Document Number: Order No. 240 of the General Administration of Customs of the People's Republic of China

Area of Law: General Provisions on Intellectual Property Supervision of Imported and Exported Goods

Level of Authority: Departmental Rules

Date Issued: 05-29-2018

Effective Date: 07-01-2018

Issuing Authority: General Administration of Customs

Status: Effective

Measures of the General Administration of Customs of the People's Republic of China for the Implementation of the Regulation of the People's Republic of China on the Customs Protection of Intellectual Property Rights

(Promulgated by Order No.183 of the General Administration of Customs onMarch 3, 2009, andamended in accordance with the Decision of the General Administration of Customs to Amend Certain Rules issued by the Order No. 240 of the General Administration of Customs on May 29, 2018)

Chapter I General Provisions

Article 1 For the purpose of effectively implementing the Regulation of the People's Republic of China on the Customs Protection of Intellectual Property Rights (hereinafter referred to as the Regulation), these Measures are formulated in accordance with the Customs Law of the People's Republic of China and other laws and administrative regulations.

Article 2 To ask the customs office to take measures to protect intellectual property rights, or handle the archival filing of customs protection of intellectual property rights (hereinafter referred to as the IPRs) at the General Administration of Customs (hereinafter referred to as the GAC), a domestic intellectual property right holder may file an application directly or authorize a domestic agent to do so, and an overseas intellectual property right holder shall authorize its representative office or agent in China to do so.

An intellectual property right holder who, pursuant to the provisions of the preceding paragraph, authorizes its (his) Chinese agent to file an application shall issue a power of attorney conforming to the prescribed format

Article 3 Where an intellectual property right holder or its (his) agent (hereinafter generally referred to as the IPR holder) asks the customs office to detain any goods which are to be imported or exported and which are suspected of infringement, it (he) shall, under relevant provisions of these Measures, file an application with the customs office for detaining the said goods.

Article 4 The consignee/consignor of the goods to be imported or exported or its (his) agent (hereinafter referred to as the consignee/consignor) shall, to a reasonable extent, have the knowledge of the IPR status of the goods to be imported or exported by it (him). If the customs office requires a declaration about the IPR status of the goods to be imported or exported, the consignee/consignor shall faithfully make a declaration and submit the relevant certification documents within the time limit as prescribed by the customs office.

Article 5 If the relevant documents or proofs submitted to the customs office by the IPR holder or consignee/consignor involve any business secrets, the IPR holder or consignee/consignor shall make a written explanation to the customs office.

The customs office shall keep the business secrets of relevant parties in the implementation of customs protection of IPR, but the information which should be disclosed by the customs according to law shall be excluded.

Chapter II Archival Filing of Intellectual Property Right

Article 6 Where an IPR holder intends to apply to the GAC for archival filing of customs protection of IPRs, it (he) shall submit an application to the GAC. The application shall contain:

1. the name, place of registration or nationality and mailing address of the IPR holder, and the name, telephone number, fax number and email address of the contact person;

2. name of registered trademark, category and name of commodity of approved use, graphic of the trademark, valid period of registration, transfer, change and renewal of the registered trademark; name of the work, time when creation thereof is completed, category of the work, pictures of the work, transfer and change of the work; name, type, application date, transfer and change of patent right;

3. name of licensee, licensed commodities, term of license, etc.;

4. name, origin, customs office at the place of entry/exit, importer/exporter, main features and price of the goods for which the IPR holder exercises IPR lawfully; and

5. manufacturer, importer/exporter, customs office at the place of entry/exit, main features and price of the goods known to be infringing IPRs;

The IPR holder shall submit a separate archival filing application for each IPR involved therein. If the IPR holder applies for the archival filing of an international registered trademark, it shall submit a separate application for each category of commodity involved therein.

Article 7 An IPR holder shall submit an archival filing application to the GAC and accompany it by the following documents and proofs:

1. identity certificates of intellectual property right holders;

2. a photocopy of the Trademark Registration Certificate signed and issued by the administrative department for industry and commerce under the State Council. Where an applicant is approved to modify the registration matters, renew the trademark registration or transfer the registered trademark, or applies for the archival filing of international registered trademark, it (he) shall, in addition to the aforesaid photocopies, submit a trademark registration certificate issued by the administrative department for industry and commerce under the State Council, photocopy of the certificate of voluntary registration of copyrights as signed and issued by the copyright registration department and pictures of the work certified by the copyright registration department. If the applicant fails to make a voluntary registration on the copyright, it (he) shall submit a sample of the work that can prove it (he) is the copyright holder and other relevant proofs of the copyright; and a photocopy of the patent certificate signed and issued by the patent administrative department under the State Council. If the patent grant has exceeded 1 year after the date of announcement, the applicant shall also submit the duplicate of the patent register issued by the patent administrative department under the State Council within 6 months before the applicant files an application for archival filing. If the applicant applies for the archival filing of a utility model patent or patent of design, it (he) shall also submit a patent evaluation report made by the patent administrative department under the State Council.

