Please describe the Customs protection system for trademark rights.

14:25, September 01, 2009        

Q: Please describe the Customs protection system for trademark rights.

  A: Customs protection for trademark rights refers to the measures taken to protect businesses from theft of their intellectual property in the course of the import and export of goods. According to the Regulations of the People’s Republic of China on the Customs Protection of Intellectual Property Rights and the Regulations on the Protection of Olympic Symbols, Customs will provide protection to registered trademark rights, patent rights (including invention, utility model and design patents), copyrights, and Olympic Symbols in the process of outbound and inbound shipments. The protection offered by Customs to protect the exclusive rights to use a trademark is the most effective method among these powers described above.

  Pursuant to the Regulations of the People’s Republic of China on the Customs Protection of Intellectual Property Rights, Customs protection of intellectual property rights mainly include 1) seizing the suspected goods that are about to be exported or imported; 2) investigating the suspected infringing goods; 3) imposing penalties against the consignee or consigner of the infringing goods; and 4) confiscating and disposing of the contraband goods. Suspension of release and seizure of infringing goods are among the most important parts of Customs’ protection work. Additionally, not only are the inbound shipments targets, but the outbound shipments are also the targets of Customs protection. This is one of the features of border protection in China. Outbound goods accounted for 99.96% of the seized infringing goods in 2008.

  There are two patterns to Customs’ protection of trademark rights, namely protection per application (passive protection) and protection ex officio (positive protection). These two patterns have significant differences concerning the extent of Customs interference and brand owners’ obligations. Customs recordation protection of trademark rights refers to the ability of the brand owner to apply to the General Administration of Customs (GAC) to record its Intellectual Property Rights. To do this, the rights owner must present its trademark rights, goods, and their packaging over which the rights owner wishes to lawfully exercise its rights, and information regarding the known import or export of infringing goods in written form so that the local customs office can keep the importation and exportation of goods under surveillance ex officio.

  According to the 1995 Regulations of the People’s Republic of China on the Customs Protection of Intellectual Property Rights, recordation is the premise upon which the rights owners may seek Customs protection. The regulations, revised in December 2003, no longer require that the brand owners file their recordation application before applying for Customs protection. However, because the consideration of sufficient information is needed for Customs’ ex officio protection, the revised regulations still stipulate recordation as the premise for Customs’ positive protection.

  Source: China IP

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