Implementing Measures for the «PRC Regulations for Customs Protection of Intellectual Property Rights»

Article 2: If an intellectual property rights holder wishes to request that customs take measures to protect its/his/her intellectual property rights or to carry out record filing for the purposes of customs protection of intellectual property rights with the General Administration of Customs, it/he/she may apply directly or appoint a domestic agent to do so on its/his/her behalf, if it/he/she is a domestic intellectual property rights holder; or have its/his/her office in China submit the application or appoint a domestic agent to do so on its/his/her behalf, if it/he/she is an overseas intellectual property rights holder.

If an intellectual property rights holder appoints a domestic agent to submit the application on its/his/her behalf in accordance with the preceding paragraph, it/he/she shall issue a power of attorney in the prescribed format.

Article 3: If an intellectual property rights holder or its/his/her agent (hereafter collectively referred to as IPR Holders) requests that customs detain alleged infringing goods that are about to be imported or exported, it/he/she shall submit to customs an application for the detention of alleged infringing goods pursuant to relevant provisions hereof.

Article 4: The consignee/consignor of import/export goods or its agent (hereafter collectively referred to as the Consignee/Consignor) shall, to a reasonable extent, know the details of intellectual property rights of the goods it is importing or exporting. If customs requires declaration of details of intellectual property rights of import or export goods, the Consignee/Consignor shall do so truthfully and submit the relevant supporting documentation to customs within the period of time specified by customs.

Article 5: If the relevant documentation or evidence submitted by an IPR Holder or a Consignee/Consignor involves trade secrets, the IPR Holder or the Consignee/Consignor shall state the same to customs in writing.

When implementing intellectual property rights protection, customs shall protect the trade secrets of the relevant parties, with the exception of information that customs shall make public in accordance with the law.

Part Two: Record filing of intellectual property rights

Article 6: When an IPR Holder applies to the General Administration of Customs for record filing for the purpose of customs protection of intellectual property rights, it/he/she shall submit an application letter to the General Administration of Customs. Such application letter shall contain the following information:

(1) the IPR Holder's name, place of registration or nationality, correspondence address, and the name, telephone and fax number, e-mail address, etc. of the contact person;

(2) the name of the registered trade mark, the class and description of goods for which it is designated, a figure of the trade mark, term of registration, details on the assignment, amendment and renewal of the trade mark, etc.; the title of the work, the date of its completion, the type of work, a picture of the work, details on the assignment and amendment of the work, etc.; the name and type of the patent, the filing date, details on the assignment and amendment of the patent, etc.;

(3) the name of the licencee, the goods to which the licence applies, the licence term, etc.;

(4) the description of the goods on which the IPR Holder lawfully exercises the intellectual property rights, their origin, customs of the place where they enter or exit China, importer or exporter, main features, price, etc.; and

(5) the manufacturer and importer or exporter of the goods infringing intellectual property rights, customs of the place where they enter or exit China, main features, price, etc. as known.

The IPR Holder shall submit one separate application letter for each item of intellectual property rights it/he/she is applying to place on the record. If the IPR Holder is applying for the record filing of an internationally registered trade mark, it/he/she shall submit one separate application letter for each class of goods for which it/he/she is applying.

Article 7: When the IPR Holder submits the application letter for record filing to the General Administration of Customs, it/he/she shall provide the following documents and evidence:

(1) a photocopy of his/her/its proof of identity or business licence or other registration document;

(2) (a) a photocopy of the Trade mark Registration Certificate issued by the Trade mark Office of the State Council's administration of industry and commerce; if the applicant has amended particulars of the trade mark registration, renewed trade mark registration or assigned the registered trade mark following approval or is applying for record filing of an internationally registered trade mark, it/he/she shall additionally submit the proof of the relevant trade mark registration issued by the Trade mark Office of the State Council's administration of industry and commerce; (b) a photocopy of the proof of voluntary copyright registration issued by the copyright registration department and photographs certified by the copyright registration department of the work; if the applicant has not carried out voluntary registration, it/he/she shall submit a sample of the work evidencing that it/he/she is the copyright holder and other evidence of copyright; or (c) a photocopy of the patent certificate issued by the State Council's patent administrative department; if more than one year has elapsed from the date of gazetting of the patent grant, it/he/she shall additionally submit a duplicate of the patent register issued by the State Council's patent administrative department within six months before the applicant submitting the record filing application; if an application is made for the record filing of a utility model patent or design patent, it/he/she shall additionally submit the patent evaluation report issued by the State Council's patent administrative department;