3. a photocopy of the licensing contract if the IPR holder signed a licensing contract to license others to use its (his) registered trademark or work or to exploit its (his) patent; if it (he) did not sign a licensing contract, a written explanation about the licensee, licensed scope, licensed period, etc.;

4. photos of the goods to which the IPR holder lawfully exercises the IPR, and photos of the packages of the said goods;

5. the proofs on the goods known to be infringing IPRs; if the infringement disputes between the IPR holder and others have already been handled by the people's court or by the IPR administrative department, photocopies of the relevant legal documents shall also be submitted.

The documents and proofs submitted to the GAC by the IPR holder under the provisions of the preceding paragraph shall be complete, true and valid. If the relevant documents and proofs are in a foreign language, they shall be accompanied by Chinese translations. When the GAC deems it necessary, it may require the IPR holder to submit the deed of notarization and certification for the related documents or proofs.

Article 8 Where an IPR holder applies to GAC for the archival filing of customs protection of IPRs, or re-applies for the archival filing of customs protection of IPRs after the invalidation of such archival filing, it (he) shall pay the archival filing fee. It (he) shall, via the bank, remit the archival filing fee to the account designated by the GAC. The GAC shall issue a receipt for the archival filing fee it collects. The standards on the archival filing fee shall be separately formulated and announced by the GAC in conjunction with relevant departments of the state.

An IPR holder is not required to pay the archival filing fee when it applies for renewing or modifying the archival filing.

Where an IPR holder withdraws its (his) archival filing application before the examination and approval of the GAC or its (his) archival filing application is dismissed, the GAC shall refund the archival filing fee to it (him). In the case that an archival filing already examined and approved is cancelled, revoked or invalidated for other reasons, the archival filing fee already paid will not be refunded.

Article 9 The archival filing of customs protection of IPR shall come into effect as of the date of the GAC's approval of the archival filing and be valid for 10 years. If the valid period of the IPR is less than 10 years from the date of the archival filing's entry into effect, the valid period of the archival filing shall be that of the IPR.

The valid period of the archival filing or renewal approved by the GAC prior to the implementation of the Regulation shall be computed according to the original valid period.

Article 10 An IPR holder may, within 6 months prior to the expiration of the archival filing of customs protection of IPR, submit to the GAC a written application for renewing the archival filing and accompany it by relevant documents. The GAC shall, within 10 working days after the date on which it receives all the renewal application documents, make a decision about whether to approve the renewal application and send a written notice to the IPR holder. If it disapproves the renewal application, it shall make an explanation.

The renewed archival filing shall be valid for 10 years, computing from the following day of expiration of the former archival filing. If the valid period of the IPR is less than 10 years computing from the following day of expiration of the previous archival filing, the valid period of the renewed archival filing shall be that of the IPR.

Article 11 If there is any change to the contents of application submitted to the GAC under Article 6 of these Measures after the GAC has examined and approved the archival filing of customs protection of IPRs, the IPR holder shall, within 30 working days after the change, file a modification application to the GAC and accompany it by relevant documents.

Article 12 Where an IPR is no longer under the protection of laws and administrative regulations prior to the expiration of the valid period of archival filing, or the IPR under valid archival filing is transferred to others, the former IPR holder shall, within 30 working days from the date on which the IPR is no longer under the protection of laws and administrative regulations or on which the transfer comes into effect, file an application with the GAC for cancelling the customs protection of IPR and accompany it by relevant documents. If the IPR holder waives the archival filing within the valid period of archival filing, it/he may apply to the GAC for cancelling the archival filing.

If an IPR holder's failure to apply to the GAC for modifying or cancelling the archival filing under the provisions of Article 11 and the preceding paragraph results in serious consequences to the legitimate import and export of others, the GAC may cancel the archival filing of the relevant IPR on its own initiative or upon application of the pertinent interested parties.

When canceling an archival filing, the GAC shall give a written notice to the pertinent IPR holder. The archival filing of customs protection of IPR shall become invalid from the date of cancellation by the GAC.

Article 13 The GAC shall give a written notice to the IPR holder when revoking the archival filing of customs protection of IPR under Article 9 of the Regulation.

