Procedures
Of The Customs Of The People's Republic Of China On Protection Of
Intellectual Property Rights
(Effective
Date:1995.10.01--Ineffective Date:)
CHAPTER
ONE GENERAL PROVISIONS CHAPTER TWO RECORD CHAPTER THREE APPLICATION
FOR CUSTOMS PROTECTIONS CHAPTER FOUR INVESTIGATION AND SETTLEMENT
CHAPTER FIVE SUPPLEMENTARY PROVISIONS
Article
1 This set of procedures has been formulated in accordance with The
Regulations of Customs of the People's Republic of China on Protection
of Intellectual Property Rights so as to ensure the effective protection
of intellectual property rights by the Customs.
Article
2 Obligees of the intellectual property rights (referred to hereinafter
as the obligee) in this set of procedures are the owners or licensees
of copyrights as described in Article 9 of The Copyright Law of the
People's Republic of China, the parties which have registered the
trade mark as described in Article 3 of The Trade Mark Law of the
People's Republic of China or the patentees as described in Article
6 of The Patent Law of the People's Republic of China.
Article
3 When it deems necessary, the Customs can request a consignor /consignee
to make supplementary declaration on the intellectual property rights
of the goods that are being shipped while undergoing import/export
customs formalities.
The
consignor /consignee shall, upon request by the Customs, truthfully
declare the intellectual property rights of the import/export goods
and present related documents proving ownership of the intellectual
property rights or the right to legally use the intellectual property.
When
it deems necessary, the Customs may, in accordance with provisions
under The Customs Law of the People's Republic of China, examine and
pick up samples of the import/export goods.
Article
4 In protecting intellectual property rights, the Customs shall safeguard
the trade secrets of the parties concerned. The parties concerned
shall expressly request the Customs to guard its trade secrets in
its written document presented to the Customs.
Article
5 The application for keeping a record with the Customs for the protection
of intellectual property rights shall be filed by the obligees or
their agents with the General Administration of Customs. If an obligee
has no business site or representative offices on the Chinese territory,
he/she shall entrust his/her agent in China to file the application
for record-keeping.
Article
6 In case one of the co-owners of the intellectual property right
has filed an application for record-keeping with the General Administration
of Customs, the other co-owners do not have to file such an application
again.
Article
7 Obligees or their agents, in filing an application for record- keeping
with the General Administration of Customs, shall apply separately
according to the nature of the intellectual property and category
of the goods, together with other documents as stated in Article 8
of The Regulations of Customs Protection.
Except
stipulated items, the obligees or their agents shall fill up the application
forms in Chinese and pledge to submit authentic and valid documents
for examination, Documents submitted, if in foreign languages, shall
have a Chinese version attached. The obligees or their agents shall
also, upon request by the General Administration of Customs, provide
samples or photographs of the objects on which the intellectual property
rights are applied for record-keeping.
An
agent entrusted by an obligee to file record-keeping applications
shall present the power of attorney granted by the obligee concerned.
Article
8 An obligee, in applying for record-keeping, shall pay record- keeping
fee in accordance with the nature of the intellectual property and
the category of the goods. The way of collection and rate of the fees
shall be determined separately by the General Administration of Customs
together with other State organs.
Article
9 When approving the applications for record-keeping, the General
Administration of Customs shall issue the obligee a Record- Keeping
Certificate of Customs for Protection of Intellectual Property Rights
(referred hereinafter as Record-Keeping Certificate)
The
General Administration of Customs can issue a duplicate of Record-
Keeping Certificate to the co-owner of an intellectual property right
other than the one that filed record-keeping applications. When the
obligee applies for protection, both the original and duplicates of
Record-Keeping Certificate are legally valid.
When
rejecting a record-keeping application, the General Administration
of Customs shall notify the applicant of the rejection and provide
reasons for the rejection.
Article
10 A Record-Keeping Certificate shall be effective as of the date
of the its issuance by the General Administration of Customs. The
effective time of the record-keeping is seven years. If the term for
protecting an intellectual property is less than seven years from
the date of issuance of the Record-Keeping, the effective time of
the Record-Keeping Certificate shall conform with legal protection
term of the intellectual property right.
Article
11 Upon the expiration of term of a record-keeping, the obligee or
his/her agent may apply for a renewal within six months before the
date of the expiration.
The
obligee or agent, in applying for record-keeping renewal, shall present
a written application.
Article
12 The General Administration of Customs shall, within 15 days since
the receipt of the record-keeping renewal application, decides whether
to approve or reject the application. In case of rejection, the General
Administration of Customs shall issue a written notification and state
the reasons.
The
renewed record-keeping shall be effective as of the date immediately
following the expiration of the original record-keeping term.
