porno Chinese Law | China: Measures of the General Administration of Customs of the People's Republic of China for the Implementation of the Regulation of the People's Republic of China on the Customs Protection of Intellectual Property Rights - 2004
China -  Chinese law firm
 China Lehmanlaw - Chinese Law Firm

Measures of the General Administration of Customs of the People's Republic of China for the Implementation of the Regulation of the People's Republic of China on the Customs Protection of Intellectual Property Rights - 2004

(Effective 1 July 2004)

 

Chapter I General Provisions

Article 1 The present Measures are hereby formulated in accordance with the Customs Law of the People's Republic of China and other laws and administrative regulations for the purpose of effectively implementing the Regulation of the People's Republic of China on the Customs Protection of Intellectual Property Rights (hereinafter referred to as the Regulation).

Article 2 Where an intellectual property right holder requests the customs to take measures to protect his intellectual property rights or handle the archival filing of customs protection on intellectual property rights at the General Administration of Customs, the domestic intellectual property right holder may file an application directly or by entrusting a domestic agent, and the overseas intellectual property right holder may file an application by entrusting his representative office or agent in China.

Where an intellectual property right holder files an application by entrusting his Chinese agent in accordance with the provisions of the preceding paragraph, he shall issue the power of attorney produced in the prescribed format.

Article 3 Where an intellectual property right holder and his agent (hereinafter are called jointly as the intellectual property right holders) find any goods suspected of infringement are about to be imported or exported, they may file an application to the customs for detainment of such goods in accordance with the provisions of Chapter III of the present Measures. In case any relevant goods are suspected of infringing the intellectual property rights that have been put on archives at the customs, the intellectual property right holders may report to the customs, and file an application to the customs for detainment of the goods suspected of infringement in accordance with the provisions of Chapter IV of the present Measures.

Article 4 A consignee of imported goods or his agent, or a consigner of exported goods or his agent (hereinafter are called jointly as the consignees or consigners) shall know the conditions of intellectual property rights of the goods imported or exported by him within a reasonable extent. Where there is any necessity to declare the status of the intellectual property rights of the goods imported or exported by him, the consignees or consigners shall declare to the customs according to the facts and submit relevant certificate documents.

Article 5 In case any business secret is involved in the relevant documents or evidences, which are submitted to the customs by the intellectual property right holder or the consignee or consigner, the intellectual property right holder or consignor or consignee shall submit to the customs office a written explanation.

When conducting protection on intellectual property rights, the customs shall keep the business secrets of the relevant parties concerned, unless the customs has the duty to open the information according to law.

Chapter II Archive Filing of Intellectual Property Rights

Article 6 When handling the archival filing of the customs protection of intellectual property rights, an intellectual property right holder shall submit an application letter produced in the prescribed format to the General Administration of Customs.

An intellectual property right holder shall submit a copy of the application letter for each item of intellectual property right to be applied for archival filing. Where an intellectual property right holder applies for archival filing of international registered trademarks, he shall submit a copy of application letter separately for each class of commodity he applied for.

Article 7 Where an intellectual property right holder submits the application letter for archival filing to the General Administration of Customs, he shall attach the following documents or evidences accordingly:

1. The photocopy of the individual identity certificate of the intellectual property right holder, the photocopy of the business license for industry and commerce or the photocopies of other registered documents.

2. The photocopy of the Trademark Registration Certificate as signed by the trademark bureau of the administrative departments for industry and commerce under the State Council. In case the applicant alters any of the matters concerning the trademark registration, renews the trademark registration, transfers the registered trademark, or applies for archival filing of the international registered trademarks, he shall also submit the relevant certificate of trademark registration issued by the trademark bureau of the administrative departments for industry and commerce under the State Council; the photocopy of the certificate of voluntary registration of copyrights as signed and issued by the department of copyright registration and the pictures of the works certified by the department of copyright registration. In case an applicant fails to make voluntary registration on copyright, he shall submit a sample of the works that can prove he is the copyright holder and other relevant evidences of the copyright; and the photocopy of the patent certificate signed and issued by the administrative department of patent under the State Council. In case the patent authorization has exceeded one year from the date of making a public notice, the applicant shall also submit the duplicate of the patent register issued by the administrative department of patent under the State Council six months before the applicant files an application for archival filing. In case the applicant applies for archival filing of a utility model patent or patent of design, he shall also submit a photocopy of the searching report for the utility model patent made by the administrative department of patent under the State Council or a photocopy of the public notice on design patent as released by the administrative department of patent under the State Council;

3. Where an intellectual property right holder allows anyone else to use any of his registered trademarks, works or patents, and enters into a license contract with him, he shall provide a photocopy of the license contract; if no license contract is concluded, he shall submit a written statement on the licensee, scope and term of the license, and other conditions.