Where an archival filing is revoked by the GAC, if the IPR holder reapplies for archival filing of the IPR covered by the revoked archival filing within 1 year after the date of revocation, the GAC may reject the said application.

Chapter III Detainment upon Application

Article 14 Where an IPR holder finds any goods suspected of infringement are to be imported or exported and asks the customs office to detain them, it/he shall file an application with the customs office at the place of entry/exit of goods in pursuance of Article 13 of the Regulation. If the relevant IPRs have not been filed with the GAC, the IPR holder shall accompany the application by the documents and proofs as prescribed in subparagraphs (1) and (2) of paragraph 1 of Article 7 of these Measures.

To ask the customs to detain the goods suspected of infringement, the IPR holder shall also submit to the customs office sufficient proofs to prove the obvious existence of such infringement. The proofs submitted by the IPR holder shall prove the following facts:

1. The goods that it/he makes a request to the customs office for detainment are to be imported or exported; and

2. The goods use the trademark logo or work infringing its (his) exclusive trademark use right or exploit its patent without authorization.

Article 15 To ask the customs office to detain any goods suspected of infringement, the IPR holder shall, within the time limit as prescribed by the customs office, provide a guaranty which is equivalent to the value of the goods.

Article 16 If the application filed by an IPR holder does not conform to the provisions of Article 14 of these Measures or if the IPR holder fails to provide a guaranty under Article 15 of these Measures, it shall dismiss the application and notify the IPR holder in writing.

Article 17 Where the customs office detains any goods suspected of infringement, it shall give the IPR holder a written notice, stating the name, quantity and value of the goods, names of the consignee/consignor, date of import/export declaration, date of detainment by customs, etc.

Upon consent of the customs office, the IPR holder may check the goods detained by the customs office.

Article 18 If, within 20 working days after the date of detainment of the goods suspected of infringement, the customs office receives a written notice from the people's court about assistance in detainment of the said goods, it shall offer assistance so requested; if the customs office does not receive the notice from the people's court about assistance in detainment of the relevant goods or if the IPR holder asks it to release the relevant goods, the customs office shall release the goods.

Article 19 Where the customs office detains any goods suspected of infringement, the customs office shall serve the voucher for detainment of the said goods on the consignee/consignor.

Upon consent of the customs office, the consignee/consignor may check the goods detained by the customs office.

Article 20 Where the consignee/consignor asks, under Article 19 of the Regulation, for the release of the goods which are suspected of infringement and are detained by the customs office, it (he) shall file a written application to the customs office and provide a guaranty equivalent to the value of the goods.

When the consignee/consignor asks the customs office to release the goods suspected of infringement and the provisions of the previous paragraph are satisfied, the customs office shall release the goods and notify the IPR holder in writing.

If the IPR holder lodges a lawsuit in the people's court for the patent infringement disputes, it shall, within 30 working days as of the date on which the customs office 's written notice as prescribed in the previous paragraph is served on it (him), submit to the customs office a photocopy of the notice of the people's court on acceptance of the case.

Chapter IV Investigation and Handling according to Functions and Powers

Article 21 Where, during the supervision over goods to be imported or exported, a customs office finds that any goods to be imported or exported involve any IPR filed with the GAC or that the importer/exporter's or the manufacturer's use of the IPR has not been filed with the GAC, it may require the consignee/consignor to make a declaration about the status of the IPR and furnish relevant certification documents within the prescribed time limit.

If the consignee/consignor fails to make a declaration about the status of the IPR or fails to furnish relevant certification documents within the prescribed time limit according to the preceding paragraph or the customs office has grounds to believe that the goods infringe the IPR which has been filed with the GAC, the customs office shall suspend the release of goods and give a written notice to the IPR holder.

Article 22 An IPR holder shall make a reply in pursuance of the following provisions within 3 working days as of the date on which it (he) receives the written notice of the customs office as prescribed in Article 21 of these Measures:

1. If it (he) believes that the relevant goods infringe upon its (his) IPR which has been filed with the GAC, and asks the customs office to detain the said goods, it (he) shall file a written application with the customs office for detaining the goods suspected of infringement and provide a guaranty under Article 23 or 24 of these Measures;

2. If it (he) believes that the relevant goods do not infringe upon its IPR which has been filed with the GAC or does not ask the customs office to detain the goods suspected of infringement, it shall make an explanation in writing to the customs office.

Upon consent of the customs office, the IPR holder may check the said goods.

