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| Category | INAELLECTUAL PROPERTY RIGHT | Organ of Promulgation | The State Council | Status of Effect | In Force |
| Date of Promulgation | 1995-07-05 | Effective Date | 1995-10-01 |
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Regulations of the People's Republic of China on the Customs Protection of Intellectual Property Rights |
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Article 1 These Regulations are formulated in accordance with relevant
laws of the People's Republic of China, in order to enforce Customs protection
of intellectual property rights, promote with foreign countries economic,
trade, technological and cultural exchanges and safeguard social and public
interests.
Article 2 These Regulations are applicable to intellectual property
rights, including copyrights, patents and rights to the exclusive use of
trademarks, which are related to the imported and exported goods and protected
by the laws and administrative regulations of the People's Republic of China.
Article 3 The import or export of the goods which infringe on
intellectual property rights protected by the laws and administrative
regulations of the People's Republic of China (hereinafter referred to as
infringing goods) is forbidden.
Article 4 The Customs Office of the People's Republic of China shall
enforce the protection of intellectual property rights related to imported or
exported goods, and shall exercise relevant powers stipulated by the Customs
Law of the People's Republic of China.
Article 5 Consignees of imported goods or consignors of exported goods
and their registered agents (hereinafter jointly referred to as consignees or
consignors) shall honestly declare the state of intellectual property rights
related to imported or exported goods and shall submit relevant documents to
Customs for verification.
Article 6 Intellectual property rights owners and their registered agents
(hereinafter jointly referred to as intellectual property owners) requesting
Customs to enforce protection of intellectual property related to imported or
exported goods, shall report said intellectual property rights to Customs for
the record, and when necessary shall file an application with said office for
the institution of protective measures.
Article 7 When enforcing the protection of intellectual property rights, Article 8 Intellectual property rights owners shall submit written The application shall include: (1) the title or name, registration place or nationality, domicile, legal (2) registration number, content and period of validity of the registered (3) name and place of production of the goods related to intellectual (4) persons authorized or licensed to use intellectual property rights; (5) status of principal importing or exporting Customs Office, importer or (6) status of the manufacturer, importer or exporter, principal importing (7) other information the General Customs Administration considers The following documents must be enclosed when submitting applications: (1) copy of approved identification card, or transcript of registration (2) copy of the registration certificate of the registered trademark, copy (3) miscellaneous documents the General Customs Administration requires. Article 9 The General Customs Administration shall, within 30 days upon Article 10 The record of Customs protection of intellectual property Subject to the validity of intellectual property rights, the owner of said The record of Customs protection of intellectual property rights shall be Article 11 If the status of recorded intellectual property rights is Article 12 Intellectual property rights owners who have been entered into Article 13 Interested parties shall submit a written application The application shall include: (1) name and Customs record number of the intellectual property rights (2) name, domicile, legal representative and principal place of business (3) information on name and estimated volume of suspected infringing goods; (4) location of the probable entry or exit port, time, conveyance and (5) related proof of infringement; (6) measures applicant requests Customs to institute; (7) miscellaneous information requested by Customs. Article 14 Applicants requesting that Customs seize suspected infringing Article 15 Intellectual property rights owners requesting that Customs Article 16 Customs shall refuse to accept applications requesting that Article 17 When acting on the application of intellectual property rights Consignees or consignors claiming that imported or exported goods do not The applicant shall have the right to apply to the appropriate Article 18 Customs shall have the authority to detain imported or Article 19 Consignees or consignors maintaining that detained goods do Article 20 When detaining suspected infringing goods under the procedures When suspecting any form of criminal activity in relation to intellectual Article 21 The intellectual property rights owner should afford all Article 22 The Customs may release the suspected infringing goods in (1) if an investigation by Customs or an appropriate intellectual property (2) if the people's court, by judgment or order, has eliminated any (3) if parties involved in the dispute failed to initiate action in the (4) if the intellectual property rights owner fails to file a reply within Article 23 Suspected infringing goods in detention later found by Article 24 Customs shall handle confiscated goods in accordance with the (1) goods infringing copyrights shall be destroyed; (2) goods infringing rights to exclusive use of a trademark shall be (3) infringing goods other than those prescribed in the two preceding Article 25 Once decisions by Customs, a relevant intellectual property (1) warehousing, storage, disposal and other relevant fees applying to said (2) compensation paid to interested parties for goods detained due to an Article 26 Civil disputes between intellectual property rights owners and Article 27 Customs shall be free from any responsibility and the Article 28 In cases when a consignee or consignor was aware or should Article 29 If a consignee or consignor fails to honestly declare the Article 30 Any interested party disagreeing with the punishment decision Concerned parties may file suit directly in the people's court within 30 Article 31 If the importation or exportation of infringing goods Article 32 Customs officials or staff responsible for enforcing Article 33 Goods entering or exiting the country as luggage and other Article 34 Customs may charge recording fees and other necessary fees Article 35 The General Customs Administration shall formulate specific Article 36 These Regulations shall go into effect as of October 1, 1995.