4. The photos of the goods and their packaging whose intellectual property rights have been exercised legally by the intellectual property right holders;

5. Proof of import or export of the infringing goods known. In case the infringement dispute between the intellectual property right holder and anyone else has been handled by the people's courts or the competent departments of intellectual property rights, the photocopies of the relevant legal documents shall also be submitted; and

6. Other documents or evidences to be submitted as required by the General Administration of Customs.

The documents and evidences submitted to the General Administration of Customs by the intellectual property right holders in accordance with the preceding paragraph shall be complete, true and effective. In case the relevant documents and evidences are written in any foreign language, a Chinese version shall be attached. Where the General Administration of Customs believes it necessary, it may require the intellectual property right holders to submit the notary or authentication documents of the relevant documents or the evidences.

Article 8 Intellectual property right holders shall pay for archival filing at the time of applying for handling archival filing of customs protection on intellectual property rights to the General Administration of Customs. The intellectual property rights holders shall, when submitting an application letter for archival filing to the General Administration of Customs, attach a photocopy of the proof of remittance for the archival filing fees.

The charging standards for the archival filing fees shall be set down by the General Administration of Customs together with the relevant departments of the state and have them publicized.

Article 9 The archival filing of the customs protection on intellectual property rights shall take effect from the date of archival filing as approved by the General Administration of Customs, with the period of validity of ten years. In case the period of validity of an intellectual property right is less than 10 years from the effective date of archival filing, the period of validity for archival filing shall be the period of validity of the intellectual property right.

The period of validity of the archival filing, which is approved by the General Administration of Customs before the implementation of the Regulation, or the period of validity of archival filing renewed upon approval shall still be computed according to the former period of validity.

Article 10 Intellectual property right holders may, within six months before the expiry of the validity period of archival filing for the customs protection of intellectual property rights, file a written application for renewing the period of validity of archival filing and attach the relevant documents. In case the General Administration of Customs approves to renew the period of validity of archival filing, it shall notify the intellectual property right holders in writing; if it refuses to approve the renewal, it shall notify the intellectual property right holders and explain the reasons.

The period of validity for extension of the archival filing shall be computed from the morrow of expiry of the period of validity for archival filing, and the period of validity shall be 10 years. In case the period of validity of the intellectual property rights is less than 10 years from the morrow of the expiry of the period of validity of archival filing of last time, the period of validity for renewing the archival filing shall be the period of validity of the intellectual property rights.

Article 11 In case there is any alteration on the conditions of following intellectual property rights that have been put on records, an intellectual property right holder shall, within 30 working days after the alteration, file an application to the General Administration of Customs for alteration of archival filing of customs protection on intellectual property rights and attach the relevant documents:

1. The name of the intellectual property right holder;

2. The commodities to which the registered trademark are allowed to use upon verification;

3. The conditions for licensing of the use of the registered trademarks, works or patents;

4. The communications address of the intellectual property right holder, contact person and contact telephone, etc.; and

5. Other conditions as prescribed by Article 7 of the Regulation.

Article 12 In one of the following circumstances, the intellectual property right holders shall file an application to the General Administration of Customs for deregistration of the customs protection on intellectual property rights within 30 days from the date of occurrence of alteration of the intellectual property rights that have been put on archives, and attach the relevant documents:

1. The intellectual property rights are no longer subject to the protection of laws and administrative regulations before the expiry of the period of validity of archival filing; or

2. The intellectual property rights that have been put on archives are transferred.

The General Administration of Customs may cancel the relevant archival filing of intellectual property rights falling within the circumstances as described in the preceding paragraph on its own initiative or upon the application of the interested party.

In case the intellectual property right holders give up the archival filing within the period of validity of the archival filing, he may apply to the General Administration of Customs for canceling the archival filing.

Article 13 The General Administration of Customs shall notify the intellectual property right holders in writing when it revokes the archival filing of customs protection on intellectual property rights as prescribed by Article 9 of the Regulation.

Where the General Administration of Customs cancels the archival filing, and the intellectual property right holder reapplies for archival filing of the identical intellectual property rights that have already been revoked for not more than one year, the General Administration of Customs may reject the reapplication.