(3) if it/he/she has licensed a third party to use the registered trade mark or the work, or to exploit the patent and executed a licensing contract in respect thereof, a photocopy of the licensing contract; if no licensing contract was executed, a written account of the details of the licencee, the scope of the licence and licence term, etc.;

(4) photographs of the goods on which it/he/she lawfully exercises the intellectual property rights and their packaging;

(5) evidence of the import or export of the infringing goods as known; if an infringement dispute between the IPR Holder and a third party has been dealt with by a people's court or competent intellectual property rights department, photocopies of the relevant legal documents shall also be submitted; and

(6) other documents or evidence that the General Administration of Customs deems necessary to submit.

The documents and evidence submitted to the General Administration of Customs by the IPR Holder in accordance with the preceding paragraph shall be complete, true and valid. If a relevant document or piece of evidence is in a foreign language, a Chinese language translation thereof shall be provided. If it deems it necessary, the General Administration of Customs may require the IPR Holder to provide notarised or authenticated versions of the relevant documents or evidence.

Article 8: When an IPR Holder applies to the General Administration of Customs for record filing for the purpose of customs protection of intellectual property rights or, after its/his/her record filing becomes invalid, applies to the General Administration of Customs anew for record filing, it/he/she shall pay a record filing fee. The IPR Holder shall remit the record filing fee through a bank into the account designated by the General Administration of Customs. Once the General Administration of Customs receives the record filing fee, it shall issue a receipt therefor. The rate for the record filing fee shall be formulated separately by the General Administration of Customs in concert with relevant state departments and published.

When an IPR Holder applies for renewal or amendment of a record filing, it/he/she shall not be required to pay the record filing fee again.

If an IPR Holder withdraws its/his/her record filing application before approval by the General Administration of Customs or its/his/her application is rejected, the General Administration of Customs shall refund the record filing fee. If a record filing approved by the General Administration of Customs is cancelled or revoked by the General Administration of Customs or otherwise becomes invalid, the record filing fee will not be refunded.

Article 9: A record filing for the purpose of customs protection of intellectual property rights shall enter into effect on the date of approval of the record filing by the General Administration of Customs and be valid for 10 years. If the term of validity of the intellectual property rights is less than 10 years from the effective date of the record filing, the term of validity of the intellectual property rights shall be the term of validity of the record filing.

The term of validity of record filings and renewals of record filings approved by the General Administration of Customs before the implementation of the Regulations shall continue to be counted based on their existing terms of validity.

Article 10: An IPR Holder may submit an application in writing to renew its/his/her record filing for the purpose of customs protection of intellectual property rights and relevant documents to the General Administration of Customs within six months before the expiration of the term of validity of the record filing. The General Administration of Customs shall render its decision on whether or not to grant renewal and notify the IPR Holder thereof in writing within 10 working days from the date of receipt of all of the renewal application documents. If it withholds its approval, it shall give the reason therefor.

The term of validity of a renewed record filing shall be 10 years counting from the day immediately following the expiration of the preceding term of validity. If the term of validity of the intellectual property rights is less than 10 years counting from the day immediately following the expiration of the preceding term of validity of the record filing, the term of validity of the intellectual property rights shall be the term of validity of the renewed record filing.

Article 11: If there is a change in the information on the application letter submitted to the General Administration of Customs in accordance with Article 6 hereof after approval by the General Administration of Customs of the record filing for the purpose of customs protection of intellectual property rights, the IPR Holder shall submit an application for amendment of record filing and relevant documents to the General Administration of Customs within 30 working days from the date on which the change occurred.

Article 12: If intellectual property rights cease to be subject to the protection of laws or administrative regulations before the expiration of the term of validity of the record filing or if the intellectual property rights that have been placed on the record are assigned, the original IPR Holder shall submit to the General Administration of Customs an application for the cancellation of its/his/her record filing for the purpose of customs protection of intellectual property rights and relevant documents within 30 working days from the date on which the intellectual property rights ceased to be protected by laws or administrative regulations or the effective date of the assignment. If an IPR Holder wishes to relinquish its/his/her record filing during the term of validity thereof, it/he/she may apply to the General Administration of Customs for cancellation of record filing.

