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REGULATION OF THE PEOPLES REPUBLIC OF CHINA ON THE CUSTOMS PROTECTION OF INTELLECTUAL PROPERTY RIGHT

REGULATION OF THE PEOPLE'S REPUBLIC OF CHINA
ON THE CUSTOMS' PROTECTION OF INTELLECTUAL PROPERTY RIGHT


(Promulgated by Decree No. 179 of the State Council of the People' s Republic of China on July 5,1995; and Effective as of October 1, 1995)

Chapter 1 General Principle

Article 1 This regulation is formulated in accordance with concerned laws of the People' s Republic of China, in order to enforce the customs' Protection of intellectual property right, promote exchange of foreign economy, trade, technology and culture, safegard social public interests.

Article 2 
This regulation is applicable to intellectual property including copyright, patent and the right to exclusive use of Trade Marks, which is relating to imported or exported goods and protected by the laws and administrative regulations of the people' s Republic of China.

Article 3
 Import or export of the goods is forbidden, as long as they infringe the intellectual property right protected by the laws and administrative regulations of the people' s Republic of China (called infringing goods for short following).

Article 4 The customs of the People' s Republic of China enforce the protection of the intellectual property right relating to imported or exported goods, exercise concerned power stimulated by the customs law of the People's Republic of China.

Article 5
 Consignees of imported goods or consigners of exported goods and their agent (called consignees or consigners by a joint name following) shall declare honestly to the Customs the state of intellectual property relating to imported or exported goods and submit concerned documents for verifying.

Article 6
 If intellectual property right owners and their agents (called intellectual property owners by a joint name following) require the customs to enforce the protection of their intellectual property relating to imported or exported goods, they shall report their intellectual property right to the Customs for the record and file an application with the Customs to take protection measures when they consider it necessary.

Article 7
 When the Customs enforce the protection of intellectual property right, they shall keep the trade secrets of concerned parties.

Chapter II Record

Article 8 Intellectual property right owners shall submit written applications to the Customs when they apply for the records of the Customs' protection of intellectual property right.
The application shall include:
(1) The name or the surname and personal name, registration place or nationality, domicile, legal representative and principal business place of intellectual property owners.

(2) Registrative number, content and period of validity of registered trademark, number, content and period of validity of patent of concerned content of copyright.
(3) Name and place of production of the goods relating to intellectual property.
(4) Persons authorized or licensed to use the intellectual property.
(5) The circumstances of principal importing or exporting customs, importer or exporter, principal features, prices of the goods relating to intellectual property.
(6) The circumstances of the producer, importer or exporter, principal importing or exporting customs principal features, prices of the known infringing goods.
(7) Other circumstances that the Customs General considers necessary to illustrate. When the application is submitted, following documents shall be enclosed:
(1) Copy of identification card, transcript of registration certificate or copy attested by registration organs of intellectual property owner.
(2) Copy of registration certificate of registered trademark, copy of announcement of transfer of registered trademark approved by Trademark Bureau or use of trademark license contract entered in the records of Trademark Bureau, copy of patent certificate, transcript of transfer of patent contract registered and announced by Patent Bureau, copy of use of patent license contract or certificate or proof of copyright.
(3) Other documents that the Customs General consider necessary to be enclosed.

Article 9 
The Customs shall notice the applicant whether the application is admitted to enter in the records within thirty days after receiving all of the applying documents. If the Customs admit the record, they shall give record certificate of the customs' protection of intellectual property; If not, they should illustrate the reasons.

Article 10 
The period of validity of the Customs' protection of intellectual property right shall be seven years, counted from the day the record is admitted by the Customs General.
Subject to the validity of intellectual property, intellectual property owner may apply for a renewal of record within six months before the period of validity of the record the customs' protection of intellectual property right expires. The period of validity for each renewal of record shall be seven years.
The record of the customs' protection of intellectual property right shall be invalid of no application for renewal has been filed before the period of validity of the record of the customs' protection of intellectual property expires or the legal protection period of the right to exclusive use of trademark, patent or copyright expires.

Article 11
 If the circumstances of the recorded intellectual property have changed, the intellectual property owner shall go through the formalities of the change or cancel of record within ten days after the day when the authorities of intellectual authorities approve the change.

