Regulations of the People's Republic of China Regarding Customs Protection of Intellectual Property Rights

Chapter I General Provisions

Article 1

With a view to effecting the protection of intellectual property by the customs authorities, promoting the economic, trade, scientific, technical and cultural exchanges with foreign countries, and safeguarding the public interest of society, these Regulations are formulated on the basis of the relevant laws of the People's Republic of China.

Article 2

These Regulations apply to intellectual property rights related to import and export goods and protected by the laws and administrative regulations of the People's Republic of China, including the exclusive right to use a trademark, copyright and patent right.

Article 3

Goods which infringe the intellectual property rights protected by the laws and administrative regulations of the People's Republic of China are prohibited from import or export.

Article 4

The customs authorities of the People's Republic of China give protection to intellectual property rights related to import and export goods and exercise the relevant powers provided by the Customs Law of the People's Republic of China.

Article 5

Consignees of import goods or consigners of export goods and their agents (referred to below as consignees or consigners) shall, in accordance with the requirements of the customs authorities, declare to the said authorities the state of the intellectual property rights related to the import or export goods and submit the relevant documents for examination.

Article 6

Owners of intellectual property rights and their agents (referred to below as intellectual property right owners) who request the Customs to protect their intellectual property rights related to import or export goods shall report their intellectual property rights to the Customs for the record and, where they deem it necessary, file applications with the Customs for adopting protective measures.

Article 7

In protecting intellectual property rights, the Customs shall preserve the trade secrets of the relevant parties.

Chapter II Putting on Record

Article 8

An intellectual property right owner applying for putting on record the protection of his intellectual property right by the Customs shall file a written application with the General Administration of Customs.
The application shall include the following contents:

(1) the trade name or personal name of the intellectual property owner, place of registration or nationality, residence, legal representative, and main business office;
(2) the registration number, content and period of validity of the registered trademark, the number, content and duration of the patent granted, or the content of the copyright;
(3) the designation and origin of the goods related to the intellectual property right;
(4) the person who is granted the intellectual property right or who is licensed to use the intellectual property;
(5) relevant information about the goods related to the intellectual property right, such as their main customs house of entry or exit, their importer or exporter, their principal features and their normal price;
(6) the manufacturer, importer or exporter, main customs house of entry or exit, principal features and price of the known infringing goods;
(7) other circumstances which the General Administration of Customs holds should be explained.
The following documents shall be attached when the written application is filed:
(1) a copy of the certificate of identity of the intellectual property right owner, or a duplicate of the certificate of registration, or a copy authenticated by the organ of registration;
(2) a copy of the registration certificate of the registered trademark, a copy of the announcement by the Trademark Office approving the assignment of the registered trademark or of the trademark licence contract on file at the Trademark Office; or a copy of the patent certificate, a duplicate of the patent assignment contract registered and announced by the Patent Office, a copy of the licence contract for exploitation of the patent; a certifying document or proof of the rights pertaining to the copyright;
(3) other documents which the General Administration of Customs holds should be attached.

Article 9

The General Administration of Customs shall, within 30 days from the date of receipt of all the application documents, inform the applicant whether his application for having his intellectual property right put on record is approved. Where the General Administration of Customs approves his application, it shall issue him with a certificate of record of customs protection for intellectual property right; where the General Administration does not approve his application, it shall explain the reason to him.

Article 10

The record of customs protection for an intellectual property right shall come into effect from the date of approval by the General Administration of Customs for the relevant application. The period of validity of the record is 7 years.

On the premise that the intellectual property right is valid, the owner of the intellectual property right may, within 6 months before the expiration of the period of validity of the record of customs protection for the intellectual property right, apply to the General Administration of Customs for renewal of the record. The period of validity of each renewal of the record is 7 years.

Where no renewal is applied for on expiration of the record of customs protection for the intellectual property right, or where the period of legal protection for the exclusive right to use a trademark, the copyright or the patent right expires, the record of customs protection for the intellectual property right will lose its effect immediately.

Article 11

Where the state of the intellectual property right on record changes, the owner of the intellectual property right shall, within 10 days from the date of approval for the change by the department responsible for that category of intellectual property, go through the formalities for the change or cancellation of the record at the General Administration of Customs.