If an IPR Holder fails to apply to the General Administration of Customs for amendment or cancellation of record filing pursuant to Article 11 hereof or the preceding paragraph of this Article, thereby seriously affecting lawful importing or exporting by a third party, the General Administration of Customs may, at is own discretion or pursuant to an application by the relevant materially interested party, cancel the record filing of the relevant intellectual property rights.

When the General Administration of Customs cancels the record filing, it shall notify the relevant IPR Holder thereof in writing and the record filing for the purpose of customs protection of intellectual property rights shall become invalid from the date of cancellation by the General Administration of Customs.

Article 13: When the General Administration of Customs revokes a record filing for the purpose of customs protection of intellectual property rights pursuant to Article 9 of the Regulations, it shall notify the IPR Holder thereof in writing.

If the General Administration of Customs revokes a record filing and the IPR Holder again applies, within one year from the date of revocation of the record filing, for record filing of the intellectual property rights the record filing of which was revoked, the General Administration of Customs may refuse to accept such application.

Part Three: Detention pursuant to application

Article 14: If an IPR Holder discovers that alleged infringing goods are soon to be imported or exported and requests that customs detain the same, it/he/she shall submit an application to customs of the place where the goods are to enter or exit China in accordance with Article 13 of the Regulations. If the relevant intellectual property rights have not been placed on the record with the General Administration of Customs, the IPR Holder shall additionally provide the documents and evidence specified in Items (1) and (2) of the first paragraph of Article 7 hereof.

If the IPR Holder requests that customs detain the alleged infringing goods, it/he/she shall additionally submit to customs evidence sufficient to show that the fact of infringement clearly exists. The evidence submitted by the IPR Holder shall be able to substantiate the following facts:

(1) that the goods it/he/she has requested customs detain are soon to be imported or exported; and

(2) that a trade mark representation that infringes its/his/her exclusive right to use the trade mark or its/his/her work is used for the goods without a licence or that the goods involved the exploitation of its/his/her patent without a licence.

Article 15: When an IPR Holder requests that customs detain alleged infringing goods, it/he/she shall provide to customs security equivalent to the value of the goods within the period of time specified by customs.

Article 16: If the application submitted by an IPR Holder does not comply with Article 14 hereof or if it/he/she fails to provide security in accordance with Article 15 hereof, customs shall reject its/his/her application and notify it/him/her thereof in writing.

Article 17: When customs detains alleged infringing goods, it shall notify the IPR Holder in writing of the description, quantity and value of the goods, the name of the Consignee/Consignor, the date of the import or export declaration, the date of detention by customs, etc.

Subject to the consent of customs, the IPR Holder may examine the goods detained by customs.

Article 18: If, within 20 working days from the date on which it detained the same, customs receives a written notice from the people's court requesting its assistance in impounding the alleged infringing goods, it shall give such assistance. If it does not receive a notice from the people's court requesting assistance in impounding the goods or if the IPR Holder requests that customs release the relevant goods, customs shall release the goods.

Article 19: If customs detains the alleged infringing goods, it shall serve the detention note for the detained alleged infringing goods on the Consignee/Consignor.

Subject to the consent of customs, the Consignee/Consignor may examine the goods detained by customs.

Article 20: If, pursuant to Article 19 of the Regulations, the Consignee/Consignor requests that its detained goods suspected of infringing a patent be released, it shall submit a written application to customs and provide a security deposit equivalent to the value of the goods.

If the Consignee/Consignor requests that customs release the goods suspected of infringing the patent and complies with the preceding paragraph, customs shall release the goods and notify the IPR Holder thereof in writing.

If the IPR Holder institutes a legal action in a people's court in respect of the relevant patent infringement dispute, it/he/she shall submit to customs a photocopy of the case acceptance notice from the people's court within 30 working days from the date of service of the written notice from customs specified in the preceding paragraph.

Part Four: Ex officio investigation and handling

Article 21: If, in the course of oversight of import and export goods, customs discovers import or export goods that involve intellectual property rights that are on record with the General Administration of Customs and the use of the relevant intellectual property rights by the importer, exporter or manufacturer has not been placed on the record with the General Administration of Customs, it may require the Consignee/Consignor to report on the details of intellectual property rights of the goods and submit the relevant supporting documentation within a specified period of time.

