People's Republic Of China Customs On The People's Republic Of China Implementation Of The Regulations On Customs Protection Of Intellectual Property Rights Approach

Original Language Title: 中华人民共和国海关关于《中华人民共和国知识产权海关保护条例》的实施办法

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People's Republic of China Customs on the People's Republic of China implementation of the regulations on customs protection of intellectual property rights approach

    (March 3, 2009, the General Administration of Customs released 183th as of July 1, 2009) Chapter I General provisions

    Article in effective implementation of the People's Republic of China regulations on customs protection of intellectual property rights (hereinafter referred to as the regulations), in accordance with the People's Republic of China Customs law and other laws and administrative regulations, these measures are formulated.

    Article requests for customs protection of intellectual property rights intellectual property rights measures or customs processing of customs protection of intellectual property rights, intellectual property rights in the territory could apply directly or the territory of its agents, overseas intellectual property rights should be established within the Office or authorized agent to apply in the territory.

    Intellectual property rights agent to apply in the territory of the delegate in accordance with the provisions of the preceding paragraph, shall issue format of power of attorney.

    Article intellectual property rights holders and their agents (hereinafter referred to as intellectual property rights) request customs to detain suspected infringing goods to be import and export, shall, in accordance with the relevant provisions of the measures apply to the Customs detain suspected infringing goods. The fourth article import and export cargo the consignor or his agent (hereinafter referred to as the consignor) import and export goods shall be within a reasonable amount of understanding of intellectual property rights.

    Customs officers of the intellectual property of information on import and export goods, the consignor shall, within the deadline set by the Customs to Customs Declaration and submit the relevant supporting documents.

    Fifth, an intellectual property right or the consignor submitted to customs by the relevant documents or evidence relating to trade secrets, intellectual property right holder or consignee or consignor shall provide the customs in writing.

    Customs protection of intellectual property rights, and shall keep the commercial secrets of the party concerned, the Customs shall disclose the information except.

    Chapter II intellectual property record Sixth section intellectual property rights apply to customs for customs protection of intellectual property rights, applications shall be submitted to the General Administration of customs.

    The application shall include the following:

    (A) the intellectual property right holder's name, place of registration or nationality, mail address, contact name, phone and fax numbers, email addresses, and so on.

    (B) a registered trademark names, approved use of the categories of goods and trade names, trademarks, graphics, registration validity period, the transfer, modification, renewal of a registered trademark; names, creation of work completed, work categories, pictures, works, such as transfer, change of work; franchise name, type, date of application, the transfer of patent rights, change, and so on.

    (C) the name of the licensee, licensed merchandise, license terms, and so on.

    (D) name of the legitimate exercise of intellectual property rights of the intellectual property right holder of the goods, origin, means of customs, importers and exporters, the main features, price, and so on.

    (E) the known manufacturers, import and export of goods infringing intellectual property rights, the entry and exit customs, characteristics, prices and so on. Intellectual property right holder shall record every request for its intellectual property rights to submit a separate application.

    Record of intellectual property rights holders to apply for international registration of trademarks and their application should be submitted a separate application for each commodity.

    Article seventh application for intellectual property rights submitted to the General Administration of customs filing, shall be accompanied by the following documents, evidence:

    (A) the intellectual property right holder of personal identity documents copies, copy of business license or other copies of registration documents. (B) Administration for industry and Commerce Trademark Office of the State Council issued the copy of the certificate of trademark registration. Applicants approved changes to trademark registration, renewal of trademark registration, assignment of a registered trade mark or to apply for international registration of trademarks filed, should also be submitted to the State Council administration for industry and Commerce Trademark Office issued the relevant trademark registration certificate; copyright registration voluntary copyright registration certificate issued by the Department a copy of the photo and certified by the copyright registration Department of works. Voluntary copyright registration of the applicant, submitted attesting that the applicant is the copyright owner of the work samples and other evidence of copyright; copies of the patent certificate issued by the Administrative Department for patent under the State Council.

    Patents since more than 1 year from the date of publication, should also be submitted to the Administrative Department for patent under the State Council issued within 6 months prior to the application the applicant copies of the patent register applications for patent for utility model or design patent filing, shall also submit the franchise evaluation reports made by the patent Administration Department under the State Council.

