VII. Customs Protection of Intellectual Property Rights
In September 1994, China began to carry out border protection of IPR. At
present, the Chinese customs houses have established a complete system of
IPR-related law enforcement measures, which includes such links as examination
of customs declaration bills and certificates, inspection of imported and
exported goods, detention and investigation of right-infringing goods,
punishment of illegal importers and exporters, and disposal of right-infringing
goods.
In October 1995, China promulgated and implemented its first ever
"Regulations on the Protection of Intellectual Property Rights by the Customs,"
and began to establish its system of IPR customs protection in accordance with
WTO rules. In 2000, the NPC Standing Committee amended the "Customs Law of the
People's Republic of China," defining the functions of IPR customs protection
from the legal perspective. In December 2003, the Chinese government promulgated
the revised "Regulations on the Protection of Intellectual Property Rights by
the Customs," which strengthened the customs houses' power in investigating and
dealing with right-infringing goods, reduced the burden on the proprietors of
intellectual properties in seeking customs protection, and defined the functions
of the customs houses, the judicial and other administrative organizations.
Later, the General Administration of Customs formulated the "Measures for
Implementation" of the revised regulations, which clearly provided for such
issues mentioned in the revised regulations as keeping business secrets, filing
of international registered trademarks, collecting and returning of security
deposit, and the payment of relevant fees by the proprietors. In September 2004,
the Chinese government promulgated the "Regulations on Implementation of
Administrative Penalties," which clearly provided administrative penalties for
infringements on IPR in importation and exportation. The "Interpretations on
Several Issues in Practical Application of Laws in Criminal Cases of
Infringement on Intellectual Property Rights" was promulgated by the Supreme
People's Court and the Supreme People's Procuratorate in December 2004, which
further clearly stipulated the criminal responsibilities of agencies importing
or exporting right-infringing goods. By then, a legal system for IPR customs
protection geared to the needs of economic and social development had been
basically established.
China has established and improved its law enforcement mechanism for IPR
customs protection. First, it has established a central filing system for IPR
customs protection. As long as the IPR proprietors have filed their IPR with the
General Administration of Customs, the port customs have the power to detain
imported or exported goods that infringe on the filed IPR. By the end of 2004,
the General Administration of Customs had confirmed 6,257 files of IPR for
customs protection. Second, a model combining active protection with passive
protection is implemented in law enforcement. Besides detaining import or export
goods suspected of IPR infringement, the customs can also investigate and deal
with illegal import and export of right-infringing goods within the scope of
their powers and duties. Third, law enforcement organizations have been founded
and improved, and the building of IPR law enforcement teams enhanced. By the end
of 2004, all the customs houses directly under the General Administration of
Customs had set up relevant departments for the management of IPR protection,
and 11 of them had set up special organizations for IPR protection. Some customs
houses with adequate conditions had stationed liaison officers on site. A system
of IPR law enforcement has taken shape on three levels, namely, the General
Administration of Customs, customs houses directly under it, and grass-roots
customs posts.
To curb right infringements and piracy in import and export links, the port
customs all over China focus law enforcement on import and export of fake and
pirated products. From 1996 to 2004, the Chinese customs ferreted out 4,361
cases of right infringement in import and export, which involved 630 million
yuan. Since 2000, the number of cases discovered by the customs has increased by
30 percent annually. The customs have effectively cracked down on the illegal
import and export of right-infringing goods, preserving order at ports, and
safeguarding the interests of proprietors.
In offering IPR border protection, the Chinese customs
attach great importance to liaison and cooperation with proprietors and relevant
organizations and associations of proprietors, and have enhanced their
communication and coordination with IPR authorities and their cooperation and
exchanges with foreign border law enforcement authorities. So far, the Chinese
customs have signed memorandums of cooperation on IPR protection with such
proprietors' organizations as the Motion Picture Association of America, and
have cooperated with them successfully. The Chinese customs have cooperated on
many occasions in law enforcement with IPR-related administrative and criminal
law enforcement authorities, such as IPR management authorities and public
security organs, effectively cracking down on illegal and criminal IPR
infringement. The Chinese customs have signed agreements of mutual assistance in
administrative law enforcement with the customs of the European Union countries,
the United States and other countries, which contain the provisions on IPR
customs protection. The Chinese customs have also actively conducted information
exchange and law enforcement cooperation regarding IPR protection with the
customs services of other countries.