Chapter III Detainment upon Application

Article 14 In case an intellectual property right holder finds out that any goods suspected of infringement are about to be imported or exported and requests the customs to detain them, he shall file an application letter to the customs office at the place of entry or exit of goods as prescribed in Article 13 of the Regulation. If the relevant intellectual property rights fail to be put on archives at the General Administration of Customs, the intellectual property right holder shall attach the documents and evidences as prescribed in item (1) and (2), paragraph 1 of Article 7 of the present Measures.

In case an intellectual property right holder requests the customs to detain the goods suspected of infringement, he shall submit to the customs office the obvious evidences that can sufficiently prove the existence of such infringement. The evidences submitted by the intellectual property rights holder shall be able to prove the following facts:

1. The goods that he asks the customs to detain are about to be imported or exported; and

2. The trademark or work that has infringed the special use right of his trademark is used in the goods or his patent is implemented without his approval.

Article 15 Where an intellectual property right holder requests the customs to detain the goods suspected of infringement, he shall provide a guarantee equivalent to the value of the goods to the customs within the time limit prescribed by the customs office.

Article 16 In case an intellectual property right holder files an application according to Article 14 of the present Measures and provides guarantee in accordance with the provisions of Article 15, he may ask the customs office to check the relevant goods before the customs office detains the goods suspected of infringement.

Upon the approval of the customs office, the intellectual property right holders may modify or withdraw its application before the customs office detains the goods suspected of infringement.

In case an intellectual property right holder files an application that does not correspond with the provisions of Article 14 of the present Measures or he fails to provide guarantee in accordance with the provisions of Article 15, the customs shall turn down his application and notify the intellectual property right holder in writing.

Article 17 In case the customs office detains the goods suspected of infringement, it shall notify the intellectual property right holders in writing the name, amount and value of the goods, the name of the consignees or consigners, the date of declaration of import or export, the date of detainment of the customs, and other facts, etc..

The intellectual property right holders may, according to Article 23 of the Regulation, file an application to the people's court for taking such measures as ordering the infringer to stop the infringement acts or property preservation. If, within 20 working days from the day when the customs office detains the goods suspected of infringement, the customs receives the written notice of the people's courts on the relevant rulings concerning assistance in execution, the customs office shall give assistance; if the customs office fails to receive the notice, the customs shall release the goods.

Article 18 Where the customs detains the goods suspected of infringement, it shall serve the written notice of detaining the goods suspected of infringement and a detainment voucher to the consignees or consigners, who may check the relevant goods upon approval of the customs office.

In case the consignees or consigners believe that the goods they import or export do not infringe upon the relevant intellectual property rights, they shall put forward a written statement to the customs within 20 working days from the day when the customs detains the goods and attach necessary evidences. If the consignees or consigners request the customs to release the goods suspected of infringing patent rights, they shall also submit a written application for releasing the goods to the customs office and a surety equivalent to the value of the goods.

Article 19 Where the consignees or consigners request the customs to release the goods suspected of infringing patent rights, which corresponds with the provisions of paragraph 2 of Article 18 of the present Measures, the customs office shall release the goods and notify in writing the intellectual property rights holders.

In case an intellectual property right holder files a lawsuit to the people's court on the relevant dispute concerning patent infringement, he shall, within 30 working days from the date of serving the written notice of the customs as prescribed by the preceding paragraph, submit to the customs office a photocopy of the notice for hearing and accepting the case produced by the people's court.

Chapter IV Investigation and Handling in Pursuance of Authority

Article 20 The customs shall make supervision over the goods imported or exported, and shall notify in writing the intellectual property right holders immediately once finding the imported or exported goods are suspected of infringing the intellectual property rights that have been put on archives at the General Administration of Customs.

Article 21 An intellectual property right holder shall give reply according to the following provisions within 3 working days from the date of serving the customs the written notice as described Article 20 of the present Measures:

1. If he believes that the relevant goods have infringed upon the intellectual property right that have been put on archives at the General Administration of Customs, and requests the customs to detain the goods, he shall file a written application to the customs for detaining the goods suspected of infringement and providing guarantee in accordance with Article 22 of the present Measures;

2. In case he believes that the relevant goods do not infringe upon the intellectual property rights that have been put on archives at the General Administration of Customs by him or does not request the customs office to detain the goods suspected of infringement, he shall explain the reason to the customs in writing.

The intellectual property right holder may check the relevant goods upon approval of the customs.

