Regulation of the People's Republic of China on the
Customs Protection of
Intellectual Property Rights
(By Order of the State Council of the People's Republic of China
No. 395, adopted at the 30th executive meeting of the State Council
on November 26, 2003; promulgated and comes into force on March
1, 2004.)
Table of content
Chapter I General Provisions
Chapter II Archival Filing of Intellectual Property Rights
Chapter III Application for and Handling of Detainment of Suspected
Infringing Goods
Chapter IV Legal Liabilities
Chapter V Supplementary Provisions
Chapter I General Provisions
Article 1 The present Regulation is formulated in accordance
with the ˇ°Customs Law of the People's Republic of Chinaˇ± in order
to carry out the customs protection of intellectual property rights,
to promote economic and trade contacts as well as scientific,
technological and cultural contacts with foreign countries, and
to maintain public benefits.
Article 2 Customs protection of intellectual property rights
mentioned in the present Regulation means the protection practiced
by the customs of the rights to exclusive use of trademarks, copyrights
and copyright-related rights, patent rights (hereinafter uniformly
referred to as intellectual property rights), which are related
to imported and exported goods and protected by the laws and administrative
regulations of the People's Republic of China.
Article 3 The State prohibits the import and export of goods
infringing upon intellectual property rights.
The customs shall, in accordance with relevant laws and the present
Regulation, practice protection of intellectual property rights,
and exercise the relevant powers prescribed in the ˇ°Customs Law
of the People's Republic of Chinaˇ±.
Article 4 Where an intellectual property right holder requests
the customs to practice protection of his intellectual property
rights, he shall apply to the customs for taking protective measures.
Article 5 A consignee of imported goods or his agent, or a consigner
of exported goods or his agent shall, in accordance with the provisions
of the State, truthfully declare to the customs the status of
his intellectual property rights related to the imported or exported
goods, and shall submit relevant documents of proof.
Article 6 The customs shall, when practicing protection of intellectual
property rights, keep the commercial secrets of the relevant parties.
Chapter II Archival Filing of Intellectual Property Rights
Article 7 An intellectual property right holder may, in accordance
with the present Regulation, apply to the General Administration
of Customs for archival filing of his intellectual property rights;
if applying for archival filing, he shall submit an application
letter, which shall include the following contents:
(1) the intellectual property right holder's name, and his place
of registration or his nationality, etc.;
(2) the name and contents of as well as the relevant information
on the intellectual property;
(3) the status of permission to exercise the intellectual property;
(4) the name and place of origin of the goods for which the intellectual
property right holder lawfully exercises the intellectual property,
the customs of entry or exit, the importer and exporter, the main
features and the price, etc. of such goods;
(5) the manufacturer, importer and exporter of the goods which
are known to have infringed upon the intellectual property, the
customs of entry or exit, the importer and exporter, the main
features and the price, etc. of such goods.
The intellectual property right holder shall attach a document
of proof, if any, contained in the contents of the application
letter in the preceding paragraph.
Article 8 The General Administration of Customs shall, within
30 working days as of receiving all the application documents,
make a decision on whether or not permitting the archival filing,
and notify the applicant in writing; if it does not permit the
archival filing, it shall state the reason thereof.
In the event of any of the following circumstances, the General
Administration of Customs shall not permit the archival filing:
(1) The application documents are incomplete or invalid;
(2) The applicant is not the intellectual property right holder;
(3) The intellectual property is no longer protected by laws or
administrative regulations.
Article 9 Where the customs finds that an intellectual property
right holder who applies for archival filing for his intellectual
property right does not truthfully provide the relevant information
or documents, the General Administration of Customs may cancel
the archival filing.
Article 10 The archival filing of customs protection of an intellectual
property right shall become valid as of the day when the General
Administration of Customs permits the archival filing, with the
validity period to be 10 years.
Where an intellectual property right is valid, the right holder
may, within 6 months prior to the expiry of the validity period
for the archival filing of customs protection of the intellectual
property right, apply to the General Administration of Customs
for renewal of the archival filing. The validity period for the
renewed archival filing of each time shall be 10 years.
Where an intellectual property right holder does not apply for
renewal at the expiry of the validity period for archival filing
of the customs protection of the intellectual property right,
or the intellectual property right is no longer protected by laws
or administrative regulations, the said archival filing shall
be invalidated immediately.
Article 11 Where an archived intellectual property is changed
in any way, the intellectual property right holder shall, within
30 working days as of such change, modify or nullify the archival
filing in the General Administration of Customs.
Chapter III Application for and Handling of Detainment of Suspected
Infringing Goods
Article 12 Where an intellectual property right holder finds
that any suspected infringing goods are about to be imported or
exported, he may file an application to the customs at place of
entry or exit for detainment of such goods.
