Regulations of the People's Republic of China on the Customs Protection of Intellectual Property Rights (Revised in 2010)

Order of the State Council No. 572

March 24, 2010

(Promulgated by the Order of the State Council No. 395 on December 2, 2003; Revised in accordance with the Decision of the State Council on the Revision of the Regulations of the People's Republic of China on the Customs Protection of Intellectual Property Rights on March 24, 2010 and shall come into force as of April 1, 2010)

CHAPTER I: GENERAL PROVISIONS

Article 1 These Regulations have been formulated in accordance with the Customs Law of the People's Republic of China in order to enable the customs protection of intellectual property rights, promote foreign commercial trade and technological and cultural exchange, and safeguard the public interest.

Article 2 For the purpose of these Regulations, "the customs protection of intellectual property rights" refers to the implementation by customs of measures to protect trademarks, copyrights and associated rights, and patent rights relating to import and export goods that are protected by PRC laws and administrative regulations (hereinafter referred to as "intellectual property rights").

Article 3 The state prohibits the import and export of goods that infringe intellectual property rights.
Customs shall implement measures to protect intellectual property rights and exercise the relevant powers stipulated in the Customs Law of the People's Republic of China in accordance with the provisions of relevant laws and these Regulations.

Article 4 Owners of intellectual property rights that seek the assistance of customs in protecting such rights shall submit an application to customs for the adoption of protective measures.

Article 5 Consignees of import goods or their agents and consignors of export goods or their agents shall truthfully declare to customs the details of intellectual property rights related to such import or export goods, and shall submit the relevant supporting documents.

Article 6 When implementing protective measures for intellectual property rights, customs shall maintain the confidentiality of the relevant parties' trade secrets.

CHAPTER II: THE KEEPING OF RECORDS ON INTELLECTUAL PROPERTY RIGHTS

Article 7 Owners of intellectual property rights may apply to the General Administration of Customs for the filing of records on such rights in accordance with the provisions hereof. To apply to have records filed, an application form shall be submitted. The application form shall include the following particulars:
1. The name and registered address or nationality, etc., of the owner of the intellectual property rights;
2. The description and details of and other information relating to the intellectual property rights;
3. Details on the exercise of any license to use the intellectual property rights;
4. The names, places of origin, customs entry and exit points, importers and exporters, major characteristics, and prices, etc. of goods in which the intellectual property rights are lawfully exercised by the owner thereof; and
5. The names of any manufacturers, importers or exporters that are known to have infringed the intellectual property rights, along with details on the customs entry and exit points used, and the major characteristics and prices, etc., of the relevant goods.
Where there are documents supporting the application form details specified in the preceding paragraph, the owner of intellectual property rights shall attach such supporting documents.

Article 8 The General Administration of Customs shall, within 30 working days of receiving all application documents, render a decision on whether to approve the filing of records, and shall notify the applicant in writing. Where approval for the filing of records is not granted, the reasons therefore shall be stated.
The General Administration of Customs shall not approve the filing of records in any of the following circumstances:
1. Where the documents in support of the application are incomplete or invalid;
2. Where the applicant is not the owner of the intellectual property rights concerned; or
3. Where the intellectual property rights concerned are no longer protected by laws or administrative regulations.

Article 9 In the event that customs discovers that an owner of intellectual property rights who has applied for the filing of intellectual property rights records has not provided the relevant details or documents in a truthful manner, the General Administration of Customs may delete its record filing.

Article 10 Records filed for the customs protection of intellectual property rights shall be effective as of the date on which the General Administration of Customs grants approval for the filing of records, and shall be valid for 10 years.
Where the intellectual property rights are valid, the owner of intellectual property rights may, within six months of the date on which the term of validity of records filed for the protection of such rights is due to expire, apply to the General Administration of Customs for an extension of the record filing. The term of validity for any extension of a record filing shall be 10 years.
Where no application for extension has been made upon the expiration of the term of validity for a record filing for the protection of intellectual property rights, or where the intellectual property rights are no longer protected by laws or administrative regulations, the record filing for the protection of such rights shall immediately become invalid.

Article 11 Where changes occur to the particulars of an intellectual property right that have been filed for the record, the intellectual property right holder shall go through formalities for the alteration or cancellation of filing particulars with the General Administration of Customs within 30 working days of the occurrence of such changes.
Where the intellectual property right holder fails to go through formalities for alteration or cancellation in accordance with the preceding paragraph, which seriously affects others' legal import and export or the customs' legal performance of regulatory duties, the General Administration of Customs may revoke relevant record filing upon interested parties' application or may do so on its own initiatives


CHAPTER III: APPLICATIONS FOR THE IMPOUNDMENT OF SUSPECTED INFRINGING GOODS AND THE HANDLING THEREOF

Article 12 Any owner of intellectual property rights who discovers that suspected infringing goods are about to be imported or exported may submit an application for the impoundment of such goods to the customs authority where the goods are to enter or leave China.

