Category: Business/Financial Management gt; gt; Trade
Problem Description:
Customs will not control the trade
Analysis:
1. If you export fake goods with foreign trademarks, the possibility of being detected by China Customs is relatively small, because the export inspection rate of China Customs is only about 1, that is, it is only checked once in 100 times. . However, intellectual property protection is global. You may not be detected by Chinese customs, but if you are detected by US customs or Dutch customs, you will still have to pay a huge fine, and you will still have to pay the fine in US dollars or euros, which is a big loss.
2. When you have time, you can read the "Customs Law" and "Regulations on the Customs Protection of Intellectual Property Rights":
Relevant legal provisions of the Customs Law:
Article 40 Article 4 Customs shall protect intellectual property rights related to inbound and outbound goods in accordance with laws and administrative regulations.
If it is necessary to declare the status of intellectual property rights to the customs, the consignee and consignee of the imported and exported goods and their agents shall truthfully declare the status of the relevant intellectual property rights to the customs in accordance with national regulations and submit documentation proving the legal use of the relevant intellectual property rights. .
Article 91
Anyone who violates the provisions of this Law by importing or exporting goods that infringe upon the intellectual property rights protected by the laws and administrative regulations of the People's Republic of China shall be confiscated by the customs in accordance with the law. goods, and shall be fined; if a crime is constituted, criminal liability shall be investigated in accordance with the law.
Title Regulations of the People's Republic of China and the Customs Protection of Intellectual Property Rights
Issuing Unit, the State Council
Issuing Date: July 5, 1995
Implementation date: October 1, 1995
Chapter 1 General Provisions
Article 1 is for the purpose of implementing customs protection of intellectual property rights, promoting foreign economic and trade and scientific and technological cultural exchanges, and safeguarding
p>These Regulations are formulated in accordance with the relevant laws of the People's Republic of China and the State in the interest of social public security.
Article 2 These Regulations apply to intellectual property rights related to inbound and outbound goods and protected by the laws and administrative regulations of the People's Republic of China
including exclusive rights to trademarks, Copyright and Patent Rights.
Article 3 The import and export of goods that infringe upon intellectual property rights protected by the laws and administrative regulations of the People's Republic of China (hereinafter referred to as
infringing goods) are prohibited.
Article 4 The Customs of the People's Republic of China shall protect intellectual property rights related to inbound and outbound goods and exercise the provisions of the "Customs Law of the People's Republic of China" relevant powers.
Article 5 The consignee of imported goods or the consignor of exported goods and their agents (hereinafter collectively referred to as
consignee or consignor) shall comply with customs regulations. Requirements: truthfully declare to the customs the status of intellectual property rights related to imported and exported goods and submit relevant documents for inspection.
Article 6 If intellectual property rights holders and their agents (hereinafter collectively referred to as intellectual property rights holders) request Customs to protect their intellectual property rights related to inbound and outbound goods, It should record its intellectual property rights with the customs and apply to the customs for protective measures when it deems it necessary.
Article 7 When implementing intellectual property protection, customs shall keep the commercial secrets of the parties concerned.
Chapter 2 Filing
Article 8 If an intellectual property rights holder applies for customs protection filing of intellectual property rights, he shall submit a written application
to the General Administration of Customs.
The application shall include the following contents:
(1) The name, registration place or nationality, residence, legal representative, main business place, etc. of the intellectual property right holder;
(2) The registration number, content and validity period of the registered trademark, the number, content and validity period of the patent authorization, or content related to copyright;
(3) Related to intellectual property rights The name of the goods and their place of origin;
(4) Persons authorized or licensed to use intellectual property rights; (5) The main entry and exit customs, Importers and exporters, main characteristics, normal prices and other relevant information;
(6) Manufacturers, importers and exporters, main entry and exit customs, main characteristics, prices and other information of known infringing goods;
p>
(7) Other circumstances that the General Administration of Customs deems should be explained.
The following documents should be attached when submitting a written application:
(1) A copy of the intellectual property rights holder’s identity document or a copy of the registration certificate or a copy certified by the registration authority ;
(2) A copy of the registration certificate of the registered trademark, the announcement of the Trademark Office’s approval of the transfer of the registered trademark or a copy of the registered trademark license contract; or a copy of the patent certificate, registered and announced by the Patent Office A copy of the patent transfer contract, a copy of the patent license contract; or documentation or evidence proving copyright rights;
(3) Other documents that the General Administration of Customs deems necessary to attach.