The
effective term of the renewed record-keeping is seven years. If the
legal protection time for an intellectual property right is less than
seven years as of the effective date of the renewed record-keeping,
the effective term of the renewal shall conform with the intellectual
property rights' legal protection time.
Article
13 In one of the following circumstances, an obligee or his/her agent
shall go through modification formalities of intellectual property
protection with the General Administration of Customs:
1.
The name or registered residence of the obligee has changed;
2.
The licensing of the intellectual property rights has changed;
3.
The conditions of goods with which an intellectual property right
rests have changed;
4.
The situation of the agent has changed;
5.
Other circumstances that call for the change of record-keeping of
the intellectual property rights.
An
obligee or his/her agent, in applying for modification of the record-
keeping of intellectual property rights, shall present a modification
application, the Record-Keeping Certificate and other documents on
modification of the intellectual property rights. When the modification
of the intellectual property rights need to be approved by department
in charge of the State, the approval documents to the effect shall
also be presented in applying for record-keeping modification.
Article
14 Under one of the following circumstances, the General Administration
of Customs may rescind the record-keeping:
1.
The legal protection of an intellectual property right has been declared
null;
2.
The obligee has transferred its intellectual property rights;
3.
The obligee decides to give up its record-keeping of intellectual
property rights protection with the Customs;
4.
Major Customs protection fallacies incurred as a result of mistaken
record-keeping by the obligee or his/her agent, or as a result of
the fact that the obligee or his/her agent failed to undergo modification
formalities of the record-keeping within the stipulated time limit;
5.
The obligee or his/her agent failed to pay the required fees as stipulated;
6.
Other circumstances that should result in the revocation of the record-keeping.
After
the transfer of an intellectual property right, if the transferee
wants continued Customs protection, he/she can undergo the modification
formalities as stipulated in Article 13 of this set of procedures.
CHAPTER
THREE APPLICATION FOR CUSTOMS PROTECTIONS
Article
15 When an obligee or his/her agent requests protection from the Customs
against suspected goods to be exported/imported, he/she shall, in
accordance with Article 13 of the Regulations of Customs Protection,
file a written application to this effect with the Customs office
at the place where the goods are expected to be exported/imported,
together with related material objects, photographs or other proofs
proving the suspected infringement if requested by the Customs.
An
application for Customs protection shall be written in Chinese. Other
documents submitted, if written in a foreign language, shall also
have Chinese versions attached.
In
the application for customs protection, an obligee or his/her agent
shall expressly request the Customs to apprehend the goods that are
involved in the suspected infringement of the intellectual property
rights concerned.
The
obligee or its agent, in applying for Customs protection, shall present
Record-Keeping Certificate as well as its identification papers. The
agent shall also submit power of attorney granted by the obligee with
the Customs.
Article
16 An obligee or his/her agent, in applying for Customs apprehension
of the suspected goods, shall, in accordance with Article 14 of the
Regulations of Customs Protection, pay a guarantee equivalent to the
value of CAF/FOB of the imported/exported goods. If the amount of
CAF/FOB cannot be decided, a sum as estimated by the Customs shall
be paid.
Article
17 An obligee or his/her agent without a record-keeping arrangement
with the Customs, in applying for Customs protection of his/her intellectual
property rights, shall, in accordance with Article 15 of the Regulations
of Customs Protection, present the General Administration of Customs
with record-keeping application documents and application papers for
protection.
Article
18 If the application documents of the obligee or his/her agent fail
to meet the afore-mentioned requirements in this chapter, the Customs
office of the import/export port can reject.
Article
19 If an obligee with record-keeping decides to withdraw his/her request
for Customs protection, he/she shall file a written request to such
effect before the Customs decides to carry out the apprehension of
the suspected goods.
CHAPTER
FOUR INVESTIGATION AND SETTLEMENT
Article
20 The Customs, in apprehending suspected goods in accordance with
Articles 17 and 18, shall issue an apprehension voucher to the consignor/consignee
and issue a written notification to the obligee or his/her agent.
Article
21 Upon notification by the Customs of the apprehension of goods suspected
of infringement in accordance with Article 18 of the Regulations of
Customs Protection, an obligee or his/her agent shall reply in one
of the following three ways within three days after the receipt of
the written notification.
1.In
accordance with the provisions in Chapter Three of this set of procedures,
file applications for Customs protection and pay guarantee in accordance
with Article 16 of this set of procedures;
2.
Present a written statement to request the withdrawal of the right
to protection and state the reasons;
3.
Present a written statement to the Customs to show that the goods
apprehended are not involved in rights infringement.
If
the obligee or his/her agent fails to present a reply within the time
limit in the aforementioned manners, the Customs may, in accordance
with Article 22 of the Regulations of Customs Protection, release
the goods apprehended.
Article
22 A consignor/consignee, if considering that the goods apprehended
by the Customs are not involved in rights infringement, may file a
written objection within seven days since receiving the apprehension
voucher with the Customs that produced the voucher.
