Implementation Regulations for Customs to Detain Articles Infringing the Rights in the Trademark

Link to law: http://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?PCode=J0070003

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Article 1


These Regulations are formulated pursuant to Paragraph 1 of Article 78 of the Trademark Act (hereinafter referred to as “the Act”).


Article 2


A proprietor of a registered trademark who requests Customs to detain articles that are suspected of infringing the rights in the trademark shall make such request in writing to customs office of importation/exportation of such articles, accompanied by the following:
(1) facts of the infringement, along with the descriptions which may sufficiently identify the infringing articles and the electronic files that contain the information for confirming the infringing articles, such as samples, photos, catalogs or pictures of genuine articles and counterfeit articles;
(2) relevant substantive information, including name of importer/exporter, articles, ports and dates of importation/exportation, ship or flight numbers, container numbers, storage location, etc.;
(3) proof of trademark registration.
Where the request is made by an agent, proof of appointment shall be submitted additionally.


Article 3


A request for detention of articles that are suspected of infringing the rights in the trademark shall be accompanied by a security in an amount equivalent to the duty-paid price of the imported articles or the F.O.B. price of the exported articles, assessed by Customs, or the following equivalent assurance:
(1) bonds published by the government;
(2) certificate of bank deposit;
(3) certificate of credit cooperative deposit;
(4) trust certificate from investment company over one year; or
(5) guarantee from loan institution.
A pledge for subparagraphs (1) through (4) of the preceding paragraph shall be established with Customs.


Article 4


Customs shall immediately detain the suspected articles once the request for detention conforms to Article 72 of the Act and give a notice to the person who requested to detain articles and the owner of detained articles in writing.
Where a request for detention requires amendment, Customs shall immediately give the person who requested to detain articles a notice of amendment. Customs clearance procedures shall not be affected before amendment.


Article 5


After a proprietor of a registered trademark requests customs office of importation/exportation of the articles to detain such articles, if Customs has not been informed, within a period of twelve days after the person who requested to detain articles has been served notice of admission of the request, that proceedings claiming that the detained articles are infringing articles pursuant to Article 69 of the Act have been initiated by the person who requested to detain articles, Customs shall revoke the detention and, if such articles do not violate any regulations of clearance, follow the procedures in accordance with applicable Customs Regulations on import and export articles clearance after retaining a representative sample.
The period as prescribed in the preceding paragraph may be extended by another twelve days by Customs in appropriate cases pursuant to Paragraph 2 of Article 73 of the Act.


Article 6


The owner of detained articles who requests Customs to revoke the detention shall make such request in writing to customs office of importation/exportation of such articles, accompanied by the provision of a security in an amount equivalent to two times of the price assessed by Customs as prescribed in Article 3 of these Regulations or equivalent assurance.
The assurance as prescribed in the preceding paragraph shall be in accordance with Article 3 of these Regulations.


Article 7


If there is a final ruling of the court which dismisses the litigation initiated by the person who requested to detain articles claiming that the detained articles are infringing articles, or a final judgment of the court which holds that the detained articles do not infringe trademark rights, such person who requested to detain articles or the owner of detained articles shall request customs office of importation/exportation of such articles in writing, accompanied by relevant documents of proof, to revoke the detention.


Article 8


Customs may follow the procedures in accordance with applicable Customs Regulations on import and export articles clearance after retaining a representative sample if any of the following exists and such articles do not violate any regulations of clearance:
(1) Customs revokes the detention pursuant to the preceding article;
(2) the owner of detained articles requests Customs to revoke the detention pursuant to Article 6 of these Regulations;
(3) the proprietor of the registered trademark requests for revocation of the detention pursuant to Subparagraph 4 of Paragraph 1 of Article 37 of the Act.


Article 9


These Regulations shall come into effect from the date of promulgation.