This website uses cookies to improve your browsing experience. By continuing to use this website you agree to our use of cookies. For more information on our use of cookies, click here to review the Cookies Policy.。
To more effectively curb the illegal importation and exportation of IPR-infringing goods, on 2 December 2003 the PRC State Council an-nounced its new Regulations Governing Cus-toms Protection of Intellectual Property Rights, which took effect on 1 March 2004, replacing the old regulations. The major differences between the old and new regulations are outlined below:
Under the old regulations, to be eligible to request Customs to take action to protect its intellectual property rights, a right holder had to have recorded the rights concerned with the General Administration of Customs. This requirement is now removed. Henceforth, an IP rights holder can apply to Customs to have allegedly infringing goods detained, regard-less of whether it has recorded the rights concerned.
Under the old regulations, a recordation of IP rights was valid for seven years, and was re-newable for a period of seven years each time. Now, recordation is valid for 10 years, re-newable for 10 years each time.
Under the old regulations, when applying to Customs for detention of infringing goods, an IP rights holder had to pay Customs a surety equal to the cost, insurance and freight (CIF) value of imported goods, or the free on board (FOB) value of goods intended for export. The new regulations require an applicant to provide surety of a value not exceeding the price of the goods concerned, to be used to compensate any losses to the consignor or consignee that may result from an unjustified detention. Thus the new regulations evidently allow greater flexibility in the level of surety to be provided.
The old regulations provided that if the con-signor or consignee asserted that detained goods did not infringe the intellectual property rights of the applicant (including trademark rights, patent rights, or copyright), it could request that Customs release the goods on payment of a surety equivalent to twice the CIF value of imported goods or FOB value of export goods. Now, this is reduced to a surety equal to the value of the goods.
The new regulations require an IP rights holder that applies for rights protection meas-ures to pay the cost of warehousing, storage, and disposal of detained goods. But such costs can be regarded as reasonable expenses incurred by the rights holder in order to re-move the infringement, and can subsequently be reclaimed as damages from the infringer through civil litigation. The old regulations contained no such provisions.
The new regulations require that within 30 days after detaining allegedly infringing goods, Customs must investigate the case and deter-mine whether the goods concerned do indeed infringe the IP rights of the applicant. If it is unable to make a determination, it must im-mediately inform the applicant in writing. The old regulations set no such time limit for case handling.
Under the old regulations, Customs had the power to impose a fine on any one attempting to import or export infringing goods, in an amount up to the CIF value of imported goods or the FOB value of goods for export. This provision is now deleted.