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Customs shall protect all trade secrets of the parties concerned.
Chapter II Record
applications to the General Customs Administration when applying to the
Customs Office for the protection of intellectual property rights.
representative and principal place of business of the owner of intellectual
property rights;
trademark, or the number, content and period of validity of the patent, or
content of the copyright;
property rights;
exporter, principal features, and normal prices of the goods related to
intellectual property rights;
or exporting Customs Office, principal features and prices of known infringing
goods;
relevant.
certificate of intellectual property owner, or copy attested by appropriate
registration departments;
of the announcement of assignment of registered trademark approved by the
Trademark Bureau, or the trademark licensing contract entered in the records
of the Trademark Bureau; or copy of the original certificate, transcript of
patent assignment contract registered with and publicly announced by the
Patent Office, and copy of the licensing contract for exploitation of patent;
or certificate of proof of copyright or other evidence;
receipt of application documents, notify applicants if the application will be
entered in the record. If entered into the record, the General Customs
Administration shall provide a certificate of record of Customs protection of
intellectual property rights; the Administration shall explain reasons for the
failure to enter applications.
rights shall take effect on the day said record is approved by the General
Customs Administration. The period of validity shall be 7 years.
intellectual property rights may apply to the General Customs Administration
for the renewal of record within 6 months prior to the expiration of the
period of validity of the record of Customs protection of intellectual
property rights. The period of validity for each renewal of record shall be 7
years.
invalid if no application for renewal has been filed prior to the expiration
of the period of validity of the record of Customs protection of intellectual
property, or expiration of the legal protection period of the right to the
exclusive use of trademarks, patents or copyrights.
altered, the owner of said intellectual property rights shall complete all
General Customs Administration formalities required for altering or cancelling
the record within 10 days after the day the intellectual property agency
approves the alteration.
Chapter III Applications
the record of the General Customs Administration may submit an application
requesting that the Customs Office located in site of importation or
exportation adopt protective measures for intellectual property rights if they
suspect infringements of goods entering or exiting the country.
requesting that Customs institute protective measures for intellectual
property rights.
applicant requests Customs to protect;
of the alleged infringer;
consignees or consignor of the suspected infringing goods;
goods should submit a bail bond equal to the CIF price of imported goods or
the FOB price of exported goods.
institute protective measures for intellectual property rights not as yet
entered into the records of the General Customs Administration shall complete
all formalities of the record of intellectual property rights in accordance
with the provisions of Article 8 of these Regulations when applying for same.
Custums institute protective measures for intellectual property rights which
fail to conform with relevant provisions in this Chapter.
Chapter IV Investigation and Handling of Cases
owners to detain suspected infringing goods, Customs must file a Customs
Detention Receipt, serve same on the consignee or consignor of the goods, and
notify the applicant in writing.
infringe on the intellectual property rights of the applicant shall, within
7 days of being served the Customs Detention Receipt, file a written objection
explaining related circumstances. Should the consignee or consignor fail to
file an objection within the prescribed 7 day period, Customs may, depending
on the outcome of an investigation, treat and deal with proven infringing
goods accordingly. Customs shall immediately notify the applicant in writing
of any objection filed by the consignee or consignor.
intellectual property rights protection agency requesting that said agency
deal with the infringement dispute, or otherwise take action concerning the
dispute in the people's court within 15 days from the date the written
notification from Customs was served in accordance with the first paragraph in
this Article.
exported goods suspected of infringing on intellectual property rights entered
in Customs records. Customs must serve the consignee or consignor with a
Customs Detention Receipt and immediately notify the intellectual property
rights owner in writing when goods are detained. If the intellectual property
rights owner submits a written application for intellectual property
protection within 3 days following the written notification of the detention
of goods, the matter shall be handled in accordance with provisions in Article
17 of these Regulations.
