address of the owner of right has changed;

(2) where the state of licensing of the intellectual property right has changed;

(3) where the state of the product bearing the intellectual property right has changed;

(4) where the state of the agent has changed;

(5) where there are other circumstances which necessitate a change in the record.

In applying for going through the formalities of changing the record of the intellectual property right, the owner of right or his agent shall submit an application for changing the record, the Certificate of Putting on Record and certifying documents relevant to the change in the intellectual property right. Where the change in the intellectual property right has to be approved by the relevant competent department of the State, the owner of the right which has been put on record has also to submit for examination the document approving the change issued by the relevant competent department.

 

Article 14 In any of the following events, the General Administration of Customs may cancel a recordation:

(1) where the legal protection of the intellectual property right is declared to have lost its effect;

(2) where the owner of right has assigned his intellectual property right;

(3) where the owner of the right which has been put on record has abandoned the record of legal protection of his intellectual property right;

(4) where the owner of right or his agent has made a mistake when having the intellectual property right put on record, or fails to go through the formalities for changing the record within the prescribed time limit, so that a major fault has appeared in customs protection;

(5) where the owner of right or his agent has failed to pay the prescribed fees;

(6) where there are other circumstances calling for cancellation of the record.

After the intellectual property right is assigned, if the assignee wants the Customs to continue to give protection to the assigned intellectual property right, he may go through the formalities for changing the record according to the provisions of Article 13 of the present Rules.

 

Chapter III  Applying for customs protection measures

Article 15 Where the owner of right or his agent requests the Customs to adopt protective measures in respect of suspected infringing goods which are about to be imported or exported, he shall, in accordance with the provisions of Article 13 of the Customs Protection Regulations, file an application with the Customs in the place of import or export of the goods and submit additionally, according to the requirements of the Customs, samples or photographs of the suspected infringing goods or other evidence.

The application requesting the Customs to adopt protective measures shall be written in Chinese. If the other documents submitted are in foreign languages, their Chinese translations shall be appended.

Among the measures that the Customs are requested to adopt, the owner of right or his agent shall explicitly make a request for the Customs to detain the suspected infringing goods

When filing an application, the owner of right or his agent shall produce the Certificate identification. Where the agent is filing on behalf of the owner of right, he shall also submit to the Customs a power of attorney issued by the owner of right.

 

Article 16 When requesting the Customs to detain the suspected infringing goods, the owner of right or his agent shall, in accordance with the provision of Article 14 of the Customs Protection Regulations, submit a security equivalent to the CIF price of the import goods or the FOB price of the export goods; where the CIF or FOB price cannot be determined, the security shall be submitted in the amount estimated by the Customs.

 

Article 17 Where the owner of an intellectual property right which has not been put on record at the General Administration of Customs beforehand or his agent applies to the Customs for adopting protective measures, he shall, in accordance with the provision of Article 15 of the Customs Protection Regulations, simultaneously file with the General Administration of Customs an application for having the customs protection of the said intellectual property right put on record and an application for protective measures to be adopted.

 

Article 18 Where the application filed by the owner of right or his agent for adopting protective measures does not conform to the above provisions in this Chapter, it shall not be accepted by the Customs of the place of import or export.

 

Article 19 Where the owner of a right which has been put on record asks to withdraw his application for adopting protective measures, he shall file a written application before the Customs makes a decision to detain the suspected infringing goods.

 

Chapter IV  Investigating and dealing with Infringement

Article 20 The Customs shall, in accordance with the provisions of Articles 17 and 18 of the Customs Protection Regulations, draw up and serve on the consignee or consigner a warrant for customs detention and notify the owner of right or his agent in writing.

 

Article 21 Where the Customs have detained the suspected infringing goods in accordance with the provision of Article 18 of the Customs Protection Regulations, the owner of right or his agent shall, within three days from the date of receiving the written notice from the Customs, respond in writing by choosing one of the following modes:

(1) to file with the Customs, in accordance with the provisions of Chapter III of these Procedures, an application for adopting protective measures and submit a security in accordance with the provision of Article 16 of these procedures;

(2) to submit to the Customs a written declaration of abandoning the right to request the Customs to adopt protective measures and explain the reason;

(3) to submit to the Customs a written declaration that the detained goods do not constitute an infringement.

Where the owner of right or his agent fails to respond in one of the above modes within the prescribed time limit, the Customs may release the detained goods in accordance with the provision of Article 22 of the Customs Protection Regulations.

 

Article 22 Where the consignee or consigner holds that the goods detained by the Customs are not infringing, he shall, within seven days from the date of receiving the warrant of detention issued by the Customs, file a written opposition with the Customs which have issued the warrant of detention.

On receiving the written opposition of the consignee or consigner, the Customs shall inform the owner of right or his agent in writing of the infringement under dispute.