Article 22 Where the intellectual property right holders request the customs to detain the goods suspected of infringement in accordance with item (1), paragraph 1 of Article 21 of the present Measures, he shall provide guarantee to the customs according to the following provisions:

1. If the value of the goods is less than RMB 20 thousand Yuan, the guarantee provided shall be equal to the value of the goods;

2. If the value of the goods is RMB 20 thousand Yuan up to RMB 200 thousand Yuan, the guarantee provided shall be equal to 50% of the value of the goods, but the amount of the guarantee shall not be less than RMB 20 thousand Yuan; and

3. If the value of the goods exceeds RMB 200 thousand Yuan, the guarantee provided shall be RMB 100 thousand Yuan.

The intellectual property right holders may provide general guarantee to the customs upon approval of the customs office. The total amount of guarantee shall be no less than RMB 200 thousand Yuan.

Article 23 Where an intellectual property right holder files an application in accordance with item (1), paragraph 1 of Article 21 of the present Measures and provides guarantee according to Article 22, the customs shall detain the goods suspected of infringement and notify the intellectual property right holder in writing; if he fails to file an application or fails to provide guarantee, the customs shall release the goods.

Article 24 In case the customs office detain any goods suspected of infringement, it shall serve a written notice on detainment of the goods suspected of infringement and a detainment voucher to the consignees and consignors, who may check the relevant goods upon approval of the customs.

If the consignees or consignors believe that the goods they import or export do not infringe upon the relevant intellectual property rights, they shall put forward written statements to the customs and attach necessary evidences during the period when the customs is making investigations into the goods suspected of infringement. If they request the customs to release the goods suspected of infringing patent rights, they shall file a written application to the customs for releasing goods within 50 working days from the date the customs detains the goods and provide surety equivalent to the value of the goods.

In case the consignees or consignors request the customs to release the goods suspected of infringing upon any patent right, which corresponds with the provisions of the preceding paragraph, it shall be handled in accordance with Article 19 of the present Measures. But if the customs office believes that the goods have infringed upon relevant patent right during the period of investigation, it shall be handled in accordance with Article 27 of the Regulation.

Article 25 After the customs office has detained the goods suspected of infringement, it shall investigate into the said goods and other relevant conditions.

The consignees or consignors and the intellectual property right holders shall cooperate with the customs in investigation, and provide the relevant facts and evidences according to the facts.

Where the customs office investigates into the goods suspected of infringement, it may ask for the relevant departments in charge of intellectual property rights to provide consultation opinions.

Article 26 The customs shall, within 30 working days from the date of detaining the goods suspected of infringement, notify the intellectual property right holders any of the following investigation results:

1. Determining that the goods have infringed the relevant intellectual property rights;

2. Believing that the consignees or consigners have sufficient evidences to prove that their goods have not infringed the relevant intellectual property rights; and

3. Being unable to determine whether the goods have infringed the relevant intellectual property rights.

Article 27 In case the customs office can not determine whether the relevant goods have infringed upon the intellectual property rights, the intellectual property right holders may apply to the people's courts for taking such measures as ordering the infringers to stop the infringement acts or property preservation in accordance with Article 23 of the Regulation.

Where the customs receives the notice of the people's court on assistance in ordering the infringers to stop the infringement acts or property preservation within 50 working days from the date of detaining the goods suspected of infringement, it shall give assistance; if the customs office fails to receive the notice, the customs shall release the goods.

Article 28 In case the customs office makes a decision on confiscating the infringing goods, it shall notify the intellectual property right holders in writing the following known conditions:

1. The name and quantity of the infringing goods;

2. The name of the consignees or consigners;

3. Date of declaration of the import or export of the infringing goods, date of detainment by the customs and the date when the decisions on penalties take effect;

4. The named place of departure and named place of destination of the infringing goods; and

5. Other relevant conditions in relation to the infringing goods that may be provided by the customs.

Where, in the process when the people's courts or the competent departments in charge of intellectual property rights handle the infringement disputes between the relevant parties, it is necessary for the customs office to assist in the investigation and obtaining relevant evidences in relation to the imported or exported goods, the customs shall give assistance.

Article 29 Where any of the goods entering or exiting the frontiers carried by any individual or sent by mail exceeds the quantity for self-use and the reasonable amount and is suspected of infringing upon the intellectual property rights as prescribed in Article 2 of the Regulation, the customs shall have them detained; if, after investigation, the goods are believed to constitute an infringement, the customs shall have them confiscated.