    (C) the work of the intellectual property right holder licenses another person to use a registered trademark, or patent, licensing contracts, provide a copy of the license contract; not signed a licensing contract, submit the relevant licensee, license scope and approval of written statements.

    (D) the legitimate exercise of intellectual property rights of the right holders photos of goods and their packaging. (E) the known evidence of the import and export of infringing goods.

    Infringement of intellectual property rights holders and others have Court or the competent intellectual property authority shall also submit a copy of the relevant legal instruments.

    (F) the Customs deems it necessary to submit additional documentation or evidence. Intellectual property rights of persons according to the provisions of the preceding paragraph to the General Administration of customs documents and evidence shall be complete, true and valid. Relevant documents and evidence for a foreign language, the Chinese version shall be attached.

    Customs Service considers it necessary, may require rightholders to submit relevant documents or evidence of notarization, certification instruments. Eighth an intellectual property right to the General Administration of customs to apply for customs protection of intellectual property rights record or record record of failure when applying to the General Administration of customs, shall pay a filing fee. The intellectual property right holder filing fee should be remitted to the General Administration of customs through the bank account specified. Customs charges a filing fee, shall issue a receipt.

    Standard filing fee charged by the Customs General Administration in conjunction with the relevant departments of the State shall be formulated and published.

    Intellectual property right holder applying for registration renewal or change without having to pay the filing fee. Intellectual property rights pending approval by the General Administration of customs to withdraw application or the application was rejected, the General Customs Administration shall refund the filing fee.

    Record was already approved by the General Administration of Customs Customs Service cancellation, withdrawal or failure for other reasons, payment of the filing fee will not be refunded. The Nineth customs protection of intellectual property rights come into effect from the day of filing approved by the General Administration of customs, will be valid for 10 years.

    Record of intellectual property rights will expire within 10 years from the date of entry into force, validity of the record subject to the validity of intellectual property rights.

    Before the implementation of the regulations approved by the General Administration of customs filed or approved the renewal still calculated according to the original validity period the validity period of the record. Tenth within 6 months before the expiry date of the customs protection of intellectual property rights, continuation of the intellectual property right holder may appeal to the General Administration of customs and filing a written request accompanied by the relevant documents.

    Customs General Administration shall receive all the renewal application within 10 working days from the date of the decision whether or not to grant the renewal, and notify the intellectual property right holder rejects renewed, it shall explain the reasons. Renewals recorded since the previous record day after the expiry of the validity period starting, valid for 10 years.

    Intellectual property rights from the previous record of less than 10 years from the day of expiry, renewal registration is valid subject to the validity of intellectual property rights. 11th after approved by the General Administration of customs, the customs protection of intellectual property rights.

    In accordance with article sixth of this approach to the changes of the contents of the application submitted by the customs, the intellectual property right holder shall change changes to the General Administration of customs within 30 working days from the date of filing of the application and accompanying documents. 12th no longer before the expiry of the filing of intellectual property are protected by law, administrative regulations, or the record of the transfer of intellectual property rights, original intellectual property the intellectual property right holder shall record no longer are protected by law and administrative regulations protect or transfer within 30 working days from the date of entry into force of customs applications for cancellation of customs protection of intellectual property rights and attach relevant documents.

    Intellectual property rights during the validity of the record to give up the record, may apply to the Customs cancellation records.

    Not according to this approach the 11th article and the provisions of the preceding paragraph of this article apply to the customs change or cancellation of registration, have serious implications for other licit import and export, customs can initiate or in accordance with the relevant interested parties apply for cancellation of the relevant intellectual property rights record.

    Customs Service cancellation for the record, shall notify the relevant intellectual property right, customs protection of intellectual property rights since the failure of customs from the date of cancellation.

    13th article customs according to the regulations of article Nineth withdrawal of customs protection of intellectual property rights, shall notify the intellectual property right holder.

    Customs General Administration revoked for the record, people bring their own intellectual property rights had been revoked were withdrawn within 1 year from the date of filing of intellectual property to apply again for the record, customs can not be considered.

    Chapter III request, detained 14th right holders found suspected infringing goods is import/export and customs to be detained, shall, in accordance with provisions of the 13th article of the Bill submitted to the entry and exit of cargo customs applications.

    Intellectual property is not in the record of the General Administration of customs, the intellectual property right holder should also be accompanied by the first paragraph of this article seventh (a), (b) the provision of documents and evidence. Intellectual property rights holder requests Customs to detain suspected infringing goods, sufficient proof of the fact of infringement shall be submitted to the customs of the obvious evidence.

