Border enforcement by Customs

The Regulations of the People's Republic of China on the Customs' Protection of Intellectual Property Rights were promulgated by the State Council 5 July 1995 and entered into effect 1 October 1995.

Scope of application

The Customs Regulations forbid the import or export of goods protected by Chinese laws and regulations including trademark, patent and copyright. The trademark or patent owners or their agents are first required to record their intellectual property (IP) rights with Customs.

Record entry

IP rights owners must submit to the General Administration of Customs a written application including the following details:

information about the applicant ;
information about the suspected infringing goods and the infringer (if possible);
the Customs HS Code of suspected infringing products in the Customs declaration;
certificate of intellectual property rights: a copy of the Chinese trademark registration certificate, patent certificate or copyright certificate;
a copy of the applicant's business licence or business registration certificate;
clear colour photographs of the authentic or suspected infringing goods;
a concise description of the features of the suspected infringing goods;
a statement on disputes and documents for current litigation, cancellation and revocation actions, etc;
a list of other parties using the IP rights in a legitimate way including the licencee and the trustees.
the Customs shall notify the applicant whether the application is admitted for entry in the records within 30 days after receiving all the application documents.

Period of validity

The period of validity shall be seven years counted from the day the record entry is admitted by the General Administration of Customs Office.

Subject to the validity of IP, the intellectual property owner may apply for a renewal of the record entry within six months before the period of validity of the record expires . The period of validity for each renewal of the record entry shall be seven years.

The record entry of the customs' protection shall expire when the period of validity of the registration for the trademark, patent or copyright recorded expires.

Application for protection measures

IP right owners whose rights have been entered in the record of the Customs General shall file an application with the customs, located in the place of import or export of the suspected infringing products, to detain the goods and submit the guarantees equal to the CIF value of the imported goods or the FOB value of the exported goods when they consider it necessary.

The customs may detain the suspected infringing goods based on the request of the intellectual property owner; it can also initiate ex officio action to detain suspected infringing goods and notify the IP owner in writing.

If the IP owner who applies to the customs to take protection measures has not recorded his right with the Customs General, he shall undertake the formalities of recording the IP in accordance with the Regulation at the same time as he applies to the Customs General for protection measures.

Protection measures

If the consignee or consignor of the detained goods does not file an objection with the customs on detention, the customs has the power to:

confiscate infringing goods;
destroy the goods infringing a trademark, unless the infringing trademark can be removed from the goods;
fine the infringer who imports or exports the infringing goods intentionally;
transfer proceedings against the offender, whose act of importing or exporting goods infringing IP rights constitutes a crime, to the judicial authorities for investigation.

Rights of the suspected infringer and the IP rights owner

The consignee or consignor of seized goods has seven days from the date of being served with a Customs Detaining Receipt to raise an objection to the customs' seizure.
The IP owner has 15 days from the date of being served a written notification from the Customs Department to apply to the appropriate authorities handling IP for remedies or to commence action in the People's Court.
A consignee or consignor of detained goods, who alleges that his goods do not infringe any IP rights, may apply for clearance of the goods. A bail bond in the amount equal to twice the CIF value of the imported goods or twice the FOB value of the exported goods shall be provided.

(Editor's note: Mr Fan Weimin can be contacted the following address at: 10/F,Ocean Plaza,158 Fuxingmennei Street, Beijing 100031, China. Tel: 0086 10 6641 2345 Fax: 0086 10 6641 5678)