Customs enforcement of intellectual property right (IPR) refers to the measures taken by the Customs according to law against the import and export of IPR-infringed goods, and it is also referred to as the Border Measures regarding the IPR in World Trade Organization (WTO)’s Agreement on Trade-Related Aspects of Intellectual Property Rights – TRIPS.
According to Article 2 of the Regulations of the People's Republic of China on Customs Protection of Intellectual Property Rights promulgated by the State Council of the People’s Republic of China (PRC), the intellectual property rights (IPR) protected by China Customs shall refer to exclusive right to use trademark, copyrights and copyright-associated rights, and patent rights relating to import and export goods and protected by PRC laws and administrative regulations. In addition, China Customs shall also protect the Olympic symbols and World Exposition symbols in accordance with the Regulations on the Protection of Olympic Symbols and the Regulations on the Protection of the World Exposition Symbols.
The IPR protection by China Customs may be divided into the two modes of “Protection on Request” and “Protection Ex Officio”:
The Protection on Request refers to the measures taken by the Customs to detain the goods that are suspected of infringement at the request of an IPR holder who applies according to Articles 12, 13 and 14 of the Regulations on Customs Protection of Intellectual Property Rights when such goods are found to be imported or exported. Because the Customs will not investigate the suspected infringing goods that are detained on request, and the IPR holder will therefore have to file a lawsuit with the people’s court for relevant infringement dispute, the Protection on Request is also called Customs “Passive Protection” of the IPR.
The Protection Ex Officio refers to the measures taken by the Customs during their supervision, when they find any import/export goods suspected of infringing any IPR that is registered with the General Administration of Customs, to proactively suspend the customs clearance procedures, inform relevant IPR holders and detain the suspected goods on the request of the IPR holders according to Article 16 of the Regulations on Customs Protection of Intellectual Property Rights, (the term “Ex Officio” comes from the Agreement on Trade-Related Aspects Of Intellectual Property Rights). Because the Customs will proactively use their power of office to deter suspected infringing goods from import and export and have the power to investigate the IPR infringement and impose penalty on the infringers, the Ex-officio protection is also called Customs “proactive protection” of the IPR.
An IPR holder shall, before applying for the Customs ex-officio protection, have its IPR and other information registered with the General Administration of Customs according to Article 7 of the Regulations on Customs Protection of Intellectual Property Rights. The agency to entertain the IPR registration is: the IPR Enforcement Office of the Department of Policy & Legal Affairs under the General Administration of Customs.
For more information on China Customs enforcement of IPR, please visit the “Customs Enforcement of IPR” column of this website (http://www.customs.gov.cn/ipr) or consult the IPR Enforcement Office of the Department of Policy & Legal Affairs under the General Administration of Customs (e-mail: email@example.com).