Article 13 Where an intellectual property right holder requests
the customs to detain any suspected infringing goods, he shall
submit an application letter and relevant documents of proof,
and provide evidence sufficient to prove the obvious existence
of the infringement facts as well.
An application letter shall include the following main contents:
(1) the intellectual property right holder's name, and his place
of registration or his nationality, etc.;
(2) the intellectual property's name, contents, and relevant
information;
(3) the names of both the consignee and the consigner of the
suspected infringing goods;
(4) the name and specifications, etc. of the suspected infringing
goods; and
(5) the possible port and time of entry or exit of the suspected
infringing goods, and the means of transportation therefor, and
so on.
Where the suspected infringing goods are suspected to infringe
upon an archived intellectual property right, the application
letter shall also include the customs archival filing number.
Article 14 Where an intellectual property right holder requests
the customs to detain any suspected infringing goods, he shall
provide the customs with a guaranty of no less than the equivalent
value of the goods, which shall be used to indemnify the losses
caused to the consignee or consigner due to inappropriate application,
and to pay the warehousing, custody and disposal fees, etc. after
the goods are detained by the customs; if the intellectual property
right holder directly pays warehousing or custody fees to the
warehouseman, such fees shall be deducted from the guaranty. The
specific measures shall be formulated by the General Administration
of Customs.
Article 15 Where an intellectual property right holder who applies
for detainment of any suspected infringing goods conforms to Article
13 of the present Regulation, and has provided a guaranty as required
by Article 14 of the present Regulation, the customs shall detain
the suspected infringing goods, notify the intellectual property
right holder in writing, and serve the customs detainment list
to the consignee or consigner.
Where an intellectual property right holder who applies for detainment
of any suspected infringing goods does not conform to Article
13 of the present Regulation, or fails to provide a guaranty as
required by Article 14 of the present Regulation, the customs
shall reject the application, and notify the intellectual property
right holder in writing.
Article 16 Where the customs finds that any imported or exported
goods are suspected to have infringed upon an archived intellectual
property, it shall immediately notify the intellectual property
right holder in writing. If the intellectual property right holder
files an application in accordance with Article 13 of the present
Regulation and provides a guaranty in accordance with Article
14 of the present Regulation within 3 working days as of service
of the notice, the customs shall detain the suspected infringing
goods, notify the intellectual property right holder in writing,
and serve the customs detainment list to the consignee or consigner.
If the intellectual property right holder fails to file the application
or provide the guaranty within the time limit, the customs shall
not detain the goods.
Article 17 Upon consent of the customs, an intellectual property
right holder and the consignee or consigner may view relevant
goods.
Article 18 Where a consignee or consigner considers that his
goods do not infringe upon the intellectual property right of
the right holder, he shall submit to the customs a written statement
attached with relevant evidence.
Article 19 Where a consignee or consigner who is suspected to
infringe upon patented goods considers that his imported or exported
goods do not infringe upon the patent right, it may, after providing
the customs with a guaranty bond of equivalent value to that of
the goods, request the customs to release his goods. If the intellectual
property right holder fails to bring a lawsuit to the people's
court within a reasonable time, the customs shall refund the guaranty
bond.
Article 20 Where, after the customs has found that any imported
or exported goods are suspected to have infringed upon an archived
intellectual property, and has notified the intellectual property
right holder, while the intellectual property right holder requests
the customs to detain the suspected infringing goods, the customs
shall investigate into and ascertain within 30 working days as
of the detainment whether the detained suspected infringing goods
have infringed upon the intellectual property; if the said goods
are unable to be ascertained, the customs shall immediately notify
the intellectual property right holder in writing.
Article 21 Where the customs investigates into the detained suspected
infringing goods, and requests the administration of intellectual
property rights to provide assistance, the relevant administration
of intellectual property rights shall provide assistance.
Where, when handling an infringement case of imported or exported
goods, the administration of intellectual property rights requests
the customs to provide assistance, the customs shall provide assistance.
Article 22 When the customs is investigating into the detained
suspected infringing goods and other relevant details, the intellectual
property right holder, and the consignee or consigner shall provide
cooperation.
Article 23 An intellectual property right holder may, after filing
an application to the customs for taking protection measures,
apply in accordance with the ˇ°Trademark Law of the People's Republic
of Chinaˇ±, the ˇ°Copyright Law of the People's Republic of Chinaˇ±
or the ˇ°Patent Law of the People's Republic of Chinaˇ± to the people's
court before bringing a lawsuit for taking the measure of ordering
to stop the infringing acts or taking property preservation with
regard to the detained suspected infringing goods.