Where the customs investigates into the infringing goods, the intellectual property right holders shall render aid.

Chapter V Disposal of Goods and Fees

Article 30 The customs office shall dispose of the goods it has confiscated according to the following provisions:

1. Where the relevant goods may be used directly for public welfare or the intellectual property right holder is willing to purchase the goods, the customs shall deliver the goods to the relevant public welfare institutions for the use of public welfare or transfer them to the intellectual property right holder with compensation;

2. Where the relevant goods cannot be disposed of in accordance with item (1) and the infringement character can be eliminated, they shall be auctioned according to law after eliminating the infringement character. And the income arising from the auction shall be turned in to the state treasury; and

3. Where the relevant goods cannot be disposed of in accordance with items (1) and (2), they shall be destroyed.

When the customs office destroys the infringing goods, the intellectual property right holders shall render necessary assistance. In case the relevant public welfare institutions use the infringing goods that are confiscated by the customs for public welfare or the intellectual property right holders assist the customs in destroying the infringing goods, the customs shall make necessary supervision over them.

Article 31 Where the customs office assists in the execution of the rulings of the people's courts for ordering the infringers to stop infringing acts or property preservation or releases the goods detained, the intellectual property right holders shall pay for such fees as the storage, preservation and disposal of goods during the period when such goods are detained by the customs.

Where the customs office confiscates the infringing goods, the intellectual property right holders shall pay such fees as storage, preservation and disposal of goods on the basis of the actual storage time after such goods are detained by the customs. But if the customs office fails to complete the disposal of goods within 3 months from the date of serving the decision on confiscation of the infringing goods to the consignees or consigners, and the failure is not caused due to the application of the consignees or consigners for administrative reconsideration, lodging of an administrative litigation or disposal of goods, or other special reasons, the intellectual property right holders do not need to pay the relevant fees after the above-mentioned 3 months.

Where the customs office auctions the infringing goods in accordance with item (2), paragraph 1 of Article 30 of the present Measures, the outlays for the auction fees shall be handled in light of the relevant provisions.

Article 32 In case the intellectual property right holders fail to pay the relevant fees in accordance with Article 31 of the present Measures, the customs shall have the right to deduct the relevant fees from the surety paid by the intellectual property right holders or require the guarantor to perform the duty of guarantee.

In case the customs office confiscates the infringing goods, it shall return the surety to the intellectual property right holders after completing the disposal of goods and settling the relevant fees or cancel the duty of guarantee.

Where the customs office assists in executing the rulings of the people's courts on ordering the infringers to stop the infringing acts or property preservation or releases the goods detained, if, within 20 working days from the date when the customs assists in the execution of the relevant rulings of the people's courts or releases goods, the customs office does not receive the notice of the people's courts in assisting the execution with the guarantee offered by the intellectual property right holders, the customs shall return the surety to the intellectual property right holders; if the customs has received the notice of assisting the execution, it shall give assistance.

Article 33 Where, after the customs has released the detained goods suspected of infringing patent rights in accordance with paragraph 1 of Article 19 of the present Measures, and the intellectual property right holders have submitted the photocopy of the notice of the people's courts on accepting the case to the customs office in accordance with paragraph 2 of Article 19 of the present Measures, the customs office shall handle the surety paid by the consignees or consignors in accordance with relevant judgment or rulings of the people's courts for assisting the execution; if the intellectual property right holders fail to submit the photocopy of the notice of accepting and hearing the case by the people's courts, the customs shall return the guaranty money provided by the consignees or consigners.

Chapter VI Supplementary Provisions

Article 34 In the present Measures, the "guarantee" shall refer to the guaranty money, letter of guarantee of banks or non-bank financial institutions.

Article 35 The "value of goods" in the present Measures shall be subject to the examination and determination by the customs on the basis of the bargaining price of the goods. If the bargaining price cannot be determined, the value of the goods shall be assessed by the customs according to law.

Article 36 When the intellectual property right holders and the consignees or consigners submit the photocopies of the relevant documents to the customs office according to the present Measures, the customs office shall check the photocopies against the original of the documents. If after checking, there is no mistake, the words "Same as the original" shall be affixed to the photocopies together with the signature and seal for confirmation.

Article 37 The present Measures shall come into force as of July 1st, 2004. The Measures of the People's Republic of China for the Implementation of the Customs Protection on Intellectual Property Rights (Order No.54 of the General Administration of Customs) shall be repealed simultaneously.

RSS Feeds