Chapter
III Request for Detaining Suspected Infringing Goods
Article
12. Where
the right owner discovers that the goods suspected to infringe
the intellectual property rights (referred hereinafter as "suspected
goods") are about to be imported or exported, he may request the
Customs located in importing or exporting place to detain the
suspected goods.
Article
13. Where
the right owner requests Customs to detain the suspected goods,
he shall submit an application and other certification documents,
and provide evidences that are sufficient to prove the infringing
facts obviously exist.
The application shall include:
(1) the names, registration places or nationalities, etc. of the
rights owners;
(2) the titles, contents and other relevant information of the
intellectual property rights;
(3) the names of the consignees and consignors of the suspected
goods;
(4) the names, specifications etc. of the suspected goods;
(5) the possible Customs located in importing or exporting places,
time and conveyances etc. of the suspected goods.
Where the goods are suspected to infringe the recorded intellectual
property right, the application shall include the number of the
recordal.
Article
14. Where
the right owner requests Customs to detain the suspected goods,
he shall submit to Customs a guarantee not exceeding the value
of the goods in order to compensate the possible losses caused
by the undue application to the consignees or consignors and to
pay for the fees of storage, custody and disposal, etc. of the
goods after the detention. Where the right owner pays these fees
directly to the storage traders, the fees shall be deducted from
the guarantee. Specific measures shall be promulgated by the CGA.
Article
15. Where
the right owner applies to detain the suspected goods in accordance
with Article 13 of these Regulations and submit the guarantee
according to Article 14 of these Regulations, Customs shall detain
the suspected goods, notify the right owner in writing and send
the detention receipt to the consignees or consignors.
Where the application to detain the suspected goods filed by the
right owner does not comply with the Article 13 of these Regulations
or the right owner does not submit the guarantee according to
the Article 14 of these Regulations, Customs shall reject the
application and notify the right owner in writing.
Article
16. Customs
shall notify the right owner immediately when they discover the
goods suspected to infringe recorded intellectual property rights.
Where the right owner files an application according to Article
13 of these Regulations within three business days after he receives
the notice from Customs and submits the guarantee according to
Article 14 of these Regulations, Customs shall detain the suspected
goods and send the detention receipt to the consignees or consignors.
Where the right owner fails to file the application or submit
the guarantee within the time limit, Customs shall not detain
the goods.
Article
17. With
the consent of Customs, the right owner and consignees or consignors
may look over the relevant goods.
Article
18. Where
the consignee or consignor holds that his goods have not infringed
intellectual property right, he shall file a written explanation
with Customs and provide relevant evidence.
Article
19. Where
the consignee or consignor holds that his imported or exported
goods have not infringed patent rights, he may submit a guarantee
equal to the value of the goods to Customs and ask to release
the goods. Where the right owner fails to institute proceedings
in the People's Court in a reasonable period, the Customs shall
return the guarantee.
Article
20. Where
the right owner requests Customs to detain the suspected goods
after Customs find the imported or exported goods infringing recorded
intellectual property right and notify the right owner, the Customs
shall initiate the investigation and confirmation on the goods
whether to infringe intellectual property rights or not within
thirty business days from the date of their detention. Where it
cannot be confirmed, Customs shall notify the right owner in writing
immediately.
Article
21. Where
Customs ask for assistance of the relevant competent departments
of intellectual property rights during their investigation to
the detained goods, these departments shall give the assistance.
Where the competent departments of intellectual property rights
deal with the cases related to the imported or exported goods
suspected to infringe intellectual property rights and ask Customs
offer assistance, Customs shall give the assistance.
Article
22. When
Customs carry on their investigation to the suspected goods that
are detained, the right owner and the consignees or consignors
shall cooperate with Customs.
Article
23. After
the right owner files an application with Customs to ask for protection,
before any legal proceedings are instituted, he may, according
to the China Trademark Law, the China Copyright Law or the China
Patent Law, request the People's Court to issue an order to stop
infringing acts or to take property preservation actions.