Article 13 Any owner of intellectual property rights who requests that customs impound suspected infringing goods shall submit an application form and the relevant supporting documents and provide evidence sufficient to prove a clear infringement.
The application form shall include the following main particulars:
1. The name and registered address or nationality, etc., of the owner of the intellectual property rights;
2. The description, details and other information relating to the intellectual property rights;
3. The names of the consignees and consignors of the suspected infringing goods;
4. The names and specifications, etc., of the suspected infringing goods; and
5. The port via which, the date and time at which and the means of transportation by which the suspected infringing goods may enter or leave China.
Where the suspected infringing goods are goods that are suspected of infringing intellectual property rights for which records have been filed, the application form shall also include the customs record number.

Article 14 Any owner of intellectual property rights who requests that customs impound suspected infringing goods shall provide customs with a guarantee in an amount equivalent to the value of the goods to compensate the consignee or consignor for any loss that may be suffered as a result of an improper application, and for the payment of fees for the storage, custody and disposal, etc., of the goods after they have been impounded by customs. Where an owner of intellectual property rights pays the fees for storage and custody directly to the storage provider, such fees shall be deducted from the amount of the guarantee. The specific procedures shall be formulated by the General Administration of Customs.

Article 15 Where an owner of intellectual property rights who applies for the impoundment of suspected infringing goods satisfies the provisions of Article 13 hereof and provides a guarantee in accordance with Article 14 hereof, customs shall impound the suspected infringing goods, notify the owner of intellectual property rights in writing, and deliver a customs impoundment certificate to the consignee or consignor.
Where an owner of intellectual property rights who applies for the impoundment of suspected infringing goods does not satisfy the provisions of Article 13 hereof or has not provided a guarantee in accordance with Article 14 hereof, customs shall reject the application and notify the owner of intellectual property rights in writing.

Article 16 Where customs discovers import or export goods suspected of infringing intellectual property rights for which records have been filed, it shall immediately notify the owner of the intellectual property rights concerned in writing. Where, within three working days of the date of delivery of the notification, the owner of the intellectual property rights submits an application in accordance with Article 13 hereof and provides a guarantee in accordance with Article 14 hereof, customs shall impound the suspected infringing goods, notify the owner of the intellectual property rights in writing, and deliver a customs impoundment certificate to the consignee or consignor. Where the owner of the intellectual property rights fails, within the specified period of time, to submit an application or provide a guarantee, customs shall not impound the relevant goods.

Article 17 Subject to the agreement of customs, owners of intellectual property rights and their consignees or consignors may inspect the relevant goods.

Article 18 Any consignee or consignor who considers that his goods do not infringe the intellectual property rights of the owner of such rights shall submit a written explanation to customs and attach the relevant evidence.

Article 19 Any consignee or consignor of goods suspected of infringing patent rights who considers that his import or export goods do not infringe such rights may, after providing a guarantee in an amount equivalent to the value of the goods, request that customs release his goods. Where the owner of the intellectual property rights concerned fails to institute legal proceedings in a people's court within a reasonable period of time, customs shall return the guarantee.

Article 20 Where, after customs has discovered import or export goods suspected of infringing intellectual property rights for which records have been filed and has notified the owner of such rights, the owner of the intellectual property rights requests that customs impound the suspected infringing goods, customs shall, within 30 working days of the date of impoundment, investigate and confirm whether the impounded goods infringe the intellectual property rights concerned. Where it is unable to confirm an infringement, it shall immediately notify the owner of the intellectual property rights in writing.

Article 21 Where customs conducts an investigation into impounded suspected infringing goods and requests the assistance of the department responsible for intellectual property rights, the relevant department responsible for intellectual property rights shall provide its assistance.
Where the department responsible for intellectual property rights requests that customs provide assistance in the handling of any rights infringement case involving import or export goods, customs shall provide such assistance.

Article 22 Where customs conducts an investigation into impounded suspected infringing goods and the associated circumstances, the owner of intellectual property rights concerned and the consignee or consignor shall cooperate with the investigation.

Article 23 After an intellectual property right holder applies for taking protective measures with the customs, it may, in accordance with 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 and other relevant laws, apply with the people's court for taking such measures as ordering cessation of infringement or preserving properties in respect of the commodities that are suspected to have infringed others' rights and are detained.
Any customs authority that receives from the people's court a notice requesting its assistance in executing an order that the infringement cease or for the preservation of property shall provide such assistance.

