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Custom Recordal of IPRs in China


Custom Recordal of IPRs
The Regulations of the People’s Republic of China on Customs Protection of Intellectual Property Rights form the legal basis for Custom Recordal of IPRs (Border Control Measures) in China.
Custom Recordal of IPRs effective is effective on both import and export of goods.
The role of the Customs authority can be summarised as under:
  • After the IPR is recorded with the GACC (General Administration of China Customs), the GACC will take the decision withing 30 days to approve or not the recordation of IP.
  • After recordation, if any import or export is found to be of infringing nature, the same will be notified to the IPR holder. After his consent, the goods are investigated once the order from the court is obtained within 20 days from detention of goods.
  • The Customs have the right to confiscate the goods and impose administrative penalties on the consignee or consignor of the infringing goods.
There is an online procedure to ensure custom recordation with the GACC, who after examining the documents submitted, decides to approve or disapprove the recordal. The same is communicated to the rights holder in 30 days.
The following are the list of documents:
  • An e-copy of the identification certificate of the right holder and agent where necessary (including a Chinese translation);
  • An e-copy of the IP certificate (TM certificate, patent certificate, copyright registration, or other document justifying copyright);
  • Information regarding related licences, photos of the goods and their packaging; and
  • An e-copy of power of attorney in the name of the agent responsible for the registration process, if one is used.
The IP rights holder is required to deposit a guaranty equal to the value of the goods with Customs within a specified period (the amount of the deposit may exceed the maximum amount of CNY 200,000 required for ex-officio protection), otherwise the application for detention will be rejected.
30 days
The customs department/authority has a centralized system.
The recordation procedure is cost-free, straightforward , and time saving. (Source: European Commission report)
The IPR recordation for customs protection shall be valid from the date on which the GACC approves the registration for a term of 10 years. Within 06 months prior to the expiration of the validity period, the IPR holder may apply to the GACC for renewal of the IPR recordation; each renewal of a recordation is valid for 10 years. If the IPR holder does not apply for renewal at the expiry of the validity period of the IPR recordation, or if the IPR is no longer protected by laws or administrative regulations, the IPR recordation for customs protection shall cease to be valid immediately.
Where China customs identify goods suspected of infringing an IPR that has been pre-recorded, they shall suspend the release of the goods, be it at export or import. The exporter or importer is required to present a written authorisation granted by the rights holder that allows him or her to proceed with this import/export operation.
The rights holder bears the liabilities and expenses related to suspension of the release of infringing goods.
The IPR holder has 03 days to take an action against the intimation of infringing goods/services. If he feels it constitutes infringement and wants detention of these goods, the timeframe is limited.
20 days
The amount of the deposit is set as follows:
a. Declared value under 20 000 RMB: deposit of 100% of the declared value;
b. Declared value between 20 000 and 200 000 RMB: deposit of 50% of the declared value (with a minimum of 20 000 RMB);
c. Declared value over 200 000 RMB: deposit of 100 000 RMB.
The rights holders may lodge a general deposit (Bank Guarantee Letter) to avoid a deposit on a case-by-case basis. This has to be renewed each year and should at least amount to 200 000 RMB
The goods are destroyed, or de-branded and donated to charity, or purchased by the rights holder, or de-branded and auctioned. The importer/exporter will be fined an amount of approximately 30 % of the declared value of the infringing goods.
If the alleged infringer wishes to raise objections, he or she may do so with additional evidences and the IPR holder may make a response after which the case is submitted to a public security organ. There is no obligation to do so. It depends on the nature of each case.