Chapter III Application

Article 12

Where the owner of the intellectual property right put on record at the General Administration of Customs discovers that suspected infringing goods are about to be imported or exported, he may file an application with the Customs in the place of import or export of the goods for adopting measures to protect the intellectual property right.

Article 13

In requesting the Customs to adopt measures for protecting the intellectual property right, a written application shall be filed.
The application shall include the following contents:

(1) the designation of the intellectual property right and its record number at the Customs;
(2) the name, residence, legal representative and main business office of the suspected infringer;
(3) relevant information on the suspected infringing goods, such as their designation and specifications;
(4) relevant information on the suspected infringing goods, such as the port where they may be imported or exported, the time, the means of transport, and the consignee or consigner;
(5) proof of infringement;
(6) the measures that the Customs is requested to adopt;
(7) other details which the Customs holds need to be supplied.

Article 14

Where the applicant requests the Customs to detain the suspected infringing goods, he shall submit to the General Administration of Customs a surety equivalent to the CIF price of the import goods or the FOB price of the export goods.

Article 15

Where an intellectual property right owner requests the Customs to adopt protective measures for his intellectual property right which has not been put on record at the General Administration of Customs, he should, at the same time as filing an application with the General Administration of Customs, go through the formalities for putting on record the protection of his intellectual property right by the Customs at the General Administration of Customs.

Article 16

Where the application filed by the applicant for adopting measures to protect his intellectual property right is not in conformity with the provisions of this Chapter, the Customs shall not accept the application.

Chapter IV Investigating and Dealing with Infringement

Article 17

Where, in response to the application of the intellectual property right owner, the Customs decides to detain the suspected infringing goods, it should draw up a warrant for customs detention, serve it on the consignee or consigner, and notify the applicant in writing.

Where the consignee or consigner does not consider that his import or export goods infringe on the intellectual property right of the applicant, he should, within 7 days from the date of service of the warrant for customs detention, submit a written explanation to the Customs. Where no objection is raised by the consignee or consigner, the Customs has the power, after investigation, to dispose of the suspected infringing goods as infringing goods; where an objection is raised, the Customs shall immediately notify the applicant in writing.

The applicant has the right, within 15 days from the date of service of the written notice provided for in Section 1 of this Article, to submit the infringement dispute to the department responsible for that category of intellectual property to be dealt with, or institute proceedings in the People's Court.

Article 18

Where the Customs finds that a consignment of import or export goods is suspected of infringing on an item of intellectual property right on record at the Customs, it has the power to detain the goods. Where the Customs detains a consignment of suspected infringing goods, it shall draw up a warrant for customs detention, serve it on the consignee or consigner, and immediately notify the intellectual property right owner in writing. Where the intellectual property right owner files a written application for intellectual property right protection within 3 days from the date of service of the notice, the matter shall be handled according to the provisions of Article 17 of these Regulations.

Article 19

Where the consignee or consigner holds that his import or export goods do not infringe on the intellectual property right of the applicant, he may, after submitting to the Customs a surety amounting to twice the CIF price of the import goods or the FOB price of the export goods, request the Customs to release the relevant goods.

Article 20

Where the Customs detains suspected infringing goods in accordance with the provisions of Articles 17 and 18 of these Regulations, it shall, within 15 days from the date of detention, begin to investigate the suspected infringing goods detained and the related circumstances except, however, where one of the relevant parties to the infringement dispute has submitted the dispute to the department responsible for that category of intellectual property to be dealt with, or has instituted proceedings in the People's Court.
Where the Customs suspect a criminal act, the matter shall be turned over to relevant organs for investigation.

Article 21

When the Customs investigate the suspected infringing goods detained and the related circumstances, the intellectual property right owner shall render assistance where necessary.

Article 22

The Customs may, in one of the following events, release the suspected infringing goods detained:

(1) where the suspicion of infringement is eliminated after investigation by the Customs or the department responsible for that category of intellectual property;
(2) where the decision or ruling of the People's Court eliminates the suspision of infringement;
(3) where none of the relevant parties institutes proceedings in the People's Court within the prescribed period of time, where the People's Court rules that the case shall not be accepted and heard, or where the People's Court does not make a ruling which orders preservative measures to be taken;
(4) where the intellectual property right owner makes no response within the prescribed period of time or abandons the customs protection for his intellectual property right.

