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Regulations of the People's Republic of China on Customs Protection of Intellectual Property Rights (2004)

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.