Where Customs receive a notification from the People's Court to
enforce the order to stop infringing acts or to take property
preservation actions, they shall give assistance.
Article
24. In
any of the following situations, Customs shall release the suspected
goods that are detained:
(1) where Customs have detained the suspected goods according
to Article 15 of these Regulations and have not received a notice
of assistance on execution from the People's Court within twenty
business days from the date of detention;
(2) where Customs have detained the suspected goods according
to Article 16 of these Regulations and have not received the notice
of assistance on execution from the People's Court within fifty
business days from the date of detention, and they can not confirm
that the detained goods have infringed intellectual property right
after investigation;
(3) where the consignees or consignors whose goods have been suspected
to infringe patent right submit a guarantee equal to the value
of the goods to Customs and ask Customs to release their goods;
(4) where Customs consider that the consignees or consignors have
sufficient evidences to prove that their goods have not infringed
any intellectual property rights.
Article
25. Where
Customs detain the suspected goods according to these Regulations,
the right owner shall pay the fees of storage, custody and disposal,
etc. of the goods. Where the right owner does not pay the relevant
fees, Customs may deduct them directly from the guarantee submitted
by the right owner or ask the guarantors to fulfill their guaranty
obligation.
Where the detained goods are confirmed to infringe intellectual
property right, the right owner may add the fees above to the
reasonable expense incurred to stop infringing acts.
Article
26. Where
Customs find cases suspected to commit crimes when they take actions
to protect intellectual property rights, they shall transfer these
cases to the public security authority.
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Chapter
IV Legal Liability
Article
27. Where
the detained goods are confirmed as infringing goods after Customs
investigation, the Customs shall confiscate the goods.
Customs shall notify the relevant circumstances of the infringing
goods to the right owner in writing after confiscation.
Where the infringing goods can be used for charitable purpose,
Customs shall transfer them to the charitable organizations;
where the right owner has the willing to purchase the infringing
goods, Customs may sell the goods to them; where the infringing
goods can not be used for charitable purpose and the right owner
does not intend to purchase the goods, Customs may auction off
the goods after removing the infringing features from the goods;
where it is not feasible to remove the infringing features,
Customs shall destroy the infringing goods.
Article
28. Where
the articles carried or posted in or out the border by an individual
are beyond the personal use and the reasonable quantity and
have infringed the intellectual property right defined in Article
2 of these Regulations, Customs shall confiscate the articles.
Article
29. After
Customs accept a application for recordal of intellectual property
right and a request to take actions to protect his intellectual
property right, where Customs can not find the infringing goods,
adopt protective measures in a timely manner nor the protective
measures adopted are not sufficiently strong, because the right
owner failed to provide precise information, the right owner
shall undertake the consequence by himself.
After the right owner requests Customs to detain the suspected
goods, where the Customs can not confirm that the detained goods
have infringed the intellectual property rights of the right
owner or the People's Court make a judgment that the goods have
not infringed the intellectual property right of the right owner,
the right owner shall undertake the compensation responsibility
in accordance with law.
Article
30. Where
anyone import or export goods that have infringed intellectual
property right, which constitutes a crime, he shall be prosecuted
for his criminal liability in accordance with law.
Article
31. When
taking actions to protect intellectual property rights, any
functionary of Customs abuses his power, or engages in malpractice
for personal gain, which constitutes a crime, shall be prosecuted
for his criminal liability in accordance with law. Where the
case is not so serious to constitute a crime, he shall be given
disciplinary sanction in accordance with law.
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Chapter
V Supplementary Provisions
Article
32. Where
the right owner applies for a recordal of intellectual property
rights with the CGA, he shall pay the recordal fee according
the relevant regulations.
Article
33. These
Regulations shall enter into force on March 1, 2004. The Regulations
on Customs Protection of Intellectual Property Rights of the
People's Republic of China promulgated by the State Council
on July 5, 1995 shall be abrogated at the same day.
