LAWS AND REGULATIONS

(Promulgated by Decree No. 395 of The State Council of the People's Republic of China on December 2, 2003 and revised in accordance with the Decision of The State Council on Amending the Regulations of the People's Republic of China on Customs Protection of Intellectual Property Rights of March 24, 2010)

　　Chapter I General provisions

Article 1 These Regulations are formulated in accordance with the Customs Law of the People's Republic of China for the purpose of implementing customs protection of intellectual property rights, promoting economic, trade, scientific, technological and cultural exchanges with foreign countries and safeguarding public interests.

Article 2 The term "Customs protection of intellectual property rights" as mentioned in these Regulations refers to the protection by the Customs of the exclusive right to use trademarks, Copyrights and copyright-related rights and patent rights (hereinafter referred to as intellectual property rights) relating to import and export goods and protected by the laws and administrative regulations of the People's Republic of China.

Article 3 The State prohibits the import and export of goods that infringe intellectual property rights.

The Customs shall protect intellectual property rights in accordance with relevant laws and the provisions of these Regulations, and exercise the relevant powers provided for in the Customs Law of the People's Republic of China. 

Article 4 Where an intellectual property right holder requests the Customs to implement intellectual property protection, he shall file an application with the Customs for taking protective measures.

Article 5 The consignee or his agent for import goods and the consignor or his agent for export goods shall, in accordance with State regulations, truthfully declare to the Customs the status of intellectual property rights related to import and export goods and submit relevant supporting documents.　　

Chapter II Filing of intellectual Property rights

Article 7 The owner of intellectual property rights may, in accordance with the provisions of these Regulations, apply to the General Administration of Customs for the record of his intellectual property rights; An application for the record shall be submitted. The application shall include the following contents:

(1) the name, place of registration or nationality of the owner of the intellectual property right; 

(2) the name, content and related information of the intellectual property right; 

(3) the status of the exercise of the intellectual property license; 

(4) the name, place of origin, customs of entry and exit, importer and exporter, main features and price of the goods for which the intellectual property right holder lawfully exercises the intellectual property right; 

(5) manufacturers, importers and exporters, customs at the places of entry and exit, main characteristics and prices of goods known to infringe intellectual property rights. 

Where the contents of the application provided for in the preceding paragraph have supporting documents, the intellectual property right holder shall attach supporting documents. 

Article 8 The General Administration of Customs shall, within 30 working days from the date of receipt of all the application documents, make a decision on whether to grant the record, and notify the applicant in writing; If no record is filed, reasons shall be given. 

Under any of the following circumstances, the General Administration of Customs shall not record: 

(1) The application documents are incomplete or invalid; 

(2) The applicant is not the owner of the intellectual property right; 

(3) Intellectual property rights are no longer protected by laws or administrative regulations.

Article 9 Where the Customs finds that the owner of intellectual property rights has not truthfully provided the relevant information or documents when applying for the record of intellectual property rights, the General Administration of Customs may cancel the record.

Article 10 The filing for customs protection of intellectual property rights shall take effect from the date on which the General Administration of Customs approves the filing and shall be valid for 10 years. 

If the intellectual property right is valid, the owner of the intellectual property right may apply to the General Administration of Customs for renewal of the record within 6 months before the expiration of the validity period for the record of the Customs protection of the intellectual property right. Each renewal filing is valid for 10 years. 

Where the period of validity of the record for customs protection of intellectual property rights expires and no application for renewal is made or the intellectual property rights are no longer protected by laws or administrative regulations, the record for customs protection of intellectual property rights shall immediately become invalid. 

Article 11 Where there is a change in the filing of intellectual property rights, the owner of intellectual property rights shall, within 30 working days from the date of the change, go through the formalities for the filing change or cancellation with the General Administration of Customs.

Where the owner of an intellectual property right fails to go through the formalities for alteration or cancellation in accordance with the preceding paragraph, which seriously affects the lawful import and export of others or the Customs' performance of its supervisory duties in accordance with the law, the General Administration of Customs may, upon the application of the relevant interested party, revoke the relevant record, or it may also revoke the relevant record on its own initiative.

　Chapter III Application for detention of suspected infringing goods and its handling

Article 12 Where the intellectual property right holder discovers that the suspected infringing goods are about to be imported or exported, he may file an application with the customs of the place where the goods enter or leave the territory for detention of the suspected infringing goods. 

Article 13 Where the owner of an intellectual property right requests the Customs to detain the suspected infringing goods, he shall submit an application and relevant supporting documents, and provide evidence sufficient to prove the obvious existence of the infringing facts.

