Customs IPR Enforcement in China

What is Customs IPR Enforcement

Customs IPR Enforcement refers to the measures taken by the Customs according to law against the import and export of IPR-infringed goods, and it is also referred to as the Border Measures regarding the IPR in TRIPS.

According to the Regulations of the People’s Republic of China on Customs Protection of Intellectual Property Rights (“the Regulations”) promulgated by the State Council of the PRC, the types of IPRs that can be recorded with the general Administration of Customs (“GAC”) include: 1) exclusive right to use trademark; 2) copyrights and copyright-associated rights, and; 3) patent rights.

Two Modes of IPR Protection in China

The IPR protection by China Customs may be divided into the two modes of “Protection on Request” and “Protection Ex Officio”:

1) Protection on Request

The Protection on Request refers to the measures taken by the Customs to detain the goods that are suspected of infringement at the request of an IPR holder who applies according to the Regulations when such goods are found to be imported or exported. Because the Customs will not investigate the suspected infringing goods that are detained on request, and the IPR holder will therefore have to file a lawsuit with the people’s court for relevant infringement dispute, the Protection on Request is also called Customs “Passive Protection” of the IPR.

2) Protection Ex Officio

The Protection Ex Officio refers to the measures taken by the Customs during their supervision, when they find any import/export goods suspected of infringing any IPR that is registered with the GAC, to proactively suspend the customs clearance procedures, inform relevant IPR holders and detain the suspected goods on the request of the IPR holders according to the Regulations. Because the Customs will proactively use their power of office to deter suspected infringing goods from import and export and have the power to investigate the IPR infringement and impose penalty on the infringers, the Ex-officio protection is also called Customs “proactive protection” of the IPR.

An IPR holder shall, before applying for the Customs ex-officio protection, have its IPR and other information registered with the GAC according to the Regulations.

Benefits of Customs Recordal of IPRs

1) Customs recordal of IPRs is a prerequisite that China Customs take proactive protection measures. If an IPR holder fails to have his IPRs registered with the GAC, China Customs would have no right to take the initiative to suspend the import/export of infringing goods and to conduct investigation.

2) After Customs recordal of IPRs, it is much easier for China customs to find infringing goods when they conduct daily supervision.

3) Lighten economic burden of IPR holders. According to the Regulations and its implementing measures, where an IPR holder has registered their IPRs with the GAC, he may enjoy a discount in respect of the guarantee for detaining suspected infringing goods.

4) Have an effect of deterrent on the infringer. Since the customs shall be confiscate infringing goods and exert administrative punishments for the infringer, Customs Recordal of IPRs can produce deterrent effect on the infringer.