If the Consignee/Consignor fails to report on the details of the intellectual property rights and/or submit the relevant supporting documentation in accordance with the preceding paragraph, or if customs has grounds to suspect that the goods infringe intellectual property rights that are on the record with the General Administration of Customs, it shall suspend release of the goods and notify the IPR Holder thereof in writing.

Article 22: Within three working days from the date of service of the written notice from customs specified in Article 21 hereof, the IPR Holder shall respond in accordance with the following provisions:

(1) if it/he/she believes that the relevant goods infringe its/his/her intellectual property rights on the record with the General Administration of Customs and requests that customs detain the same, it/he/she shall submit a written application for the detention of the alleged infringing goods to customs and provide security in accordance with Article 23 or 24 hereof; or

(2) if it/he/she believes that the relevant goods do not infringe its/his/her intellectual property rights on the record with the General Administration of Customs or does not request that customs detain the same, it/he/she shall give the reason therefor to customs in writing.

Subject to the consent of customs, the IPR Holder may examine the relevant goods.

Article 23: If the IPR Holder requests that customs detain the alleged infringing goods pursuant to Item (1) of the first paragraph of Article 22 hereof, it/he/she shall provide security to customs in accordance with the following provisions:

(1) if the goods have a value of less than Rmb20,000, it/he/she shall provide security equivalent to the value of the goods;

(2) if the goods have a value of Rmb20,000 to Rmb200,000, it/he/she shall provide security equivalent to 50% of the value of the goods, however the amount of a security deposit may not be less than Rmb20,000; or

(3) if the goods have a value exceeding Rmb200,000, it/he/she shall provide security in the amount of Rmb100,000.

If, pursuant to Item (1) of the first paragraph of Article 22 hereof, an IPR Holder requests that customs detain goods alleged to infringe its/his/her exclusive right to use a trade mark, it/he/she may provide general security to the General Administration of Customs in accordance with Article 24 hereof.

Article 24: Subject to the approval of the General Administration of Customs, an IPR Holder that has its/his/her exclusive right to use a trade mark on the record with the General Administration of Customs may submit to the General Administration of Customs a guarantee issued by a bank or non-bank financial institution to serve as general security for the applications it/he/she makes to customs for measures for customs protection of its/his/her exclusive right to use the trade mark.

The amount of the general security shall be equivalent to the total of the warehousing, custody and disposal charges incurred after the IPR Holder applied to customs for the detention of alleged infringing goods the preceding year. If the IPR Holder did not apply to customs to detain alleged infringing goods the preceding year or if the warehousing, custody and disposal charges were less than Rmb200,000, the amount of the general security shall be Rmb200,000.

If, during the period between the General Administration of Customs's approving its/his/her use of general security and December 31 of the same year, the IPR Holder requests customs to detain import or export goods suspected of infringing its/his/her exclusive right to use a trade mark on the record with the General Administration of Customs, it/she shall not be required to provide other security, unless the General Administration of Customs issues to the guarantor a notice to perform its security obligations due to the IPR Holder's failure to pay relevant costs pursuant to Article 25 of the Regulations or its/his/her failure to bear liability for damages pursuant to Article 29 of the Regulations.

Article 25: If the IPR Holder submits an application pursuant to Item (1) of the first paragraph of Article 22 hereof and provides security pursuant to Article 23 or 24 hereof, customs shall detain the alleged infringing goods and notify the IPR Holder thereof in writing. If the IPR Holder does not submit an application or fails to provide security, customs shall release the goods.

Article 26: If customs detains alleged infringing goods, it shall serve the detention note for the detained alleged infringing goods on the Consignee/Consignor.

Subject to the consent of customs, the Consignee/Consignor may examine the goods detained by customs.

Article 27: Once customs has detained alleged infringing goods, it shall investigate such goods and other relevant matters in accordance with the law. The Consignee/Consignor and the IPR Holder shall co-operate with customs in its investigation and provide truthful relevant information and evidence.

When conducting an investigation of alleged infringing goods, customs may seek advice from the relevant competent intellectual property rights department.