Article 23 Where an IPR holder asks the customs office to detain any goods suspected of infringement under subparagraph 1 of paragraph 1 of Article 22 of these Measures, it shall provide a guaranty to the customs office under the following provisions:

1. If the value of the goods is less than RMB 20, 000 yuan, it shall provide a guaranty equivalent to the value of the goods;

2. If the value of the goods is more than 20, 000 yuan but less than 200, 000 yuan, it shall provide a guaranty which is 50% of the value of the goods, but the amount of the guaranty shall not be less than 20, 000 yuan; or

3. If the value of the goods exceeds 200, 000 yuan, it shall provide a guaranty of RMB 100, 000 yuan.

Where a IPR holder asks the customs office to detain the goods infringing its (his) exclusive trademark right under subparagraph 1 of paragraph 1 of Article 22 of these Measures, it shall provide a blanket guaranty to the GAC under Article 24 of these Measures.

Article 24 Upon examination and approval of the GAC, an IPR holder that has its exclusive right to the use of the trademark which has been filed with GAC may submit to the GAC a letter of guaranty issued by a bank or a non-banking financial institution to provide a blanket guaranty for the customs protection measures it requests for its exclusive right to the use of the trademark.

The amount of the blanket guaranty shall be equal to the summation of the storage, safekeeping and disposal expenses incurred after the IPR holder applied to the customs for detainment of the goods suspected of infringement during the immediately previous year; or RMB 200,000 yuan, if the IPR holder did not apply to the customs for detainment of goods suspected of infringement during the immediately previous year, or if the storage, safekeeping and disposal expenses incurred during the immediately previous year are less than RMB 200,000 yuan.

From the date on which the use of the blanket guaranty is approved by GAC to December 31 of the current year, an IPR holder, which asks the customs to detain the goods to be imported or exported and suspected of infringing upon its (his) exclusive right to the use of trademark which has been filed with the GAC under Article 16 of the Regulation, is not required to provide a separate guaranty unless the GAC has issued a notice to the guarantor about the fulfillment of guaranty liabilities for the IPR holder's failure to pay the related expenses under Article 25 of the Regulation or to bear the compensation liability under Article 29 of the Regulation.

Article 25 Where an IPR holder files an application under subparagraph 1 of paragraph 1 of Article 22 of these Measures and provides a guaranty under Article 23 or 24 of these Measures, the customs office shall detain the goods suspected of infringement and notify the IPR holder in writing; if the IPR holder fails to file an application or fails to provide a guaranty, the customs office shall release the goods.

Article 26 Where a customs office detains any goods suspected of infringement, it shall serve the voucher for detainment of the said goods on the consignee/consignor.

Upon consent of the customs office, the consignee/consignor may check the goods detained by the customs office.

Article 27 After having detained any goods suspected of infringement, the customs office shall investigate the said goods and other relevant information. The consignee/consignor and the IPR holder shall be cooperative in the investigation by the customs office and shall faithfully furnish relevant information and proofs.

When investigating the goods suspected of infringement, the customs office may ask the relevant intellectual property administrative department to offer advisory opinions.

If the IPR holder reaches an agreement with the consignee/consignor on the goods suspected of infringement and detained by the customs office, and submits a written application, together with the said agreement, to the customs office for lifting the detainment, the customs office may terminate the investigation unless it believes that the infringement is suspected of constituting any crime.

Article 28 If the customs office cannot confirm whether the goods suspected of infringement infringe the relevant IPR after having investigating the detained goods, it shall give a written notice to the IPR holder and the consignee/consignor within 30 working days from the date of detainment of the goods suspected of infringement.

If the customs office cannot confirm whether the goods infringe upon the relevant patent right, the consignee/consignor may ask that customs office to release the goods after providing to the customs office a guaranty equal to the value of the said goods. If the customs office agrees to release the goods, it shall do it according to the provisions in paragraphs 2 and 3 of Article 20 of these Measures.

Article 29 If the customs office cannot confirm whether the goods infringe upon the IPR, the IPR holder may, under Article 23 of the Regulation, apply to the people's court for taking such measure as ordering the stop of infringement or preserving the property.

The customs office shall offer assistance when receiving a written notice from the people's court about assistance in detaining the relevant goods within 50 working days starting from the day when the goods suspected of infringement are detained; if the customs office does not receive the notice about assistance in detainment from the people's court or if the IPR holder asks the customs office to release the relevant goods, the customs office shall release the goods.

Article 30 When deciding to forfeit the infringing goods, the customs office shall give a written notice to the IPR holder about the following information already known:

1.the name and quantity of the infringing goods;

2. name of the consignee/consignor;

3. date of declaration for the import/export of the infringing goods, date of detainment by the customs office, and date of the punishment decision's entry into force;

4.places of departure and destination of the infringing goods; and

5.other information relating to the infringing goods, which the customs office may provide.