The customs shall provide assistance if receiving relevant notice
of the people's court on assisting in ordering to stop the infringing
acts or in taking property preservation.
Article 24 In the event of any of the following circumstances,
the customs shall release the detained suspected infringing goods:
(1) the customs detains the suspected infringing goods in accordance
with Article 15 of the present Regulation, but does not receive
the notice of the people's court on assisting execution within
20 working days as of the detainment;
(2) the customs detains the suspected infringing goods in accordance
with Article 16 of the present Regulation, but does not receive
the notice of the people's court on assisting execution within
50 working days as of the detainment, and the detained suspected
infringing goods cannot be ascertained upon investigation to have
infringed upon any intellectual property;
(3) the consignee or consigner of the goods which are suspected
to have infringed upon a patent right requests, after providing
the customs with a guaranty bond of equivalent value to that of
the goods, the customs to release the goods;
(4) the customs considers that the consignee or consigner has
sufficient evidence to prove that the goods have not infringed
upon the intellectual property right holder's intellectual property.
Article 25 Where the customs detains any suspected infringing
goods in accordance with the present Regulation, the intellectual
property right holder shall pay relevant warehousing, custody
and disposal fees, etc. If the intellectual property right holder
has not paid the relevant fees, the customs may deduct them from
the guaranty bond provided to itself, or requests the guarantor
to perform the relevant guaranty responsibilities.
Where the suspected infringing goods are deemed to have infringed
upon an intellectual property, the intellectual property right
holder may calculate the relevant warehousing, custody and disposal
fees, etc. he has paid into the reasonable expenditures for stopping
the infringing acts.
Article 26 Where the customs finds any suspected criminal case
when carrying out the protection of intellectual property rights,
it shall transfer the case in accordance with the law to the public
security organ for handling.
Chapter IV Legal Liabilities
Article 27 Where any detained suspected infringing goods are
ascertained to have infringed upon an intellectual property right
after the investigation of the customs, they shall be confiscated
by the customs.
The customs shall, after confiscating the goods infringing upon
an intellectual property right, inform the intellectual property
right holder in writing of the relevant information on the said
goods.
Where the confiscated goods infringing upon an intellectual property
are used for the commonweal undertaking, the customs shall deliver
them to the relevant commonweal institutions for the purposes
of commonweal undertaking; if the intellectual property right
holder has the intent of purchase, the customs may transfer the
goods to the intellectual property right holder non-gratuitously.
If the confiscated goods infringing upon an intellectual property
right are unable to be used for the commonweal undertaking and
the intellectual property right holder has no intent of purchase,
the customs may lawfully auction them after the infringement features
have been eliminated; and if the infringement features are unable
to be eliminated, the customs shall destroy such goods.
Article 28 Where an individual brings or mails articles of entry
or exit by exceeding the quantity for self-use or the reasonable
quantity, and infringes upon an intellectual property prescribed
in Article 2 of the present Regulation, the customs shall confiscate
such articles.
Article 29 Where, after accepting an application for archival
filing of intellectual property protection or for taking measures
of protecting an intellectual property, the customs fails to find
the infringing goods, or fails to timely take protection measures
or takes poor protection measures due to the fact that the intellectual
property right holder fails to provide exact information, the
intellectual property right holder shall bear the liabilities
by itself.
Where, after the intellectual property right holder requests
the customs to detain the suspected infringing goods, the customs
is unable to ascertain that the detained suspected infringing
goods have infringed upon the intellectual property right holder's
intellectual property, or the people's court rules that the said
goods have not infringed upon the intellectual property right
holder's intellectual property right, the right holder shall bear
the indemnity liabilities in accordance with the law.
Article 30 Whoever imports or exports any goods infringing upon
an intellectual property right which constitute a crime shall
be subject to criminal liabilities in accordance with the law.
Article 31 Where any customs functionary neglects his duties,
abuses his powers or practices frauds for personal gains when
carrying out protection of intellectual property rights, and a
crime is constituted, he shall be subject to criminal liabilities
in accordance with the law; if no crime is constituted, he shall
be imposed upon administrative sanctions in accordance with the
law.
Chapter V Supplementary Provisions
Article 32 Where an intellectual property right holder has his
intellectual property archived in the General Administration of
Customs, he shall pay the archival filing fee in accordance with
relevant provisions of the State.
Article 33 The present Regulation shall come into force on March
1, 2004. The ˇ°Regulation of the People's Republic of China on
Customs Protection of Intellectual Property Rightsˇ± promulgated
by the State Council on July 5, 1995 shall be abrogated simultaneously.