The application shall include the following main contents: 

(1) the name, place of registration or nationality of the owner of the intellectual property right; 

(2) the name, content and related information of the intellectual property right; 

(3) the names of the consignee and consignor of the goods suspected of infringement; 

(4) names and specifications of the goods suspected of infringement; 

(5) ports, time and means of transport where the suspected infringing goods may enter or leave the country. 

Where the suspected infringing goods are suspected of infringing the registered intellectual property rights, the application shall also include the customs registration number.

Article 14 Where the owner of an intellectual property right requests the Customs to detain the suspected infringing goods, he shall provide the Customs with a guarantee not exceeding the equivalent value of the goods, which shall be used to compensate the consignee or consignor for the losses that may be caused by the improper application, and to pay the expenses of warehousing, storage and disposal of the goods after they are detained by the Customs. If the owner of the intellectual property rights pays the warehousing and storage expenses directly to the warehousing company, they shall be deducted from the guarantee. Specific measures shall be formulated by the General Administration of Customs. 

Article 15 Where the intellectual property right holder applies for detention of the suspected infringing goods, in accordance with the provisions of Article 13 of these Regulations, and provides security in accordance with the provisions of Article 14 of these Regulations, the Customs shall detain the suspected infringing goods, notify the intellectual property right holder in writing, and deliver the customs detention voucher to the consignee or consignor. 

Where an intellectual property right holder applies for detention of suspected infringing goods, which does not comply with the provisions of Article 13 of these Regulations, or fails to provide security in accordance with the provisions of Article 14 of these Regulations, the Customs shall reject the application and notify the intellectual property right holder in writing.

Article 16 Where the Customs finds that the import or export goods are suspected of infringing the intellectual property rights registered, it shall immediately notify the intellectual property rights holder in writing. Where the intellectual property right holder files an application in accordance with the provisions of Article 13 of these Regulations and provides security in accordance with the provisions of Article 14 of these Regulations within 3 working days from the date of service of the notice, the Customs shall detain the suspected infringing goods, notify the intellectual property right holder in writing, and deliver the customs detention voucher to the consignee or consignor. Where the intellectual property right holder fails to file an application or provide security within the time limit, the Customs shall not detain the goods.

Article 17 With the consent of the Customs, the owner of the intellectual property right and the consignee or consignor may inspect the goods concerned. 

Article 18 Where the consignee or consignor considers that his goods do not infringe the intellectual property rights of the owner of the intellectual property rights, he shall submit a written explanation to the Customs and attach relevant evidence. 

Article 19 Where the consignee or consignor of the goods suspected of infringing the patent right considers that the import or export goods do not infringe the patent right, he may request the Customs to release the goods after providing the Customs with a guarantee of the equivalent value of the goods. Where the intellectual property right holder fails to bring a suit to the people's court within a reasonable time limit, the customs shall return the guarantee money.

Article 20 Where the Customs finds that the import or export goods are suspected of infringing the intellectual property rights registered and notifies the intellectual property rights holder, and the intellectual property rights holder requests the Customs to detain the suspected infringing goods, the Customs shall, within 30 working days from the date of detention, investigate and determine whether the detained suspected infringing goods have infringed the intellectual property rights. If it cannot be determined, it shall immediately notify the intellectual property right holder in writing. 

Article 21 Where the Customs requests the competent intellectual property authority to provide assistance in investigating detained suspected infringing goods, the relevant competent intellectual property authority shall provide assistance.

Where the competent intellectual property authority requests the Customs to provide assistance in handling infringement cases involving import and export goods, the Customs shall provide assistance.

Article 22 When the Customs conducts an investigation into the detained suspected infringing goods and the relevant circumstances, the owner of the intellectual property right and the consignee or consignor shall cooperate. 

Article 23 After applying to the Customs for the adoption of protective measures, the owner of an intellectual property right may, in accordance with the Trademark Law of the People's Republic of China, the Copyright Law of the People's Republic of China, the Patent Law of the People's Republic of China or other relevant laws, With respect to the detained suspected infringing goods, apply to the people's court for the adoption of measures for ordering the cessation of the infringing act or property preservation.

Where the Customs receives a notice from the people's court for assistance in the execution of an order to stop the infringing act or property preservation, it shall provide assistance. 