Upon
receiving the written objection of the consignor/consignee, the Customs
shall send the obligee or his/her agent a written notification of
the dispute over infringement.
Article
23 If an obligee or his/her agent, in accordance with Article 17 of
the Regulations of Customs Protection, files a complaint over the
disputed rights infringement with the departments in charge for the
administration of intellectual property rights protection or files
a lawsuit with the people's court, a written notification as well
as related documents' duplicates shall be sent to the Customs within
15 days since the receipt of the Customs written notification for
the infringement dispute. Without receiving the notification after
the deadline, the Customs, in accordance with Article 22 of the Regulations
of Customs Protection, shall release the apprehended goods.
Article
24 A consignor/ consignee, in requesting the release of the concerned
goods in accordance with Article 19 of the Regulations of Customs
Protection, shall file a written request with the Customs and pay
in advance a guarantee equivalent to twice as much as the CAF/FOB
of the imported /exported goods.
Before
releasing the goods, the Customs shall pick up a sample and have it
sealed and clearly marked by the Customs and the consignor/consignee
confirms by signing on the paper strip seal or through other means.
Article
25 Under one of the following circumstances, the Customs can reject
the application by a consignor/consignee for release of the goods
suspected of rights infringement:
1.
The consignor/consignee failed to file an objection over the Customs
apprehension of the goods in accordance with related provisions;
2.
The consignor/consignee failed to pay the required guarantee in advance;
3.
The goods apprehended by the Customs are involved in other illegal
matters;
4.
The People's court has already made a ruling of possession protection;
5.
Other conditions for the Customs to release the goods were not met.
Article
26 The Customs shall, in accordance with Article 20 of the Regulations
of Customs Protection, start to make investigations on the goods suspected
of rights infringement and related matters within 15 days since the
apprehension of the goods. The Customs shall cease the investigations
under one of the following circumstances:
1.
The parties concerned have filed a complaint with the departments
in charge for the protection of intellectual property rights or have
filed a lawsuit with the people's court over the rights infringement
dispute;
2.
The Customs suspect that the dispute involves criminal activities
and thus should be turned over to other related departments for further
investigation.
During
the investigations, the obligee or its agent shall give necessary
assistance as required by the Customs.
Article
27 The Customs, in releasing the goods in accordance with Article
22 of the Regulations of Customs Protection, shall send the obligee
or his /her agent a written notification and return the guarantee
fund after deducting storage fees and compensation to other party
that suffered damages as a result of inappropriate application for
goods apprehension.
If
the goods in question have already been released in accordance with
Article 19 of the Regulations of Customs Protection, the Customs shall
return the submitted guarantee money to the obligee or his/her agent.
Article
28 If the apprehended goods have been proved by the Customs and the
departments in charge for the protection of intellectual property
rights or by the people's court as involved in rights infringement,
the Customs shall have them confiscated in accordance with Article
23 of the Regulations of Customs Protection.
For
the goods that have been released by the Customs in accordance with
Article 19 of the Regulations of Customs Protection, the Customs shall
have them recovered and confiscated. If the goods cannot be recovered
and confiscated, the Customs shall seek a payment equivalent to the
CAF/FOB of the imported/exported goods from the consignor/consignee.
The
Customs, in confiscating the goods involved in rights infringement
or seeking an equivalent payment, shall issue the consignor/consignee
a notification of penalty.
Article
29 After confiscating the goods involved in rights infringement, the
Customs shall, in accordance with Article 19 of the Regulations of
Customs Protection, return the submitted guarantee fund to the consignor/consignee,
deducting the value of the confiscated goods, the storage fees of
the goods during apprehension and processing fee for the goods involved
in rights infringement.
After
confiscating the goods involved in rights infringement, the Customs
shall send the obligee or his/her agent a written notification. As
to the guarantee fund submitted by the obligee, the Customs shall,
in addition to the money deducted from the consignor/ consignee's
guarantee as stated in the previous paragraph, deduct fees incurred
during the storage and processing of the goods in question and return
the remaining sum to the obligee.
Article
30 The amount of damages that should be paid to the other parties
concerned as a result of the obligee's inappropriate application for
goods apprehension shall be established in accordance with the ruling
or verdict of the people's court.
The
amount of storage fees of goods apprehended and the processing fees
of goods involved in rights infringement shall be established in accordance
with the actual expense incurred.
If
the amount of guarantee funds submitted by the consignor/consignee
and the obligee cannot fully cover the storage and processing fees
and the equivalent of the value of the goods confiscated, the Customs
are entitled to seek full payment.
CHAPTER
FIVE SUPPLEMENTARY PROVISIONS
Article
31 The right to interpret this set of procedures resides in the General
Administration of Customs.
Article
32 This set of procedures goes into effect as of October 1,