    Evidence submitted by the intellectual property rights, and shall be able to demonstrate the following facts:

    (A) request customs to detain goods import and export;

    (B) unauthorized use on goods of infringing its trademark trademark, work or implementation of its patents.

    15th intellectual property rights request customs to detain suspected infringing goods shall provide equivalent to customs within the time provided in the customs value of the goods guarantees.

    16th an intellectual property rights holder of an application does not comply with the article 14th provisions or security is not provided in accordance with the provisions of the present article 15th, the Customs shall reject the application and inform the intellectual property right holder in writing.

    The 17th article customs detain suspected infringing goods, goods should be the name, quantity, value, consignee name, the declared date of import and export, customs detained date written notice of intellectual property rights.

    The approval of the customs, intellectual property rights can view the goods detained.

    18th customs detained within 20 working days from the date of the suspected infringing goods, received written notification of the people's Court to help detain the goods shall assist; no receiving court assistance notice of seizure or intellectual property rights requires the customs clearance of the goods concerned, the Customs shall release the goods.

    The 19th article customs detain suspected infringing goods, detain suspected infringing goods detained vouchers should be delivered consignor.

    The approval of the customs, consignee or consignor of the goods detained can be viewed.

    20th consignor in accordance with the Ordinance 19th requesting release of the goods under the Customs detained for alleged patent infringement, shall submit a written application to the Customs and provides equivalent guarantees with the goods.

    Customs clearance for patent infringement cargo consignor request, in line with the provisions of the preceding paragraph, the Customs shall release the goods and notify the intellectual property right holder. Intellectual property right relating to a patent infringement suit before a people's Court.

    Customs should be prescribed in the preceding paragraph shall serve notice in writing within 30 working days of the date notice of court cases before the Customs copy.

    Fourth chapter according to the terms of reference of the investigation and handling of

    The 21st Customs import and export regulation, found record of import and export goods involving the Customs General Administration of intellectual property rights and importers or manufacturers use relating to intellectual property, the situation is not in the record of the General Administration of customs, may require the consignor in goods of intellectual property rights within the prescribed conditions and submit the relevant supporting documents.

    Consignor was not in accordance with the provisions of the preceding paragraph the intellectual property goods, submit the relevant documents or we have reason to believe that the intellectual property rights of the registered goods suspected of infringement at the General Administration of customs, Customs shall suspend release of the goods and notify the intellectual property right holder.

    22nd rightholders should in this way 21st provides customs a notice in writing within 3 working days from the day of service of reply in accordance with the following provisions:

    (A) that the goods of infringing its intellectual property and customs customs filing to be detained, detain suspected infringing goods written application to the Customs and in accordance with this article 23rd or 24th of the rules to provide security;

    (B) that the goods do not infringe upon their customs filing of intellectual property rights or customs to detain suspected infringing goods is not required, state the reason in writing to the customs.

    The approval of the customs, intellectual property rights can view the goods.

    23rd the intellectual property right holder under the first paragraph of this article 22nd (a) provides request customs to detain suspected infringing goods, provide guarantees to Customs shall, in accordance with the following provisions:

    (A) the value of goods less than 20,000 yuan, equivalent to the value of the goods guarantees;

    (B) the value of 20,000 to 200,000 yuan, equivalent to the value of the goods 50% 's security, but the guarantee amount shall not be less than RMB 20,000 yuan;

    (C) the goods worth more than 200,000 yuan, providing guarantee of RMB 100,000 yuan.

    The intellectual property right holder according to the first paragraph of this article 22nd (a) provides request customs to detain suspected of violations of the right to exclusive use of trademarks goods, according to the provisions of article 24th of this approach provide total security to the General Administration of customs.

    24th report to customs trademark right holders, approved by the customs service can be submitted to the General Administration of customs Bank or non-bank financial institutions issued a letter of guarantee for its application for customs protection of trademark rights to the customs measures to provide total security.

    Total security guarantee amount shall be equal to the intellectual property right holder last year occurred after the application for detention of suspected infringing goods to the customs warehousing, storage and disposal costs, and; intellectual property rights last year did not apply to the Customs detain suspected infringing goods or warehousing, storage and disposal of less than 200,000 yuan, total security guarantee amount is 200,000 yuan.

