Q: Our products are constantly being counterfeited and shipped overseas. What steps can we take?
A: This is precisely where the system of Customs IPR Protection applies. It operates under two key mechanisms: ex officio protection and protection upon application.
Q: What does ex officio protection entail?
A: Ex officio protection means that Customs authority acts proactively to safeguard intellectual property rights. When Customs identifies imports or exports suspected of infringing recorded IP rights, it notifies the rights holder. Once the rights holder applies for protection, Customs will detain the goods, conduct further investigations to determine their IP status, and then make an administrative ruling. If the authority determines that infringement has occurred, it will confiscate the infringing goods and impose a fine on the parties involved. Should the act be suspected of constituting a crime, Customs will refer the case to the public security authorities for criminal investigation. This ex officio enforcement, however, is contingent upon the prior recordation of intellectual property rights with Customs. The rights holder is required to provide a security deposit, the amount of which is determined by the value of the goods involved, subject to a maximum of RMB 100,000 Yuan per case. Alternatively, the rights holder may apply for a general guarantee for Customs IPR protection, which exempts them from providing a deposit for each individual case.
Q: What is protection upon application?
A: Protection upon application enables rights holders to request the detention of suspected infringing goods at the port of entry or exit, even if their IP rights are not recorded with the General Administration of Customs. This applies when they identify a shipment that is scheduled for import or export and suspect it of infringement.
To invoke this protection, rights holders must submit a detention application for the suspected goods to the port Customs authorities and provide a security deposit equivalent to the value of the goods. Following lawful detention by Customs, they may then initiate civil proceedings with the People's Court. Unlike the ex officio procedure, this mechanism does not require prior IPR recordation, but it typically requires a larger security deposit. Crucially, Customs authority does not investigate or adjudicate on the infringement claims; the onus is entirely on the rights holder to pursue the case through civil litigation.
Q: What is the process for recording IP rights with the General Administration of Customs?
A: To record intellectual property rights, rights holders must apply directly to the General Administration of Customs. The process involves the following key steps: First, register an account on the integrated online service platform of Custom via the official website of the General Administration of Customs. Once the account is approved, navigate to the “Intellectual Property Right” section within the platform to access the online recordation system and complete your profile. Furthermore, after the access is approved, proceed to the “Recordation Application” section, fill in all required details, and upload the necessary supporting documents. The application then enters the review stage. The General Administration of Customs will render a decision to either approve or reject the recordation within 30 working days from the date of application. If the application is rejected, the rights holder may amend and resubmit it, pursuant to the specific grounds provided for the rejection.
Q: What ongoing responsibilities do rights holders have after recording their IP rights?
A: To ensure optimal protection after recordation, rights holders should proactively fulfill several key responsibilities:
1. Maintain all recorded information promptly. This includes updating contact details, registered IP rights, and the information of authorized parties.
2. Proactively monitor for and report suspected infringing goods to Customs, and maintain close communication with your local Customs authority.
3. Provide full cooperation to Customs in the enforcement of intellectual property rights. For instance: Upon receiving Customs notices regarding the intellectual property status of the imported or exported goods, rights holders must respond within three working days to state whether infringement has occurred. If infringement is confirmed, they should submit a formal, written application to Customs requesting the detention of the suspected goods, along with the corresponding security deposit. Rights holders are required to formally assert their rights and submit all pertinent evidence to support the claim, as stipulated by law. They are also responsible for proactively covering all related costs, such as those for the storage and disposal of the infringing goods. Finally, any security deposit must be refunded in a timely manner, and rights holders should ensure all necessary refund procedures are completed.
Disclaimer：The above content is translated from Chinese version of China Customs (Xuexi.cn). The China Customs (Xuexi.cn) version shall prevail.
