Procedure - The Customs Protection of Intellectual Property Rights
The Customs Protection of Intellectual Property Rights
There have been intensified IPR protection moves in international trade and national governments have been increasingly vigilant of IPR in cargo that crosses borders. In this instance, more comprehensive knowledge of laws, stipulations and procedures of Customs authorities aim to increase the protection of legal rights and interests, and prevent losses. The appropriator of the IPR shall consolidate his knowledge and understanding on Customs protection of IPR, and take use it in the protection of legal rights and interests in cross-border trading, especially in the prevention of sending counterfeit cargo to overseas markets.
Customs protection of IPR refers to legal measures for the prohibition and prevention of export and import of cargo that infringes IPR. It's defined as the Border Measures in the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights. When in there is infringement of proprietary IPR, the appropriator may seek legal aid from the People's Court on Intellectual Property Rights or the administrative department concerned, or apply to China Customs for IPR protection.
I. IPR under Customs
According to Article 2, the Ordinance on Customs Intellectual Property Rights Protection of the PRC, intellectual property rights under the protection of China's Customs shall be those proprietary trademark rights, copyright, as well as the rights & patent related to the copyright, in imported or exported cargo, inclusive of the following:
• the trademark registered with and approved by the Trademark Bureau of China General Administration of Industry and Commerce;
• the internationally registered trademark registered with the world IPR organization and having been extended to China for registration;
• invention, external design or applicable & new type patent with patent rights conferred by the State Intellectual Property Office of the People's Republic of China (including the former China Patent Office);
• the copyrights or other rights concerned of the citizen or organization from any party to the Berne Convention for the Protection of Literary and Artistic Works.
• besides, according to stipulations concerned of the Regulations on the Protection of Olympic Symbols and the Regulation on the Protection of World Expo Logo Marks, China's Customs also organizes protection of the Olympic symbols and world expo logo marks.
According to the Regulations on the Protection of Olympic Symbols and the Regulation on the Protection of World Expo Logo Marks, the China Customs is responsible for protection of the proprietary trademark rights, patent rights, copyrights as well as other rights concerned, and the Olympic symbols proprietary rights in the immigration stage. Thus, only appropriators of said intellectual property rights can applying for Customs protection of intellectual property rights.
The implementation of Customs protection of intellectual property rights is the commitment of China upon its entry to the WTO, and is a demand for all member parties to the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs). The reason why the international organizations and treaties choose to take measures of the Customs' intellectual property rights protection in the tache of immigration is that, along with the development of globalization, international trade and economy grow more and more important to the countries, and the immigration of cargoes become a more and more significant tache in the transnational trade and commerce, and that measures taken in this tache for the intellectual property rights protection can be most effective. As the supervisory and administrative organ of the country, the Customs is entitled to the exertion of related rights and powers as endowed by the Law of the Customs of the People's Republic of China and other laws related to: inspect trans-border transport tools, check and examine trans-border cargoes and articles, and detain those in breach of the Law on Customs or other law or stipulated concerned; question suspects and investigate into the suspected illegal law-breaching acts; checking and copy contract, invoice, account book, voucher, record, file, business exchange & communication, audio & video recording and other information concerning trans-border transport tools, cargoes or articles, and detain or control in other approach those involved with law-breaching trans-border cargoes or articles. The definition and implementation of said rights and powers ensure the effective performance of the Customs' duties and responsibilities in the investigation and handling of cases of infringement cargo in import & export.
II. Appropriator and agent of IPR
The Appropriator of intellectual property rights by the Ordinance on Protection of Intellectual Property Rights refers to the registered of trademarks, the appropriator of patent rights, and the appropriator of copyrights and appropriator related to the copyrights, as defined in the Trademark Law of the People's Republic of China, the Patent Law of the People's Republic of China and the Copyrights Law of the People's Republic of China.
Neither the licensee nor any interested person in other nature in the use of intellectual property rights is the appropriator of the intellectual property rights as stipulated in the Ordinance on Customs Protection of Intellectual Property Rights, and may not apply in the name of its own for filing on intellectual property rights with the China Customs Office, or apply for protection measures with the port Customs. However, the licensee and other interested person may apply for such in the identity of a proxy upon the entrustment of the registerer of trademarks, the appropriator of patent rights, or the appropriator of copyrights or appropriator related to the copyrights.
According to Article 2 of the Measures for Implementation of the Ordinance on Customs Protection of Intellectual Property Rights, the domestic appropriator of intellectual property rights may directly apply or apply by proxy to China Customs Office for filing on Customs IPR protection with or to the port Customs for IPR protection measures; for overseas appropriator of intellectual property rights (including those appropriators from Hong Kong, Macao and Taiwan regions), unless there is a domestic office, such application shall always be presented by domestic proxy.
III. Customs' IPR Protection
According to the Ordinance on Customs Protection of Intellectual Property Rights promulgated by the State Council, the Customs intellectual property rights protection shall include: Detaining of cargoes to be exported which are suspected of infringement, investigating into the infringement of cargoes, punishing the dispatching and receiving party of such infringement cargoes, as well as confiscating and disposing of the infringement cargoes. Among the powers listed above, detaining of cargoes suspected of infringement is a significant tache in the Customs protection of intellectual property rights. At present, the Customs has the power to detain cargoes suspected of infringement in two situations as below:
a. Internment upon Application
Internment upon application refers to the situation when the appropriator applies to the Customs for internment of suspected infringement cargo which is right on the point of being exported or imported, and the Customs detains the suspected infringement cargo upon application of the appropriator the intellectual property rights.
The mode of China's Customs in the internment of suspected infringement cargoes upon application is fundamentally compliant with stipulation on the Customs' termination of discharge of the WTO in the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs) . As the Customs is not to take active measures preventing importing or exporting of such suspected infringement cargoes in this situation, such mode, internment upon application, is also called the Customs' Passive Protection of intellectual property rights.
b. Internment by Power
Internment by power refers to the active measures of detaining and investigation the Customs takes over the suspected infringement cargoes when in the supervision and administration of the cargoes imported & exported.
Such mode of internment by power, when the Customs takes active measures preventing import and export of infringement cargoes, is also called the Customs' Active Protecion of intellectual property rights.
IV. Filing of Customs Protection of Intellectual Property Rights
Filing of Customs intellectual property rights protection refers to the situation when the appropriator of intellectual property rights reports in written form to the China Customs Office on the legal status, the condition of cargoes concerned, the legal application of the intellectual property rights as well as the condition of the import & export of infringement cargoes etc, in accordance with stipulations of Ordinance on Customs Protection of Intellectual Property Rights, so as to facilitate the Customs' active protection over related intellectual property rights in the process of supervision and administration of the cargoes imported and exported.
By the Ordinance on Customs Protection of Intellectual Property Rights promulgated in 1995, filing of intellectual property rights is the premise for the appropriator of intellectual property rights in the pursuit of protection from the Customs. Such is changed in the amendment Dec 2003 Ordinance on Customs Protection of Intellectual Property Rights, filing is no longer maintained as the precondition for application to the Customs for protection. However, in consideration to the necessity for adequate information in the Customs' active protection of intellectual property rights, the revised version of Ordinance retains the stipulation that filing of intellectual property rights still is the precondition for the Customs' active protection for the intellectual property rights concerned.