Customs recordation and border protection
Border Protection is an important measure taken by Customs for intellectual property rights protection. Pursuant to the Regulations of the People’s Republic of China Regarding Customs Protection of Intellectual Property Rights (“Customs Intellectual Property Protection Regulations”), the Customs can implement protection measures to stop exporting or importing products infringing right holder’s exclusive trademark rights, copyrights and the rights related thereto, patent rights protected by PRC laws and administrative regulations.
The Customs can take measures
- On its own initiative (conduct Ex Officio Action): The Customs would suspend the customs clearance procedure and notify the IPR Owner in writing once it discovers that a shipment of imported or exported goods is suspicious of infringing the owner’s intellectual property right.
- The prerequisite is that IPR Owners had recorded their IP rights in the Customs’ recordation system, which plays a key role to arouse Customs’ attention to the IP rights. The recording is valid for a term of ten years and can be renewed.
- The Customs can conduct investigation to suspected infringing products and upon confirmation of infringement, confiscate the infringing goods and impose fine on infringers.
- Through application by the IPR Owner: The IPR Owner is entitled to apply to the Customs to detain suspected infringing goods when discovering that suspected infringing goods are about to be imported or exported, by submitting prima facie evidence that an intellectual property right is being infringed and a guarantee. Under such occasion, the Customs would not investigate into the intellectual property rights status of products and the IPR Owner shall file the litigation to the court to resolve the dispute.
Hongfanglaw have an experienced team that had successfully assisted clients to enforce IPR protection through border protection measures in a number of cases by providing insightful and tailor-made advice on filing customs recordation about different types of IPR rights, and assisting clients to communicate with the Customs authority to receive border protection.