Article 23

Where the suspected infringing goods detained are found to be infringing goods by the Customs, the department responsible for that category of intellectual property, or the People's Court, they shall be confiscated by the Customs.

Article 24

The Customs shall dispose of the infringing goods confiscated by distinguishing between different circumstances and in accordance with the following provisions:

(1) Goods infringing on copyright shall be destroyed.
(2) In respect of goods infringing on the exclusive right to use a trademark, they shall be destroyed where the infringing mark cannot be removed; where the infringing mark can be removed and the relevant goods can be used, the infringing mark shall be removed and the relevant goods may only be used in public welfare undertakings in society or sold by auction according to law to a non-infringer for his owner use.
(3) other infringing goods than those provided for in the above two sections shall be disposed of according to the relevant provisions of the State Council.

Article 25

After the decision of the Customs, the decision of the department responsible for that category of intellectual property or the decision or ruling of the People's Court comes into effect, the Customs shall return the surety submitted by the relevant party after deducting the following expenses:
(1) expenses related to the storage, custody and disposal of the goods;
(2) compensation for losses caused to a relevant party by the application which is found to be improper.

Article 26

Any civil dispute between the intellectual property owner and the consignee or consigner shall be settled by the parties by choosing from the judicial, arbitrational or other modes according to law, but shall not be accepted by the Customs for handling.

Article 27

Where, after accepting applications for putting on record customs protection of intellectual property rights and for adopting intellectual property right protection measures, the Customs are unable to discover the infringing goods, unable to adopt protective measures in time, or adopt improper protective measures because the intellectual property right owners fail to provide exact information, the responsibility shall not be borne by the Customs but by the intellectual property right owners themselves.

Chapter V Legal Responsibility

Article 28

Where the consignee or consigner clearly knows or should know that his import or export goods infringe on the intellectual property right of another person, the Customs may impose on him a fine less than the equivalent of the CIF price of the import goods or the FOB price of the export goods.

Article 29

Where the consignee or the consigner fails to declare the state of intellectual property right relevant to the import or export goods and submit the relevant documents for examination, the Customs may impose on him a fine less than the equivalent of the CIF price of the import goods or the FOB price of export goods.

Article 30

Where a party is not satisfied with the decision of the customs on punishment, he may apply to the Customs making the decision on punishment or to the Customs of the next higher level for reconsideration of the decision within 30 days from the date of receipt of the notice of punishment or, where the Customs is unable to notify him, within 30 days from the date of announcement of the decision of the Customs on punishment; the relevant Customs shall, within 90 days from the date of receipt of the application for reconsideration, make a reconsideration decision. Where the party is not satisfied with the reconsideration decision, he may institute proceedings in the People's Court within 30 days from the date of receipt of the reconsideration decision.

The party may also directly institute proceedings in the People's Court within 30 days from the date of receipt of the notice of punishment or the date of announcement of the decision of the Customs on punishment.

Article 31

Anyone who imports or exports infringing goods, constituting a crime, shall be prosecuted for his criminal responsibility according to law.

Article 32

Any customs official who, in carrying out intellectual property right protection, abuses his powers, deliberately makes things difficult for others, neglects his duty, practises favouritism and acts irregularly, constituting a crime, shall be prosecuted for his criminal liability according to law, where his acts have not yet constituted a crime, he shall be disciplined administratively.

Chapter VI Supplementary Provisions

Article 33

Where the luggage and articles carried by an individual entering or leaving the country or articles mailed by an individual into or out of the country exceed a reasonable quantity for personal use and infringe on intellectual property rights protected by the law and administrative regulations of the People's Republic of China, they shall be deemed to be infringing goods and be disposed of according to the relevant provisions of these Regulations.

Article 34

In carrying out intellectual property right protection, the Customs may charge a fee for putting on record the said protection, and also the necessary fees related to the detention and disposal of infringing goods. The specific schedules shall be prescribed by the General Administration of Customs jointly with the department in charge of financial affairs and the department responsible for prices under the State Council.

Article 35

The specific provisions and the forms of the relevant documents for applying for customs protection of intellectual property rights and for adopting customs protection measures for intellectual property rights shall be laid down by the General Administration of Customs

Article 36

These Regulations shall enter into force as of 1 October 1995.