Chapter III Application

Article 12 Intellectual property right owners who have entered in the record of the Customs may submit to the Customs located in importing or exporting place the application to take protection measures of intellectual property right when they find that the goods which are suspected of infringing is to enter or leave the country.

Article 13 One shall submit written application if he requires the customs to take protection measures of intellectual property.
The application shall include:
(1) Name of the intellectual property applied for protection, number of the Customs' record.
(2) Name of the suspected infringer domicile legal representative, principal business place.
(3) Circumstances of the name, size of the suspected infringing goods.
(4) Circumstances of the port time, conveyance and consignee or consignor.
(5) concerned infringing proof.
(6) Measures the applicant requires the Customs to take.
(7) Other circumstances that the Customs consider necessary to submit.

Article 14 
If the applicant requires the Customs to detain the suspected infringing goods, the applicant should submit guarantees equal to C. I. F. of imported goods or F. 0. B. of exported goods.

Article 15
 If the intellectual property owner who requires the Customs to take protection measures of the intellectual property right hasn' t enter in the records of the Customs General, he shall go through the formalities of the record of intellectual property in accordance with Article 8 of these regulations when he applies with the customs.

Article 16 
If the application isn't in conformity with the relevant provisions of this chapter, the Customs will not accept it.

Chapter IV Procedure for investigation and Punishment

Article 17 
17. 1 If Customs, upon the petition of trademark or patent holder, decides to seize goods suspected of infringing the trademark or patent, Customs must file a Customs Detaining Receipt and serve it on either the consignee or consignor of the goods and also notify the petitioner in writing.
17. 2 The consignee or consignor of the seized goods has seven (7) days from the date of being served the Customs Detaining Receipt to raise an objection to the customs seizure. The objection must be submitted in writing and explain the reasons they feel that their goods do not violate any intellectual property rights. If no objection is filed within this seven (7) day period, the Customs Department may conduct an investigation and depending on the outcome of the investigation, is entitled to treat the seized goods as violating a trademark or patent and deal with the goods accordingly. If the consignee or consignor submits an objection, Customs must immediately notify the petitioner in writing that an objection has been made. 17. 3 The petitioner has fifteen (15) days from the date the written notification from the Customs Department is served, (as per Article 17. 1), to apply to the appropriate agency to deal with and commence an intellectual property infringement action in the People's Court.

Article 18 
18.1 Customs has the right to detain goods suspected of infringing intellectual property rights registered with them. If goods are detained, the Customs Department must serve either the consignee or consignor with a Customs Detaining Receipt and also notify the intellectual property owner in writing. If the intellectual property owner submits a written petition for intellectual property protection within three (3) days following the Customs Department's written notification of the detained goods, the matter will be handled in accordance with Article 17 of this regulation.

Article 19 
19.1 A consignee or consignor of detained goods who maintains that his goods do not infringe any intellectual property rights, may apply for clearance of the goods. A bailment bond in the amount equal to two (2) times the CIA import value of the goods or two (2) times the FOB export value of the goods.

Article 20 
20.1 If Customs detains goods suspected of violating intellectual property rights under the procedure described in Articles 17 &r. 18 of this regulation, it must conduct an investigation within fifteen (15) days after the goods were seized unless an objection has been submitted to the appropriate intellectual property agency or court of law.
20.2 If Customs suspects any criminal activity in relation to the intellectual property right infringement, it will alert the appropriate agency for further investigation. 

Article 21 
21.1 The intellectual property owner should afford all necessary assistance to the Customs officials in their investigation of the seized goods.

Article 22 
22.1 Customs may release the seized goods under any of the following circumstances.
22.1.1 If the investigation by Customs or the appropriate intellectual property agency finds that the seized goods do not infringe any intellectual property rights.
22.1.2 If a Court, either by judgment or arbitration, finds that the seized goods do not infringe any intellectual property rights.
22.1.3 If the parties involved with the dispute did not commence the lawsuit within the specified deadline, or if the People' s Court refuses to hear the case, or if the People' s Court lifts the seizure and allows the goods to be released.
22.1.4 If the intellectual property owner does not file a petition within the specified time or declares that it does not require the intellectual property rights protection offered by Customs.