Article 24 Under any of the following circumstances, the Customs shall release the detained goods suspected of infringement:

(1) where the Customs detains suspected infringing goods in accordance with the provisions of Article 15 of these Regulations and fails to receive a notice of assistance in execution from the people's court within 20 working days from the date of detention; 

(2) where the Customs detaining suspected infringing goods in accordance with the provisions of Article 16 of these Regulations fails to receive a notice of assistance for enforcement from the people's court within 50 working days from the date of detention, and fails to determine after investigation that the detained suspected infringing goods infringe intellectual property rights; 

(3) where the consignee or consignor of the goods suspected of infringing the patent right requests the Customs to release the goods after providing the Customs with a security deposit equal to the value of the goods; 

(4) the Customs considers that the consignee or consignor has sufficient evidence to prove that the goods do not infringe the intellectual property rights of the owner of the intellectual property rights;

(5) Before the Customs determines that the suspected infringing goods detained are infringing goods, the intellectual property right holder withdraws his application for detention of the suspected infringing goods.

Article 25 Where the Customs detains suspected infringing goods in accordance with the provisions of these Regulations, the owner of the intellectual property right shall pay the relevant expenses for warehousing, storage and disposal. If the intellectual property right holder fails to pay the relevant fees, the customs may deduct them from the guarantee money provided to the Customs, or require the guarantor to perform the relevant guarantee responsibilities.

Where the suspected infringing goods are found to have infringed the intellectual property right, the intellectual property right holder may include the expenses paid by him for warehousing, storage and disposal into the reasonable expenses paid by him for stopping the infringing act.

Article 26 Where the Customs discovers a suspected criminal case during intellectual property protection, it shall transfer the case to the public security organ for handling according to law.

　　Chapter IV Legal liability

Article 27 Where the detained goods suspected of infringement are found to have infringed upon intellectual property rights after investigation by the Customs, the Customs shall confiscate them. 

After confiscating the goods infringing intellectual property rights, the Customs shall notify the owner of the intellectual property rights in writing of the relevant information about the goods infringing intellectual property rights.

Where the confiscated goods infringing intellectual property rights can be used for public welfare undertakings, the customs shall transfer them to relevant public welfare institutions for public welfare undertakings. If the intellectual property right holder is willing to acquire it, the Customs may transfer it to the intellectual property right holder for compensation. If the confiscated goods infringing intellectual property rights cannot be used for public welfare undertakings and the owner of the intellectual property rights has no intention to acquire them, the customs may auction the goods according to law after eliminating the infringing features, but for imported goods with counterfeit trademarks, except in special circumstances, they cannot be allowed to enter commercial channels only by removing the trademark marks on the goods. Where infringement features cannot be eliminated, the customs shall destroy them.

Article 28 Where, after the Customs has accepted the application for the filing of intellectual property protection and the adoption of intellectual property protection measures, the Customs fails to discover the infringing goods, fails to take timely protective measures or fails to take ineffective protective measures due to the lack of precise information provided by the intellectual property right holder, the intellectual property right holder shall bear the responsibility. 

Where, after the intellectual property right holder requests the Customs to detain the suspected infringing goods, the Customs fails to find that the detained suspected infringing goods infringe the intellectual property right holder's intellectual property right, or the people's court decides that the detained suspected infringing goods do not infringe the intellectual property right holder's intellectual property right, the intellectual property right holder shall bear the liability for compensation according to law.

Article 29 Whoever imports or exports goods that infringe intellectual property rights, if the case constitutes a crime, shall be investigated for criminal responsibility according to law.

Article 30 Any Customs officer who, while implementing the protection of intellectual property rights, neglects his duty, abuses his power or engages in malpractices for personal gains, if the case constitutes a crime, shall be investigated for criminal responsibility according to law; If the case does not constitute a crime, administrative sanctions shall be imposed according to law.

　　Chapter V Supplementary Provisions

Article 31 Where the inward and outward articles carried or mailed by individuals exceed the reasonable quantity for their own use and infringe the intellectual property rights provided for in Article 2 of these Regulations, they shall be treated as infringing goods.

Article 32 Where an intellectual property right holder submits its intellectual property rights to the General Administration of Customs for the record, it shall pay a filing fee in accordance with the relevant provisions of the State. 

Article 33 These Regulations shall come into force as of March 1, 2004. The Regulations of the People's Republic of China on the Customs Protection of Intellectual Property Rights promulgated by The State Council on July 5, 1995 shall be repealed simultaneously. 

Article 6 When implementing intellectual property protection, the Customs shall keep confidential the trade secrets of the parties concerned.

Source: All China Patent Agents Association