Regulations of the People's Republic of China on Customs Protection of Intellectual Property Rights
(State Council Decree No. 395, amended up to March 19, 2018)
Chapter I General Provisions
Article 1 These Regulations are formulated in accordance with the Customs Law of the People's Republic of China for the purposes of providing customs protection for intellectual property rights, promoting foreign trade and the scientific, technological and cultural exchanges with foreign countries and safeguarding public interests.
Article 2 Customs protection of intellectual property rights in these Regulations means the protection provided by the Customs for the exclusive rights to use a trademark, copyrights, copyright-related rights, and patent rights (hereinafter referred to as intellectual property rights) related to import or export goods and protected under the laws and administrative regulations of the People's Republic of China.
Article 3 The State prohibits the importation and exportation of goods which infringe intellectual property rights.
The Customs provides protection for intellectual property rights in accordance with the provisions of relevant laws and these Regulations, and exercises the relevant power under the Customs Law of the People's Republic of China.
Article 4 The holder of an intellectual property right, where requesting the Customs to provide protection for his intellectual property right, shall apply to the Customs for taking protective measures.
Article 5 The consignees of import goods or their agents, and the consignors of export goods or their agents shall declare the true state of the intellectual property rights related to their import or export goods and present relevant documentary evidence to the Customs in accordance with the provisions of the State.
Article 6 When providing protection for intellectual property rights, the Customs shall keep confidential the commercial secrets of the interested parties.
Chapter II Recordation of Intellectual Property Rights
Article 7 The holder of an intellectual property right may, In accordance with the provisions of these Regulations, apply to the General Administration of Customs for recordation of his intellectual property right. When applying for recordation, he shall present a written application. The application shall include the following particulars:
(1) the name of the holder of the intellectual property right and the place of registration or nationality thereof, etc.;
(2) the title and contents of the intellectual property right and any other information related there to;
(3) the licensing of the intellectual property right;
(4) the product name, origin, Customs at the port of entry or exit, Importer or exporter, main features and prices, etc. of the goods on which the holder of the intellectual property right has legitimate right; and
(5) the manufacturer, importer or exporter, Customs at the port of entry or exit, main features and prices, etc.of the goods that infringe the intellectual property right, as far as it is known.
The holder of the intellectual property right shall attach the documentary evidence, if any, for the contents of the application referred to in the preceding paragraph.
Article 8 The General Administration of Customs shall, within 30 working days from the date of receipt of all the application documents, make a decision on whether or not to grant the recordation and notify the applicant in writing. Where the recordation is not granted, the reasons therefor shall be given.
Under any of the following circumstances, the General Administration of Customs shall not grant the recordation:
(1) where the application documents are incomplete or invalid;
(2) where the applicant is not the holder of the intellectual property right; or
(3) where the intellectual property right is no longer protected by the laws or administrative regulations.
Article 9 Where the Customs finds that the holder of an intellectual property right fails to truthfully provide the relevant information or documents in the course of applying for the recordation of the intellectual property right, the General Administration of Customs may revoke the recordation.
Article 10 The recordation for customs protection of an intellectual property right shall be valid for a term of 10 years from the date on which the General Administration of Customs grants the recordation.
In respect of a valid intellectual property right, the holder thereof may apply to the General Administration of Customs for an extension of such recordation within six months prior to the expiration of its term of validity; and each extension shall be valid for a term of 10 years.
Where no application is made for extension of the recordation upon the expiration of its term of vilidity or the intellectual property right concemed is no longer protected by the laws or administrative regulations, the
recordation for customs protection of an intellectual property right shall cease to be valid immediately.
Article 11 Where there is any change in respect of the recordation of an intellectual property right, the holder of the intellectual property right shall go through the procedures for change or cancellation of such recordation with the General Administration of Customs within 30 working days from the date of occurrence of such change.
Where the holder of the intellectual property right fails to go through the procedures for change or cancellation of recordation in accordance with the provisions of the preceding paragraph, thus seriously affecting the legitimate importation or exportation activities of others or the discharge of control responsibilities by the Customs in accordance with law, the General Administration off Customs may revoke the recordation on the basis of an application lodged by a stakeholder or on its own initiative.
Chapter III Application for Detention of Suspected Infringing Goods and Disposal Thereof
Article 12 Upon discovery of suspected infringing goods pending importation or exportation, the holder of an intellectual property right may present an application with the Customs at the port of entry or exit for detaining such goods.