    Since customs approved its using total guarantees of day to when December 31, intellectual property right people according to Ordinance 16th article of provides requests Customs detained suspected violations its has in customs record of trademark dedicated right of import and export goods of, without separately provides guarantees, but intellectual property right people not according to Ordinance 25th article of provides paid about costs or not according to Ordinance 29th article of provides bear compensation responsibility, customs to guarantor issued perform guarantees responsibility notification of except.

    25th right holders under paragraph one of this article 22nd (a) submitted an application and in accordance with the provisions of the present article 23rd, 24th, guarantee the provision of, the Customs shall detain suspected infringing goods and notify the intellectual property right holder; intellectual property rights do not apply, or does not provide guarantees, Customs shall release the goods.

    26th article customs detain suspected infringing goods, detain suspected infringing goods detained vouchers should be delivered consignor.

    The approval of the customs, consignee or consignor of the goods detained can be viewed. After the 27th customs to detain suspected infringing goods, it shall be to investigate the suspected infringing goods and other relevant circumstances.

    Consignor and rightholders should cooperate on the investigation, provide relevant information and evidence.

    Customs to investigate the suspected infringing goods, may request the relevant intellectual property rights Department provides advice.

    The intellectual property right holder and consignor agreement on the Customs to detain suspected infringing goods, apply in writing to the Customs and accompanying agreements, require lifting of detaining suspected infringing goods by customs, customs outside of assumed the suspicion of a crime, you can terminate the investigation.

    28th on the suspected infringing goods detained by the Customs to conduct investigations, it cannot be established whether the goods infringe on intellectual property rights, and shall detain suspected infringing goods within 30 working days from the date of written notice of intellectual property right and the consignor. Customs cannot be established whether the goods infringe on patent rights, consignor or security has been provided is equivalent to the value of the goods to the customs, he may request the customs clearance of the goods.

    Customs clearance of the goods, in accordance with this article approaches the 20th second and third paragraphs of the regulations.

    Article 29th cannot be established whether the goods of infringing its intellectual property rights by the customs, intellectual property rights provisions of article 23rd according to the regulations apply to the peoples Court shall be ordered to stop the infringing act or for property preservation measures.

    Customs detain suspected infringing goods date within 50 days of receiving written notice of the people's Court to help detain the goods shall assist; no receiving court assistance notice of seizure or intellectual property rights requires the customs clearance of the goods concerned, the Customs shall release the goods.

    30th article customs decision on confiscation of infringing goods is made, the following should be known in writing inform the intellectual property right holder:

    (A) the name and quantity of infringing goods;

    (B) the consignor's name;

    (C) the date of import and export of infringing goods declaration, the Customs detained and sanction decision dates;

    (D) the infringing goods shipment and means of transport;

    (E) the customs can provide other information relevant to the infringing goods.

    People's Court or the competent intellectual property authority dealing with disputes between the parties concerned, require customs to help obtain evidence relating to the import and export of goods, the Customs shall provide assistance.

    31st article customs found or mail the entry and exit of goods carried by individuals, suspected of violating intellectual property rights provided for in article II of the Ordinance and beyond personal use, a reasonable number of and should be detained, but passenger or accept the sender except renounced and agreed by the Customs to customs. Investigation of infringing the customs, the intellectual property right holder shall provide assistance.

    Passengers or inbound and outbound receipt message senders think that the detained goods do not infringe upon the intellectual property rights or to the use of, a written explanation to the customs over the situation and provide the relevant evidence.

    32nd article import and export cargo or articles which found violations of intellectual property rights by the customs, according to the 27th article of the Ordinance and 28th article shall be confiscated by the customs, but cannot be identified by the parties, custom made after the expiration of 3 months from the date of the notice can be taken over by the customs.

    Import/export violations are suspected of crimes, the Customs should be transferred to the public security organs according to law.

    The fifth chapter disposition and costs

    Article 33rd on the confiscation of the infringing goods, the Customs shall dispose of the following:

    (A) the goods be used in a social or intellectual property rights of people at the takeover, the goods are forwarded to the relevant public institutions for social welfare or transfer to the intellectual property rights holder; (B) the goods were not in accordance with (a) dispose of infringement and features can be eliminated, eliminate tort features auction.