If the IPR Holder and the Consignee/Consignor reach agreement on the alleged infringing goods detained by customs and submit a written application to customs, together with the relevant agreement, requesting that customs release the alleged infringing goods from detention, customs may terminate its investigation unless it suspects that a criminal offence is constituted.

Article 28: If customs, in investigating alleged infringing goods that it has detained, is unable to determine whether the goods infringe the relevant intellectual property rights, it shall notify the IPR Holder and the Consignee/Consignor thereof in writing within 30 working days from the date on which it detained the goods.

If customs is unable to determine whether the goods infringe the relevant patent and the Consignee/Consignor provides security to customs equivalent to the value of the goods, it may request that customs release the goods. If customs agrees to release the goods, matters shall be handled in accordance with the second and third paragraphs of Article 20 hereof.

Article 29: If customs is unable to determine whether relevant goods infringe the IPR Holder's intellectual property rights, it/he/she may, pursuant to Article 23 of the Regulations, apply to a people's court for an injunction against the infringement or to take property preservation measures.

If, within 50 working days from the date on which it detained the alleged infringing goods, customs receives a written notice from the people's court requesting its assistance in impounding the relevant goods, it shall give its assistance. If it does not receive a notice from the people's court requesting assistance or if the IPR Holder requests that customs release the relevant goods, customs shall release the goods.

Article 30: If customs renders a decision to confiscate infringing goods, it shall notify the IPR Holder in writing of the following particulars as known:

(1) the description and quantity of the infringing goods;

(2) the name of the Consignee/Consignor;

(3) the date of the import or export declaration of the infringing goods, the date of detention by customs and the effective date of the penalty decision;

(4) the point of origin and destination of the infringing goods; and

(5) other information on the infringing goods that customs can provide.

If, in handling the infringement dispute between the relevant parties, the people's court or competent intellectual property rights department requires customs' assistance in obtaining evidence relating to the import or export goods, customs shall give such assistance.

Article 31: If customs discovers that articles carried or mailed into or out of China by an individual is suspected of infringing the intellectual property rights specified in Article 2 of the Regulations and the quantity thereof exceeds that for personal use or a reasonable level, it shall detain the same, unless the traveller or the receiver or mailer declares to customs that it is abandoning the same and customs consents thereto.

When customs investigates the infringing articles, the IPR Holder shall give its assistance. If the traveller entering or leaving China or the receiver or mailer of the parcel entering or leaving China is of the opinion that the articles detained by customs do not infringe the relevant intellectual property rights or claims that they are for personal use, he/she may give an account of relevant matters to customs in writing and provide relevant evidence.

Article 32: If, following investigation by customs, import or export goods or articles entering or leaving China are determined to infringe intellectual property rights, the same shall be confiscated by customs pursuant to the first paragraph of Article 27 or Article 28 of the Regulations or, if the concerned party cannot be ascertained, the same shall be appropriated by customs after the lapse of three months following the issuance of the relevant announcement by customs.

If the infringing import or export act is suspected of constituting a criminal offence, customs shall transfer the case to the public security authority in accordance with the law.

Part Five: Disposal of goods and costs

Article 33: Customs shall dispose of confiscated infringing goods in accordance with the following provisions:

(1) if the relevant goods can be used directly for social welfare undertakings or if the IPR Holder wishes to acquire the same, they shall be handed over to the relevant welfare organisation for use in social welfare undertakings or transferred to the IPR Holder for consideration;

(2) if the relevant goods cannot be disposed of in accordance with Item (1) but the infringing characteristics can be removed, they shall be auctioned after removal of the infringing characteristics; the proceeds from the auction of the goods shall be paid into the national treasury; or

(3) if the relevant goods cannot be disposed of in accordance with Item (1) or (2), they shall be destroyed.

If customs is to auction infringing goods, it shall first seek the opinion of the relevant IPR Holder. When customs destroys infringing goods, the IPR Holder shall provide the necessary assistance. When the relevant welfare organisation uses infringing goods confiscated by customs for social welfare undertakings or the IPR Holder destroys the infringing goods as entrusted by customs, customs shall carry out the necessary supervision.

Article 34: When customs assists a people's court in impounding alleged infringing goods or releases detained goods, the IPR Holder shall pay the warehousing, custody and disposal charges for the goods while they were detained by customs.