Article 13 Where the holder of an intellectual property right requests the Customs to detain suspected infringing goods, he shall present a written application and the relevant documentary evidence, and provide as well evidence sufficient to prove obvious existence of the infringement.
An application shall mainly include the following particulars:
(1) the name of the holder of the intellectual property right and the place of registration or nationality thereof, etc.;
(2) the title and contents of the intellectual property right and any other information related thereto;
(3) the names of the consignee and consignor of the suspected infringing goods;
(4) the product names, specifications, etc.of the suspected infringing goods; and
(5) the ports, time, means of transport, etc.related to the possible importation or exportation of the suspected infringing goods.
The application shall include the serial number of customs recordation in addition where the goods are suspected of infringing a recorded intellectual property right.
Article 14 Where the holder of an intellectual property right requests the Customs to detain suspected infringing goods, he shall provide the Customs with a security not more than the value of the goods to cover the possible losses suffered by the consignee or consignor due to an improper application, and the expenses for the warehousing, maintenance and disposal of the goods after being detained by the Customs.Where the holder of the intellectual property right has directly paid the expenses for warehousing and maintenance to the warehousing entity, the paid amount shall be deducted from the security accordingly.Specific measures therefor shall be formulated by the General Administration of Customs.
Article 15 Where the holder of an intellectual property right has applied for detention of the suspected infringing goods in conformity with the provisions of Article 13 of these Regulations and provided a security in conformity with the provisions of Article 14 of these Regulations, the Customs shall detain the suspected infringing goods, notify the holder of the intellectual property right in writing of the detention and serve a Customs Detention Receipt on the consignee or consignor.
Where the holder of an intellectual property right fails to comply with the provisions of Article 13 of these Regulations when applying for detaining the suspected infringing goods, or fails to comply with the provisions of Article 14 of these Regulations when providing a security, the Customs shall reject the application and notify the holder of the intellectual property right of such rejection in writing.
Article 16 Upon discovery of any import or export goods suspected of infringing a recorded intellectual property right, the Customs shall immediately notify the holder of the intellectual property right in writing of such suspected infringement.Where the holder of the intellectual property right presents an application in conformity with the provisions of Article 13 of these Regulations and provides a security in conformity with the provisions of Article 14 of these Regulations within three working days from the date of service of the notification, the Customs shall detain the suspected infringing goods, notify the holder of the intellectual property right in writing of such detention and serve a Customs Detention Receipt on the consignee or consignor. The Customs shall not detain the goods where the holder of the intellectual property right fails to present an application or provide a security at the expiration of the prescribed time period.
Article 17 With the consent of the Customs, the holder of an intellectual property right and the consignee or consignor may check the relevant goods.
Article 18 Where the consignee or consignor deems that his goods do not infringe the intellectual property right of the right holder, he shall present a written explanation to the Customs, as well as the relevant evidence.
Article 19 Where the consignee or consignor of the goods suspected of infringing a patent right deems that his import or export goods do not infringe the patent right, he may request the Customs to release the goods after providing the Customs with a security equivalent to the value of such goods.The Customs shall refund the security where the holder of the intellectual property right fails to file a lawsuit before the people's court within a reasonable period of time.
Article 20 Where, after the Customs discovers import or export goods suspected of infringing a recorded intellectual property right and notifies the right holder of such suspected infringement, the right holder requests the Customs to detain suspected infringing goods, the Customs shall initiate an investigation and, within 30 working days from the date of detention, make a determination as to whether the suspected infringing goods under detention infringe the intellectual property right;where no such determination can be made, the Customs shall immediately notify the right holder in writing.
Article 21 Where the Customs, in investigating on suspected infringing goods under detention, requests assistance from the competent intellectual property authority, the authority shall provide assistance.
Where the competent intellectual property authority, in handling a case of infringement involving import or export goods, requests assistance from the Customs, the Customs shall provide assistance.
Article 22 When the Customs conducts an investigation on suspected infringing goods under detention and other details of the case,the holder of the intellectual property right and the consignee or consignor shallprovide cooperation.
Article 23 After presenting an application to the Customs for taking protective measures, the holder of an intellectual property right may, in accordance with the provisions of the Trademark Law of the People's Republic of China, the Copyright Law of the People's Republic of China, the Patent Law of the People's Republic of China or other relevant laws, apply to the people's court for the adoption of such measures as to order the cease of the infringing act or preservation of property in respect of the suspected infringing goods under detention.