    Proceeds from the auction of goods turned over to the State Treasury;

    (C) the goods cannot be in accordance with subsection (a), (b) dispose of, and shall be destroyed. Infringing goods customs auctions shall first seek the views of relevant intellectual property rights. Customs destruction of the infringing goods, intellectual property rights should be provided with the necessary assistance.

    Public institutions will be confiscated infringing goods concerned for social welfare accepted customs delegates the destruction of infringing goods and intellectual property rights, the Customs shall make the necessary supervision.

    34th article customs to assist the people's Court for seizure of suspected infringing goods or release of the detained goods, intellectual property right owner shall pay for goods in Customs custody warehouse, storage, and disposal costs. Confiscation of infringing goods by the customs, the intellectual property right holder shall withhold the actual storage time after payment goods in the customs warehouse, storage, and disposal costs.

    But customs confiscated infringing goods decided to serve the consignor cannot be completed within 3 months from the date of disposition, and not due to the consignor applying for administrative reconsideration, administrative proceedings or the disposition of other special reasons, right holders are not required to pay 3 months after the related costs.

    Customs in accordance with the first paragraph of this article 33rd (b) provisions of infringing goods auction, auction expenditures in accordance with the relevant regulations.

    35th rightholders are not in accordance with this article 34th provides for the payment of the relevant fees, customs can be deducted from the guarantees submitted by the intellectual property right related costs or require the guarantor to perform security duties.

    Confiscated infringing goods shall, after the completion of disposal of the goods and settle costs related to intellectual property rights to refund guarantees payment or discharge the guarantor liability. Customs assisting the people's Court for seizure of suspected infringing goods or in accordance with the regulations of article 24th of part (a), (b), (d) provisions of the release of the detained goods, consignor can intellectual property right holder to provide security to the people's Court for property preservation.

    Customs assisting the people's Court for seizure of suspected infringing goods or released within 20 working days from the date on which the goods, people's courts the guarantees by the intellectual property right holder prior notice of property preservation measures taken to assist in the implementation of customs guarantee shall be returned to intellectual property right holders gold or discharge the guarantor liability; receives notification of the people's Court to assist in the implementation of, the Customs shall assist in the implementation. 36th article customs according to Ordinance 19th article of provides release was detained of suspected violations patent of goods Hou, intellectual property right people according to this approach 20th article third paragraph of provides to customs submitted Court accepted case notice copies of, customs should according to Court of judgment results processing transceiver goods people submitted of guarantees gold; intellectual property right people not submitted Court accepted case notice copies of, customs should returned transceiver goods people submitted of guarantees gold.

    On intellectual property right people to customs provides of guarantees, transceiver goods people can to court application property preservation, customs not received court on intellectual property right people provides of guarantees take property preservation measures of assist implementation notification of, should since processing transceiver goods people submitted of guarantees gold of day up 20 a days Hou, to intellectual property right people returned guarantees gold or lifted guarantor of guarantees responsibility; received court assist implementation notification of, customs should assist implementation.

    The sixth chapter supplementary articles

    The 37th article customs in accordance with the measures of the Olympic flag and protection of World Expo logo.

    Article 38th in in this way, "security" refers to the guarantee fund guarantees, Bank or non-bank financial institutions. 39th in this way the value of the goods based on the transaction value of the goods by the customs review.

    Transaction value cannot be determined, the value of the goods the Customs assessed.

    40th article 17th of this approach, article 21, article 28 Customs notice in writing direct, by post, by fax or any other service. 41st article this way article 20th and the 22nd article of the period from customs a notice in writing served on the day after the date of the calculation.

    Term as determined in accordance with the following provisions:

    (A) the intellectual property right through the post office or Bank to submit to the customs documents or provide guarantees, with the term maturity at 24 o'clock;

    (B) the intellectual property rights when facing the customs documents or provide guarantees, with the term maturity end of the Customs and Excise Department during normal working hours. Intellectual property rights in 42nd and consignor in accordance with the measures submitted to the Customs copy of the relevant documents, copies of original documents should be checked.

    After they have been checked and should be noted on a copy of "check with the original" words and signature confirmation. 43rd these measures shall come into force on July 1, 2009. May 25, 2004, released by the General Administration of customs, the 114th of the People's Republic of China Customs on the People's Republic of China of the measures for the implementation of the regulations on customs protection of intellectual property rights abrogated.

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