If customs confiscates infringing goods, the IPR Holder shall pay the warehousing, custody and disposal charges for the actual period of the storage of the goods after their detention by customs. However, if customs is unable to complete disposal of the goods within three months from the date on which the decision on confiscating the infringing goods was served on the Consignee/Consignor and the same is not due to the Consignee/Consignor applying for administrative review, instituting an administrative action or other special reason relating to the disposal of the goods, the IPR Holder shall not be required to pay the relevant charges for the time beyond the three months.

If customs auctions infringing goods pursuant to Item (2) of the first paragraph of Article 33 hereof, the payment of the auction costs shall be handled in accordance with relevant provisions.

Article 35: If the IPR Holder fails to pay the relevant charges in accordance with Article 34 hereof, customs may deduct the same from the security deposit provided by the IPR Holder or require the guarantor to perform its security obligations.

If customs confiscates infringing goods, it shall, after disposal of the goods and settlement in full of the relevant charges, refund the security deposit to the IPR Holder or release the guarantor from its security obligations.

If customs assists a people's court in impounding alleged infringing goods or releases detained goods pursuant to Item (1), (2) or (4) of Article 24 of the Regulations, the Consignee/Consignor may apply to the people's court for property preservation in respect of the security provided by the IPR Holder. If, within 20 working days from the date of assisting the people's court in impounding the alleged infringing goods or the date of release of the goods, customs has not received a notice from the people's court requesting assistance in enforcing the property preservation measures on the security provided by the IPR Holder, customs shall refund the security deposit to the IPR Holder or release the guarantor from its security obligations. If it does receive a notice from the people's court requesting assistance in enforcement, customs shall assist in such enforcement.

Article 36: If, after customs has, pursuant to Article 19 of the Regulations, released goods that it detained for suspicion of infringing a patent, the IPR Holder submits, pursuant to the third paragraph of Article 20 hereof, to customs a photocopy of the case acceptance notice from the people's court, customs shall dispose of the security deposit provided by the Consignee/Consignor pursuant to the judgment of the people's court. If the IPR Holder does not submit a photocopy of a case acceptance notice from a people's court, customs shall refund the security deposit provided by the Consignee/Consignor. The Consignee/Consignor may apply to a people's court for property preservation in respect of the security provided to customs by the IPR Holder, and if customs does not receive a notice from the people's court requesting assistance in enforcement of the property preservation measures on the security provided by the IPR Holder, it shall, after the lapse of 20 working days following the date of disposal of the security deposit provided by the Consignee/Consignor, refund the security deposit to the IPR Holder or release the guarantor from its security obligations. If it does receive a notice from the people's court requesting assistance in enforcement, customs shall assist in such enforcement.

Part Six: Supplementary provisions

Article 37: In according protection to the Olympic logos and World Expo logos, customs shall refer to these Measures.

Article 38: In these Measures, the term “security” means a security deposit, or a guarantee from a bank or non-bank financial institution.

Article 39: In these Measures, the value of goods shall be reviewed and determined by customs based on the transaction price of such goods. If the transaction price cannot be determined, the value of the goods shall be assessed by customs in accordance with the law.

Article 40: The written notices from customs provided for in Articles 17, 21 and 28 hereof may be served by hand, mail, fax or otherwise.

Article 41: The periods specified in the third paragraph of Article 20 and the first paragraph of Article 22 hereof shall commence to count from the day immediately following the date of service of the written notice from customs. The expiration of the period shall be determined in accordance with the following provisions:

(1) if the IPR Holder submits the document or provides the security to customs by mail or by way of a bank, the period shall expire at midnight on the expiration date; or

(2) if the IPR Holder submits the document or provides the security to customs in person, the period shall expire at the end of customs' normal working hours on the expiration date.

Article 42: When an IPR Holder or Consignee/Consignor submits a photocopy of a relevant document to customs pursuant hereto, it/he/she shall check the photocopy against the original. Once it/he/she has checked it and found it to be in order, it/he/she shall write the words “True to the Original” thereon and sign/stamp it in confirmation.

Article 43: These Measures shall be effective as of July 1 2009. The PRC Customs, Implementing Measures for the《PRC Regulations for Customs Protection of Intellectual Property Rights》 promulgated with Order of the GAC No.114 on May 25 2004 shall be repealed simultaneously.