 

Article 23 Where the owner of right or his agent submits the infringement dispute to the competent department for the relevant category of intellectual property right to be dealt with or institute proceedings in the People's Court in accordance with the provision of Article 17 of the Customs Protection Regulations, he shall, within fifteen days from the date of service of the written notice of the infringement dispute issued by the Customs, submit to the Customs a written notice appended with copies of the relevant documents. If the time limit is exceeded, the Customs may, in accordance with the provision ofArticle 22 of the Customs Protection Regulations, release the detained goods.

 

Article 24 Where the consignee or consigner, in accordance with the provision of Article 19 of the Customs Protection Regulations, requests the Customs to release the relevant goods, he shall submit to the Customs a written application and submit beforehand a security the amount of which is equivalent to that of twice the CIF price of the import goods or the FOB price of the export goods.

Before releasing the goods, the Customs shall take out a sample, seal it up and authenticate it by affixing their stamp on the paper strip seal together with the stamp or signature of the consignee or consigner, or by some other means.

 

Article 25 In any of the following events, the Customs shall not accept the application filed by the consignee or consigner for releasing the suspected infringing goods:

(1) where the consignee or consigner fails to file, according to regulations, an opposition to the detention of the goods by the Customs;

(2) where the consignee or consigner fails to submit a security according to regulations;

(3) where the goods detained by the Customs are unlawful in other respects;

(4) where the People's Court has made a ruling on property preservation;

(5) where other conditions for the release of the goods by the Customs are not met.

 

Article 26 After detaining the suspected infringing goods, the Customs shall, in accordance with the provision of Article 20 of the Customs Protection Regulations, initiate an investigation on the suspected infringing goods and the relevant circumstances within fifteen days from the date of their detention. The Customs shall terminate its investigation on any of the following events:

(1) where the relevant party has submitted the infringement dispute to the competent department for that category of intellectual property right to be dealt with or had instituted proceedings in the People's Court;

(2) where the Customs suspect that an offence has been committed and the investigation should be turned over to the relevant organization.

In the course of investigation, the owner of right or his agent shall render the necessary assistance to the Customs when requested.

 

Article 27 Where the Customs release the goods in accordance with the provision of Article 22 of the Customs Protection Regulations, they shall dispatch a written notice to the owner of right or his agent and refund to the owner of right the security submitted after deducting the expenses related to the storage, custody and disposal of the goods during detention and the compensation for losses caused to other parties by the application which is found to be improper.

Where the above-mentioned goods have already been released by the Customs in accordance with the provision of Article 19 of the Customs Protection Regulations, the Customs shall refund to the consignee or consigner the surety submitted.

 

Article 28 Where the suspected infringing foods detained have been determined by the Customs, the competent department for that category of intellectual property right or the People's Court to be infringing goods, they shall be confiscated by the Customs in accordance with the provision of Article 23 of the Customs Protection Regulations.

With regard to infringing goods already released by the Customs in accordance with the provision of Article 19 of the Customs Protection Regulations, the Customs shall pursue and confiscate them; where the goods cannot be pursued and confiscated, the Customs shall pursue the payment by the consignee or consigner of a sum equivalent to the CIF price of the import goods or the FOB price of the export goods.

In confiscating the infringing goods or pursuing the payment of a sum equivalent to the price of the goods, the Customs shall make out and issue to the consignee or consigner a notice of penalty.

 

Article 29 Having confiscated the infringing goods, the Customs shall refund to the consignee or consigner the surety he has submitted after deducting such sums as the cost of the infringing goods pursued, the expenses related to the storage and custody of the goods during detention and the expenses entailed in disposing of the infringing goods.

Having confiscated the infringing goods, the Customs shall notify the owner of right or his agent in writing. In respect of the surety submitted by the owner of right, apart from the relevant expenses which have been deducted by the Customs from the surety submitted by the consignee or consigner in accordance with the provision of the preceding section of this article, the Customs shall refund it to the owner of right after deducting the expenses related to the storage, custody and disposal of the goods during detention.

 

Article 30 The amount of compensation for the losses caused to the relevant party by the improper application on the party of the owner of right shall be determined on the basis of the decision or ruling of the People's Court.

The expenses related to the storage and custody of the goods during detention and the expenses related to the disposal of the infringing goods shall be determined according to the amounts actually paid.

Where the security submitted by the consignee or consigner and the owner of right are insufficient to pay for the expenses related to the storage, custody and disposal of the goods and the sum equivalent to the price of the infringing goods pursued, the customs are empowered to pursue the payment of the balance.

 

Chapter V  Supplementary Provisions

 

Article 31 The Customs General Administration shall be responsible for the interpretation of the present Rules.

 

Article 32 The present Rules shall enter into force as from October 1, 1995.

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