Where receiving a notification from the people's court for assistance in execution of an order to cease an infringing act or in preservation of property, the Customs shall provide assistance.
Article 24 The Customs shall release suspected infringing goods under detention in any of the following circumstances:
(1) where, after detaining the suspected infringing goods in accordance with the provisions of Article 15 of these Regulations, the Customs has not received any notification from the people's court for assistance in execution of an order within 20 working days from the date of the detention;
(2) where, after detaining the suspected infringing goods in accordance with the provisions of Article 16 of these Regulations, the Customs has not received any notification from the people's court for assistance in execution of an order and cannot determine through investigation that the suspected infringing goods under detention infringe the intellectual property right within 50 working days from the date of the detention;
(3) where the consignee or consignor of the goods suspected of infringing a patent right requests the Customs to release his goods after providing the Customs with a security equivalent to the value of such goods;
(4) where the Customs is convinced that the consignee or consignor possesses evidence sufficient to prove that his goods do not infringe the right of the holder of the intellectual property right;or
(5)where, before the Customs determines that the suspected infringing goods under detention are infringing goods, the holder of the intellectual property right withdraws his application for detention of such goods.
Article 25 Where the Customs detains suspected infringing goods in accordance with the provisions of these Regulations, the holder of the intellectual property right shall pay the relevant expenses for warehousing, maintenance and disposal of the goods. Where the holder of the intellectual property right fails to make such payment,
the Customs may deduct it from the security that he provided to the Customs or require the guarantor to perform his obligation.
Where it is determined that the suspected infringing goods infringe an intellectual property right, the holder of the intellectual property right may claim the paid expenses for warehousing, maintenance and disposal as reasonable expenses incurred in halting the infringement.
Article 26 Upon discovery of any suspected criminal offence in providing protection for intellectual property rights, the Customs shall hand the case over to the public security authorities for handling in accordance with law.
Chapter IV Legal Liability
Article 27 The suspected infringing goods under detention shall be confiscated by the Customs where it, after investigation, determines that such goods infringe an intellectual property right.
After confiscating the goods infringing intellectual property right, the Customs shall notify the holder of the intellectual property right in writing of the information related to the infringing goods.
Where the confiscated goods infringing intellectual property right can be otherwise used for public welfare, the Customs shall hand such goods over to the relevant public welfare bodies for use in public welfare. Where the holder of the intellectual property right intends to purchase the goods, the Customs may have such goods assigned to the holder of the intellectual property right with compensation. Where the confiscated goods infringing intellectual property right cannot be used for public welfare and the holder of the intellectual property right has no intention to purchase the goods, the Customs may have such goods auctioned in accordance with law after removing their infringing features. However, except in extraordinary circumstances, the imported goods bearing counterfeit trademarks shall not be allowed to enter into the channel of commerce simply by removing the trademark
logo from the goods. Where the infringing features cannot be removed, the Customs shall destroy the goods.
Article 28 Where, due to the failure on the part of the holder of the intellectual property right to provide exact information, the Customs, after accepting an application for recording an intellectual property right or for adopting protective measures for an intellectual property right, fails to discover the infringing goods, fails to adopt timely protective measures,or fails to implement the protective measures effectively, the holder of the intellectual property right shall be liable for the consequences of such failure.
Where, after the holder of an intellectual property right requests the Customs to detain the suspected infringing goods, the Customs cannot determine that the suspected infringing goods under detention infringe his intellectual property right or the people's court adjudicates that there is no infringement of his intellectual property right, the holder of the intellectual property right shall be liable for compensation in accordance with law.
Article 29 Where the importation or exportation of goods infringing an intellectual property right constitutes a crime, criminal liability shall be investigated in accordance with law.
Article 30 Where a Customs officer neglects his duty, abuses his power, or commits illegalities by fraudulent means for personal gains in providing protection for intellectual property right, and a crime is thus constituted, he shall be investigated for criminal liability in accordance with law; If his act doses not constitute a crime, he shall be given an administrative sanction in accordance with law.
Chapter V Supplementary Provisions
Article 31 The articles carried by a person, or posted, into or out of the territory shall be disposed of by the Customs as infringing goods if the quantity of such articles exceeds the reasonable limit for personal use and such articles have infringed any intellectual property right provided for by Article 2 of these Regulations.
Article 32 These Regulations shall be effective as of March 1,2004. The Regulations of the People's Republic of China on Customs Protection of Intellectual Property Rights promulgated by the State Council on July 5, 1995 shall be repealed simultaneously.
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