Article 23
 23.1 If the seized goods are confirmed by Customs, the appropriate intellectual property agency, or by the People' s Court, to infringe intellectual property rights. they will be confiscated.

Article 24
 24.1 Customs will handle the confiscated goods in the following way:
24.1.1 Goods infringing copyright should be destroyed.
24.1.2 Goods infringing a trademark should be destroyed unless the infringing trademark can be removed from the goods. If the trademark can be removed and the goods are still useful, the trademark portion should be destroyed and the goods used either for public use or sold by public auction, however the party who infringed the trademark will be barred from the auction.
24.1. 3 Intellectual property rights infringements other than copyright and trademark infringements will be dealt with according to the relevant State Council regulations.

Article 25 
25.1 If the seized goods are declared by Customs, the appropriate intellectual property agency, or by the People' s Court to be free of any intellectual property rights infringements, any bailment bond posted to allow the seized goods to clear Customs early and/or any guarantee posted by the petitioner, will be returned after subtracting the following fees:
25.1. 1 Handling and storage fees.
25.1. 2 Compensation to the consignee/consignor for goods seized due to an unjustly filed petition for Customs protection by the petitioner.

Article 26 26.1 The civil dispute between the intellectual property rights holder and the consignee or consignor of the goods should be resolved by arbitration, litigation or other means. The Customs Department will not hear civil cases.

Article 27
 27.1 If Customs, due to the improper or incomplete information of the intellectual property owner's petition, does not find the goods in violation of any intellectual property rights or fails to commence protection of intellectual property rights on time or takes improper measures to protect the intellectual property, the petitioner (intellectual property right holder) will bear full responsibility.

Chapter V Legal Responsibility


Article 28 28.1 If the consignee or consignor knew or should have known that their goods infringe intellectual property rights, Customs may fine the consignee/consignor in the amount not more than the CIA price for importing or FOB price of exporting the goods.

Article 29
 29.1 If the consignee or consignor fails to report the relevant information regarding the goods in question, provides false information, or fails to submit the relevant certificates, Customs may fine the consignee/consignor in the amount not more than the CIA price for importing or FOB price of exporting the goods.

Article 30
 30.1 If either the petitioner or the consignee/consignor does not agree with the fine levied against the consignee/consignor by the Customs, they may, within thirty (30) days of receiving notification of the punishment, apply to either the Customs issuing the fine or a higher level of Customs to have the fine reconsidered. If Customs is unable to serve the punishment notice on any of the interested parties (the petitioner or the consignee/consignor), then the period for requesting a reevaluation of the fine is extended to ninety (90) days after the announcement of the punishment decision. If the interested parties (the petitioner or the consignee/ consignor), still disagree with the Customs re-evaluation, they are entitled to bring an action in the People's Court.
30.2 The interested parties may also bring an action directly into the People' s Court within thirty (30) days of receiving the punishment notice or the announcement of the punishment.

Article 31
 31.1 If the act of importing or exporting goods infringing intellectual property rights consititutes a crime, the offender will be investigated for criminal responsibility according to the law.

Article 32
 32.1 If any Customs officials or staff are suspected of abusing their powers, willfully creating difficulties, neglecting their duty, or engaging in malpractice to benefit any interested parties, they will be investigated for criminal activity. If the acts of the Customs officials or staff does not constitute a crime, they may still be investigated for administrative misconduct.

Chapter VI Attachment

Article 33 32.1 Goods either entering or exiting the country as luggage or by post, that exceed the amount used for personal use or a reasonable amount, will be handled in accordance with this regulation in the case of intellectual property rights infringements.

Article 34 
Customs is entitled to charge registration fees and other necessary handling fees when dealing with goods in the course of carrying out intellectual property protection. These charges and fees will be established and fixed by the Central Customs Bureau in association with appropriate finance department of the State Council.

Article 35 
35.1 The Central Customs Bureau will establish fixed procedures for filing intellectual property rights protection petitions and for carrying out intellectual property protection. The Central Customs Bureau will also administer all associated forms and documents required in the intellectual property protection process.

Article 36 36.1 This regulation comes into effect on October 1, 1995.