Article 9 The General Administration of Customs shall notify the applicant within 30 days from the date of receipt of all application documents whether to approve
the filing. If the General Administration of Customs approves the filing, it shall issue a customs protection filing certificate for intellectual property rights; if it disapproves the filing, it shall explain the reasons.
Article 10 The filing for customs protection of intellectual property rights shall take effect from the date when the filing is approved by the General Administration of Customs and shall be valid for 7 years. As long as the intellectual property rights are valid, the intellectual property right holder may apply to the General Administration of Customs for renewal of the record within 6 months before the expiration of the customs protection record for intellectual property rights. Each renewal registration is valid for 7 years. If the validity period of the intellectual property customs protection record expires without applying for renewal or the legal protection period for trademark exclusive rights, copyrights, or patent rights expires, the intellectual property customs protection record will immediately become invalid.
Article 11 If there is a change in the registered intellectual property rights, the intellectual property right holder shall report to the General Administration of Customs within 10 days from the date when the intellectual property rights authority
approves the change. Registration change or cancellation procedures.
Chapter 3 Application
Article 12 If the intellectual property right holder registered with the General Administration of Customs discovers that goods suspected of infringement are about to enter or exit the country,
may apply to The customs at the place of entry and exit of goods submit an application for intellectual property protection measures.
Article 13 To request the customs to take intellectual property protection measures, a written application shall be submitted.
The application should include the following contents:
(1) The name and customs registration number of the intellectual property rights applied for protection;
(2) The name of the infringement suspect, Domicile, legal representative, main business place;
(3) Name, specifications and other relevant information of the suspected infringing goods;
(4) Ports and times at which the suspected infringing goods may enter or exit the country , means of transport, consignee or consignor and other relevant information;
(5) Evidence of relevant infringement;
(6) Measures requested by the customs;
(7) Other content deemed necessary by the Customs.
Article 14 If the applicant requests the Customs to detain the goods suspected of infringement, he shall submit to the Customs a security deposit equal to the CIF price of the imported goods or the FOB price of the exported goods.
Article 15 If an intellectual property rights holder requests the customs to take protective measures for its intellectual property rights that have not been registered with the General Administration of Customs, the holder shall apply to the General Administration of Customs before filing an application. At the same time, in accordance with the provisions of Article 8 of these Regulations, the customs protection record for intellectual property rights shall be handled with the General Administration of Customs.
Article 16 If the applicant’s application for adopting intellectual property protection measures does not comply with the relevant provisions of this chapter,
the customs will not accept it. Chapter 4 Investigation and Processing
Article 17 If the customs decides to detain goods suspected of infringement upon the application of the intellectual property right holder, it shall prepare a customs detention voucher and deliver it to the recipient. person or consignor, and notify the applicant in writing.
If the consignee or consignor believes that the imported or exported goods do not infringe the applicant's intellectual property rights, they should provide a written explanation to the customs within 7 days from the date of delivery of the customs detention voucher. If the consignee or consignor raises no objection, the Customs shall, after investigation, have the right to treat the detained suspected infringing goods as infringing goods; if an objection is raised, the Customs shall immediately notify the applicant in writing. Within 15 days from the date of delivery of the written notice specified in paragraph 1 of this article, the applicant has the right to submit the infringement dispute to the competent intellectual property department or file a lawsuit with the People's Court.
Article 18 If the customs discovers that inbound and outbound goods are suspected of infringing upon intellectual property rights registered with the customs, the customs has the right
to detain the goods. If the customs detains goods suspected of infringement, it shall prepare a customs detention voucher, deliver it to the consignee or consignor, and immediately notify the intellectual property right holder in writing. If the intellectual property rights holder files a written application for intellectual property protection within 3 days from the date of delivery of the notice, it shall be handled in accordance with the provisions of Article 17 of these Regulations.
Article 19 If the consignee or consignor believes that its imported or exported goods do not infringe the applicant's intellectual property rights, he or she shall submit to the customs
an amount equivalent to the CIF value of the imported goods or After paying a deposit of twice the FOB value of the exported goods, you can request the customs to release the relevant goods.
Article 20 If the customs detains goods suspected of infringement in accordance with the provisions of Articles 17 and 18 of these Regulations, it shall
start investigating the detained goods within 15 days from the date of detention. Investigate the suspected infringing goods and related circumstances; however, the relevant parties to the infringement dispute have submitted the infringement dispute to the competent intellectual property department for handling or filed a lawsuit with the People's Court. If the customs believes that there is a criminal suspicion, it shall be transferred to the relevant authorities for investigation.
Article 21 When the customs investigates detained suspected infringing goods and related circumstances, the intellectual property right
holder shall provide necessary assistance.
