Is Custom Recordal of Intellectual Property Rights (IPRs) available in China?
Is Custom Recordal of IPRs compulsory in China?
Is it an effective measure to stop the infiltration of illegal and counterfeit products in China?
Which law forms the legal basis for Custom Recordal of IPRs (Border Control Measures) in China?
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.
Is Custom Recordal of IPRs effective on import or export of goods or both?
Custom Recordal of IPRs effective is effective on both import and export of goods.
What is the role of the customs department/authority? (Kindly give 2-3 points)
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.
Is there a procedure to record IP with the customs department/authority? If yes, then kindly explain it in brief.
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.
What documents are to be submitted along with the application for Custom Recordal of IPRs?
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.
Is the applicant required to execute a bond (against all liabilities and to bear the costs towards destruction, demurrage, and detention charges incurred till the time of destruction or disposal) with the customs department/authority for Custom Recordal of IPRs?
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.
What is the time frame for the customs department/authority to notify the applicants whether their application (for custom recordal of IPRs) is registered or rejected?
Does the customs department/authority have a centralized system or the Custom Recordal is required to be done with each port of entry in China by land, sea, and air?
The customs department/authority has a centralized system.
Is there an online system for Custom Recordal in China?
What is the official fee for Custom Recordal in China?
The recordation procedure is cost-free, straightforward , and time saving. (Source: European Commission report)
What is the term of Custom Recordal of IPRs? Can it be further renewed?
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.
Does the customs department/authority have a right to conduct raids and seize the counterfeit goods within China?
In which scenario does the customs department/authority suspend the clearance of imported goods?
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.
Who bears the liabilities and expenses related to suspension of the release of infringing goods?
The rights holder bears the liabilities and expenses related to suspension of the release of infringing goods.
Is the IP rights holder authorized to examine the goods, the clearance of which has been suspended?
Is the IP rights holder authorized to request the information about the personal details of the importer and additional crucial piece of information concerning the consignment, which has been suspended from clearance?
Can the importer or the authorized representative of the goods, which have been suspended from clearance, request the information of the IP rights holder in question?
Within what timeframe the IP rights holder needs to confirm whether the goods are counterfeit or original after suspension?
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.
Is the IP rights holder required to produce an injunction order or evidence of court proceedings to detain the goods?
If the answer to the above question is 'Yes,' then what is the deadline to do so?
Does the IP rights holder need to pay an additional bond for the detention of goods?
If the answer to the above question is 'Yes,' then to what extent and how is the valuation calculated?
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
In the scenario where the goods detained or seized are found to be infringing the IPRs of the IP rights holder in question, what steps does the customs department/authority take?
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.
Does the customs authority invite the rights holder and importer to join the proceedings? Are there any consequences of failure to join such proceeding, if any?
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.
Before disposal/destruction of infringing goods, does the rights holder need to submit a ‘no objection’ or concurrence document?
Are there any disadvantages of Custom Recordal of IPRs in China? If yes, then kindly give 2-3 points?
If an IP rights holder is not satisfied with the action taken by the customs department/authority, can he/she initiate separate legal proceedings to enforce his/her IP rights?
To establish if the goods are counterfeit before the court of justice, will the affidavit by the IP rights holder suffice or any other documentary requirement is there?
Upon conclusion of proceedings before the Court of Justice, what are the possible remedies awarded by the court?
Is the rights holder under an obligation to inform customs authority when his Intellectual Property Right ceases to be valid/ he ceases to be the owner of such IPR?