Interpretation of the General Administration of Customs, "Customs and Excise Department on the People's Republic of China the ...

After the revision of the year, "People's Republic of China Customs on <People's Republic of China Customs Protection of Intellectual Property Rights Bill> the implementation of measures" (the General Administration of Customs No. 183, hereinafter referred to as "implementation measures") was in February 2009 After the 17th session of the General Administration of Customs to consider the adoption of the Department of Treasury.
"Implementation method," since July 1, 2009 will come into effect, May 25, 2004 General Administration of Customs Decree No. 114 of the "People's Republic of China Customs on <People's Republic of China Customs Protection of Intellectual Property Rights Bill> the implementation of measures" ( hereinafter referred to as the pre-amended, "Implementation Measures") abolished at the same time. "Implementation" of the amendment, on improving the protection of intellectual property rights of China's customs system, the guidance of the National Customs and Excise Department to carry out law enforcement of intellectual property protection will play an important role.

A revised "implementation method," the guiding ideology of
(A) an increase in regulatory enforcement and transparency.
"Implementation method," to amend the provisions of an increase of more than 6, and 27 provisions were modified and finishing, for many details of the provisions of the "implementation" would be more feasible. Amendment of Customs protection of intellectual property rights contribute to national unity and norms of law enforcement to protect the party's right to know.
(B) to further balance the interests of all parties, reasonable provisions of the customs, rights and the rights and obligations of收发货人.
A number of important issues in the provisions of the amendment in the "effective law enforcement and customs enforcement to reduce costs", "facilitate the rights of intellectual property rights and prevent abuse" and "to ensure deterrence and to facilitate the legitimate law enforcement access to" basic balance and achieve.

Second, revise the "implementation" of the main content
(A) expanded the scope of implementation, an increase of the Olympic logo and the World Expo marks the provisions of protection (see article thirty-seventh).
According to the State Council promulgated the "Regulations on the Protection of Olympic Symbols" and "Regulations on the Protection of the World Expo marks" the provisions of the Customs and Excise Department should be in accordance with or by reference to "intellectual property laws" of the Olympic symbols and marks the implementation of the Protection of World Expo, but the amendment before the "implementation method," not the relevant requirements. To this end, the "implementation method," in-laws to increase the "Customs and Excise Department with reference to the approach of the Olympic logo and the World Expo marks the implementation of protection" provisions.
(B) on the Customs Protection of Intellectual Property Rights of the adjustments filing system (see chapter II).
1. In order to encourage intellectual property rights through "customs protection of intellectual property filing system" to record the application of Article VI of the contents of the application filed in accordance with the detailed work to be done.
2. In order to facilitate the "implementation method," and revised "Patent Law" convergence, Article VII of the patent application for utility model or design patent filing, it should be submitted by the State Council made by the patent administration department of patent evaluation report.
3. For the solution to the current intellectual property rights due to changes in a timely manner and did not record a result of write-off was delayed legitimate cargo clearance, Article XII of intellectual property rights will be provided for the period failed to apply the changes to the record the General Administration of Customs as Customs Department take the initiative to write off the record, one of the cases, while the provisions of the Customs and Excise Department should take the initiative to write-off the record "to the legal import and export of other serious impact" as a prerequisite.
(C) adjustments to improve the protection system in accordance with the application, and strengthen the protection of its passive characteristics (see Article XVI, 18th, etc.).
"Implementation method," the abolition of the right to be the 16th person detained in the Customs before the goods can view the goods and to withdraw the application requirements. The amendments are mainly based on the following considerations: First of all, intellectual property rights apply to the Customs to detain suspected infringing goods, the goods should be in advance of the state of knowledge of infringement; Secondly, if the intellectual property rights to allow people in the customs clearance of goods after termination of infringing goods to identify and revoke the status of the application, which may result in abuse of intellectual property rights without the need to apply for the right to assume liability; Lastly, "implementation method," also fully protects the rights of human rights, for example, the second paragraph of Article XVII the provisions of the rights of people detained in the Customs and Excise Department to view the goods after the goods, the rights set forth in Article XVIII may apply to the Customs within the statutory time limit in advance of the lifting of the goods detained.
In addition, the explicit requirements of Article XVIII of intellectual property rights of people detained for Customs and Excise Department to apply to take the goods to the people's court order to stop the infringing act or when the preservation of property included in the request to the administration of justice a matter of the seizure.
(D) on the start on its own protection (see Article XXI).
In order to reduce the customs clearance of goods caused by the suspension of customs clearance of goods by legal delays, the twenty-first article of the Customs may require收发货人in the specified period of time to declare the status of intellectual property goods, the Customs and Excise Department to suspend release of goods should be provided for not收发货人period of time to declare the status of intellectual property goods and the Customs and Excise Department to submit the relevant documents or has reason to believe that the goods suspected of infringing the intellectual property of the General Administration of Customs for the record a prerequisite.
(E) With regard to intellectual property rights收发货人reconciliation and post-processing (see Article XXVII).
In view of the nature of private rights of intellectual property rights, the Customs and Excise Department should be investigated and dealt with cases of infringement of intellectual property rights, as far as possible to consider the wishes of people to encourage the parties to resolve infringement disputes through negotiation and at the same time save the cost of its enforcement. To this end, the "implementation method," an increase of the rights of people and customs收发货人on goods suspected of infringing an agreement could be terminated after the Customs investigation.
(Vi) the parties to give up on the provisions of the infringing articles (see第三十一条).
According to customs clearance, post-site supervision of the actual situation in order to enhance its enforcement efficiency, streamline procedures, enhance the clearance, postal channels for IPR protection, set up the exit and entry第三十一条passengers or mail the Entry and Exit close the sender to give up the provisions of the infringing articles.
(G) on the collection when the parties are unable to identify infringing goods or the provisions of articles (see the thirty-second article).
Taken into account when the parties can not identify, the Customs and Excise Department to make the confiscation of infringing goods or goods of the administrative penalty is difficult to solve practical problems for the case to combat such activities, the thirty-second article or import and export of goods into the Customs inquiries from items found infringement of intellectual property rights, should be confiscated by Customs, but the parties can not be identified, since the Customs and Excise Department issued the date of the notice over three months later seized by the Customs and Excise Department.
(Viii) to the intellectual property rights on the Customs and Excise Department were part of a written notice served on the way (see 40th article).
Taking into account the customs and intellectual property rights holders of intellectual property rights between the situation on the confirmation of the goods and start-up procedures need to be served notice, shall be by fax or other ways to the intellectual property rights as the Customs and Excise Department were part of a written notice served on the方式.
2009-06-01