Article 22 If the detained goods suspected of infringement fall into any of the following circumstances, the customs may release them:
(1) The infringement is eliminated after investigation by the customs or the competent intellectual property department. Suspicion;
(2) The People's Court has made a judgment or ruling to rule out the suspicion of infringement;
(3) The relevant parties have not filed a lawsuit with the People's Court within the prescribed time, and the People's Court has ruled not to The case is accepted, or the people's court fails to make a ruling on property preservation;
(4) The intellectual property rights owner fails to respond within the prescribed time or gives up the customs protection of the intellectual property rights.
Article 23. Detained goods suspected of infringement shall be confiscated by the Customs if they are determined to be infringing goods by the Customs, the competent intellectual property department or the People's Court
.
Article 24 Customs shall handle confiscated infringing goods in accordance with the following provisions based on different circumstances:
(1) Destroy goods that infringe copyrights.
(2) For goods that infringe the exclusive rights of a trademark, if the infringing trademark cannot be eliminated, they shall be destroyed; if the infringing trademark can be eliminated and the relevant goods can be used, the infringing trademark shall be eliminated and the relevant goods may only be used for social welfare. business or auction it to non-infringers for their own use in accordance with the law.
(3) Other infringing goods other than the first two items shall be dealt with in accordance with the relevant regulations of the State Council.
Article 25 After the customs decision, the decision of the intellectual property authority, or the judgment or ruling of the people's court takes effect
, the customs shall deduct the following fees from the security deposit submitted by the relevant party. To be refunded:
(1) Costs related to the storage, custody and disposal of goods;
(2) Compensation costs for losses caused to relevant parties due to improper application.
Article 26: Civil disputes between intellectual property rights holders and consignees or consignors shall be resolved by judicial, arbitration or other methods in accordance with the law. Customs will not accept it.
Article 27 After the customs accepts the application for intellectual property protection filing and taking intellectual property protection measures, it fails to discover the infringing goods because
the intellectual property rights holder fails to provide exact information. , If the protection measures are not taken in a timely manner or the protection measures are improperly adopted, the customs will not be held responsible, and the intellectual property rights holder shall bear the responsibility himself.
Chapter 4 Legal Liability
Article 28 The consignee or consignor knows or should know that the goods he imports or exports infringe the rights of others
If intellectual property rights are violated, the customs may impose a fine equal to the CIF value of imported goods or the FOB value of exported goods.
Article 29 If the consignee or consignor fails to truthfully declare the intellectual property rights related to the imported and exported goods,
and submits relevant documents for inspection, the customs may impose import fines. Fines equivalent to the CIF value of the goods or the FOB value of the exported goods.
Article 30 If the party concerned is dissatisfied with the Customs’ penalty decision, he or she may file a penalty within 30 days from the date of receipt of the penalty notice. Within 30 days from the date of announcement, apply for review to the customs that made the penalty decision or to the higher-level customs; the relevant customs shall make a review decision within 90 days from the date of receipt of the review application. If you are dissatisfied with the reconsideration decision, you may file a lawsuit with the People's Court within 30 days from the date of receipt of the reconsideration decision. The party concerned may also directly file a lawsuit with the People's Court within 30 days from the date of receipt of the penalty notice or from the date of announcement of the Customs' penalty decision.
Article 31 If the import or export of infringing goods constitutes a crime, criminal liability shall be pursued in accordance with the law.
Article 32 If customs staff abuse their power, deliberately create difficulties, or neglect their duties when implementing intellectual property protection, or engage in malpractice for personal gain, which constitutes a crime, they shall be held criminally responsible in accordance with the law; If it does not constitute a crime, administrative sanctions will be imposed in accordance with the law.
Chapter 5 Supplementary Provisions
Article 33: The luggage and items carried in and out by individuals and the items sent in and out by mail exceed the reasonable
quantity for personal use. Any infringement of intellectual property rights protected by the laws and administrative regulations of the People's Republic of China shall be deemed as infringing goods and shall be dealt with in accordance with the relevant provisions of these Regulations.
Article 34: To implement intellectual property protection, customs may charge filing fees and necessary fees related to the detention and disposal of infringing goods
. Specific measures shall be formulated by the General Administration of Customs in conjunction with the financial department and the price department of the State Council.
Article 35 The specific regulations for applying for customs protection filing for intellectual property rights and taking customs protection measures for intellectual property rights, as well as relevant document formats, shall be formulated by the General Administration of Customs.
Article 36 These Regulations shall come into effect on October 1, 1995.