Article 24 Customs shall release impounded suspected infringing goods in any of the following circumstances:
1. Where customs impounds the goods in accordance with Article 15 hereof, and has not received a notice requesting its assistance in executing an order from the people's court within 20 working days of the date of impoundment;
2. Where customs impounds the goods in accordance with Article 16 hereof, and has not received a notice requesting its assistance in executing an order from the people's court within 50 working days of the date of impoundment, and after investigating the suspected infringing goods, cannot confirm that they infringe the intellectual property rights in question;
3. Where the consignee or consignor of goods suspected of infringing patent rights requests that customs release such goods after providing a guarantee in an amount equivalent to the value of the goods; or
4. Where customs considers that the consignee or consignor has sufficient evidence to prove that the goods do not infringe the intellectual property rights of the owner of such rights.
5. Before commodities that are suspected to have infringed others' rights and are detained are determined by the customs to be infringing commodities, the intellectual property right holder withdraws its application for detention of the said suspected commodities.

Article 25 Where customs impounds suspected infringing goods in accordance with the provisions hereof, the owner of the intellectual property rights concerned shall pay the relevant fees for storage, custody and disposal, etc. Where the owner of the intellectual property rights concerned does not pay the relevant fees, customs may deduct such fees from the guarantee he provides to customs, or require the guarantor to meet his relevant obligations under the guarantee.
Where suspected infringing goods are confirmed to have infringed the intellectual property rights concerned, the owner of such rights may include the relevant fees for storage, custody and disposal, etc., of the goods he has paid within his reasonable expenses incurred in securing the cessation of the infringement.

Article 26 Where, in implementing intellectual property rights protections, customs discovers a suspected case of criminal offending, it shall transfer the case to the public security authority to be handled in accordance with the law.

CHAPTER IV: LEGAL LIABILITY

Article 27 Where, following a customs investigation, impounded suspected infringing goods are confirmed to infringe intellectual property rights, customs shall confiscate the goods.
After confiscating goods that infringe intellectual property rights, customs shall notify the owner of the intellectual property rights concerned in writing of the relevant details of the infringing goods.
Where the confiscated commodities that have infringed intellectual property rights can be used in public welfare undertakings, the customs shall forward the said commodities to relevant welfare organizations to be used in public welfare undertakings; where an intellectual property right holder desires to purchase the said commodities, the customs may transfer the same to the intellectual property right holder with consideration. Where the confiscated commodities that have infringed intellectual property rights cannot be used in public welfare undertakings and the intellectual property right holder has no desire to purchase the same, the customs may legally auction the same after their characteristics that infringe others' rights have been eliminated. In respect of imported commodities with passing-off trademarks, except exceptional cases, the mere removal of their trademarks is not sufficient to allow them enter commercial market; where their characteristics that infringe others' rights are unable to be eliminated, they shall be destroyed by the customs.

Article 28 Where, after customs has accepted an application for the filing of records protecting intellectual property rights and for the adoption of protective measures for such rights, the owner of the rights cannot provide precise details and, as a result, goods that infringe the relevant rights are not discovered, or the protective measures are either not adopted in a timely manner or are ineffective, the owner of the intellectual property rights concerned shall be liable for any loss suffered.
Where, after an owner of intellectual property rights has requested that customs impound suspected infringing goods, customs cannot confirm that the impounded goods infringe the intellectual property rights of the owner of such rights, or the people's court rules that the goods do not infringe the intellectual property rights concerned, the owner of the intellectual property rights shall be liable to pay compensation in accordance with the law.

Article 29 Where the import or export of goods that infringe intellectual property rights constitutes a criminal offence, criminal liability shall be pursued in accordance with the law.

Article 30 Where, in implementing intellectual property rights protections, any customs employee is derelict in his duties, abuses his authority or practices graft for personal gain, and his actions constitute a criminal offence, the relevant employee shall be pursued for criminal liability in accordance with the law. Where the employee's actions do not amount to a criminal offence, the employee shall be subject to an administrative penalty in accordance with the law.

CHAPTER V: SUPPLEMENTARY PROVISIONS

Article 31 Where articles brought or posted by individuals into or out of the country exceed the reasonable amount for self use and infringe the intellectual property rights set out in Article 2 hereof, they shall be disposed of as infringing goods.

Article 32 Any owner of intellectual property rights who files records on such rights with the General Administration of Customs shall be liable to pay a record filing fee in accordance with the relevant State provisions.

Article 33 These Regulations shall come into effect as of March 1, 2004. The Regulations for the Customs Protection of Intellectual Property Rights issued by the State Council on July 5, 1995 shall be repealed simultaneously.