not in fact infringe on the intellectual property rights of the applicant may
apply for clearance of the goods after relinquishing a bail bond equal to two
times the CIF price of the imported goods, or two times the FOB price of
exported goods.
described in Articles 17 and 18 of these Regulations, Customs must conduct an
investigation within 15 days following the actual detention of the goods
unless any parties involved have submitted the infringement dispute to the
appropriate intellectual property rights agency for handling, or has
instituted action concerning the dispute in the people's court.
property rights infringements, Customs shall alert the appropriate agency for
further investigation.
necessary assistance to Customs officials conducting an investigation of the
suspected infringing goods in detention, and all other relevant matters.
detention under any of the following circumstances:
rights agency has eliminated any suspicion of infringement;
suspicion of infringement;
people's court prior to the specified deadline, or if the people's court
refuses to hear the case, or if the people's court fails to issue an order to
adopt property preservation measures;
the specified period of time, or if the said owner relinquishes Customs
protection of intellectual property rights.
Customs, or by an appropriate intellectual property rights agency, or by the
people's court to be infringing goods shall be confiscated by Customs.
following provisions in the light of differing circumstances:
destroyed if the infringing trademark cannot be removed from the goods; in
cases when the trademark can be removed and the goods are still useable, the
goods shall, after the trademark has been properly destroyed, be used for
public service, or sold at public auction for the personal use of persons
other than the infringer;
paragraphs shall be dealt with in accordance with relevant regulations of the
State Council.
rights agency, or a judgment or order of the people's court take effect, any
bail bond posted to Customs by concerned parties shall be returned after
subtraction of the following fees:
goods;
unjust application filed by the applicant for Customs protection.
consignees or consignors of the goods shall be resolved by litigation,
arbitration or other lawful means selected at the discretion of the parties
involved. Customs bears no responsibility for civil cases.
intellectual property rights owner shall bear full responsibility if Customs,
due to inaccurate information provided by the said intellectual property
rights owner, fails to locate the infringing goods, or fails to commence
applications for protection of intellectual property rights in a timely manner
or takes improper measures to protect the intellectual property after
accepting the record of intellectual property rights protection and the
application for adopting measures to protect intelletual property rights.
Chapter V Legal Responsibility
otherwise have been aware that their goods infringed on the intellectual
property rights of another party, Customs may fine said consignee or consignor
an amount not more than the CIF price for imported goods or the FOB price for
exported goods.
status of intellectual property rights related to imported or exported goods,
or fails to submit relevant verification certificates, Customs may fine the
consignee or consignor an amount not more than the CIF price for imported
goods or the FOB price for exported goods.
of Customs may, within 30 days from the date of receiving the punishment
notice, or within 30 days from the date of the announcement of the punishment
decision when the Customs is unable to serve the punishment notice on parties
concerned, apply for reconsideration from the Customs rendering the punishment
decision, or to a higher level Customs department; the Customs department
concerned shall render a reconsideration decision within 90 days after
receiving the reconsideration application. Parties who disagree with the
reconsideration decision may institute action in the local people's court
within 30 days after receiving the reconsideration decision.
days after receiving the punishment notice, or the announcement of the
punishment.
constitutes a criminal act, the offender shall be investigated for criminal
responsibility in accordance with the law.
intellectual property rights protection who are found to have abused their
power, willfully created undue difficulties, neglected their duties, or
otherwise engaged in any malpractice to benefit an interested party, with
related circumstances deemed serious enough to constitute a crime, shall be
investigated for criminal responsibility in accordance with the law; Customs
officials or staff engaged in acts which do not constitute a crime shall be
given administrative sanctions in accordance with the law.
Chapter VI Supplementary Provisions
articles carried or posted by any individual which exceed the amount required
for personal use, or an otherwise reasonable amount, and which infringe on the
intellectual property rights of an owner under the protection of the laws and
administrative regulations of the People's Republic of China, shall be treated
as infringing goods and shall be handled in accordance with relevant
provisions in these Regulations.
related to detaining or otherwise handling infringing goods in the course of
carrying out intellectual property rights protection. Specific procedures for
charging related fees shall be formulated by the General Customs
Administration in association with the finance department and the commodity
price department of the State Council.
procedures for applications for recording Customs protection for intellectual
property rights, and for enforcing intellectual property rights protection, as
well as all related forms and documents required.
URL: http://www.asianlii.org/cn/legis/cen/laws/rotcpoipr756