A revision has been made by the State Council to the Customs Protection of Intellectual Property Rights Provisions. The revised Provisions took effect on 1 April.
Consequences of late filing
One paragraph has been added to Article 11 of the Provisions, saying that for any change in its intellectual property rights, an IP rights owner is required to complete the formalities for such change or for the cancellation of the filing with the General Administration of Customs within 30 working days prior to the change being made.
If the filing has a serious impact on imports and exports lawfully carried out by other parties, or on the performance of regulatory duties by the customs according to the law, the General Administration of Customs can revoke the filing based on an application by an interested party, or can revoke the filing on its own initiative.
It should be noted that under the second paragraph of Article 13 of the Customs Protection of Intellectual Property Rights Provisions Implementing Procedures, if the General Administration of Customs revokes the filing of intellectual property rights and if an IP rights owner applies for the filing again within one year from the date of revocation such filing, the General Administration of Customs has the right not to entertain any such application.
This means the rights owner will have no right to apply to the customs for the detention of any suspected infringing goods, or for any other protections, for a period of one year.
Application for preservation
Prior to the amendments, the first paragraph of Article 23 of the Provisions required IP rights holders to apply to a People’s Court for an order to cease infringement or preserve property in respect of any detained suspected infringing goods “prior to prosecution”.
This requirement has been removed from the amended Provisions, to bring it into line with other related laws. This simply means that the rights of IP rights holders are established under the law to apply for measures such as preservation during legal proceedings.
Crackdown on individuals
Under Article 31 of the revised Provisions, if an individual carries or mails any items out of the country in an amount beyond that which is required for his personal use, or in an unreasonable amount, and this constitutes an IP infringement, he will be “dealt with based on the infringing goods”.
Prior to the amendments, the only responsibility of the customs in such a case under the Provisions was to “confiscate the items”. However, it now appears that “confiscated IP-infringing goods” will be handled pursuant to Article 27 of the Provisions.
It also suggests that this kind of personal act may constitute the crime of infringement of knowledge under the PRC Criminal Law. This is likely to have a deterrent effect on individuals carrying or mailing infringing goods across the borders.