The customs office shall offer assistance if a people's court or the intellectual property administrative department needs such assistance in obtaining the proofs related to the goods to be imported or exported while settling the infringement dispute between the relevant parties.

Article 31 Customs shall detain the articles that are found to be carried or mailed into/out of China by persons and suspected of infringing the IPR as specified inArticle 2 of the Regulation and have exceeded the reasonable quantity for personal use, unless the passenger or consignee/consignor has declared abandonment thereof to the customs office and the customs office has granted an approval.

The IPR holder shall cooperate with the customs office in investigating the articles of infringement. An inbound/outbound passenger or a consignee/consignor of inbound/outbound mails who does not believe that the article detained by the customs office infringes the related IPR or claims that it is for personal use may make an explanation in writing to the customs office and provide relevant evidence.

Article 32 Those goods to be imported or exported or inbound/outbound articles that are found by the customs office to have infringed the IPR after investigations shall be forfeited by the customs office under paragraph 1 of Article 27 and Article 28 of the Regulation. But, those goods of which the parties concerned cannot be verified may be taken over by the customs office 3 months after the day when the customs office makes an announcement.

The customs office shall transfer to the public security organ those cases involving infringing acts suspected of crime.

Chapter V Disposal of Goods and Expenses

Article 33 The customs office shall dispose of the forfeited infringing goods as follows:

1.The goods that can be used directly for social public welfare programs or an IPR holder intends to purchase will be turned over to the related public welfare institution or transferred to the IPR holder on a paid basis;

2. The goods that cannot be disposed of in accordance with subparagraph 1 of this Article and have infringement features that can be removed will be auctioned according to law after the infringement features have been removed. The proceeds from the auction shall be turned over to the State Treasury;

3. The goods that cannot be disposed of under subparagraphs 1 and 2 of this Article shall be destroyed.

The customs office shall first solicit the opinions of the related IPR holder before auctioning the infringing goods. When the customs office destroys the infringing goods, the IPR holder shall provide necessary assistance. The customs office shall exercise necessary supervision when the related public welfare institution uses the infringing goods as forfeited by the customs office for any social public welfare program and when the IPR holder destroys the infringing goods upon authorization of the customs office.

Article 34 If the customs office assists a people's court in detaining the goods suspected of infringement or releases the detained goods, the IPR holder shall pay the storage, safekeeping and disposal expenses incurred by the goods during detainment by the customs office.

For the infringing goods forfeited by the customs office, the IPR holder shall pay the storage, safekeeping and disposal expenses on the basis of the actual duration of detainment of the goods by the customs office. However, if the customs office cannot complete the disposal of the goods within 3 months after the day when the decision on forfeiting the infringing goods is served on the consignee/consignor, which is not caused by the consignee/consignor's application for administrative reconsideration or act of bringing an administrative lawsuit or other special reasons in respect of the disposal thereof, the IPR holder need not pay the expenses after the 3 months.

If the customs office auctions the infringing goods under subparagraph 2 of paragraph 1 of Article 33, the payment of auction expenses shall be governed by the relevant provisions.

Article 35 If the IPR holder fails to pay the relevant expenses as required by Article 34 hereof, the customs may deduct the relevant expenses from the guaranty bond provided by the IPR holder or require the guarantor to fulfill the guaranty obligations.

In the case of forfeiture of the infringing goods, the customs office shall settle the relevant expenses after disposal thereof and then refund the guaranty bond to the IPR holder or relieve the guarantor from guaranty responsibility.

If the customs office assists a people's court in detaining the goods suspected of infringement or releases the detained goods under subparagraph 1, 2 or 4 of Article 24 of the Regulation, the consignee/consignor may apply to the people's court for preservation of property against the guaranty provided by the IPR holder. If the customs office does not receive a notice from the people's court about assistance in taking property preservation measures against the guaranty provided by the IPR holder within 20 working days from the day when the customs office assists the people's court in detaining the goods suspected of infringement or releases the detained goods, the customs office shall refund the guaranty bond to the IPR holder or relieve the guarantor from the guaranty responsibility. If such a notice is received from the people's court, the customs office shall offer assistance.

Article 36 If the IPR holder submits to the customs office a copy of the notice of the people's court about case acceptance under paragraph 3 of Article 20 of these Measures after the customs office has released the detained goods suspected of patent infringement under Article 19 of the Regulation, the customs office shall dispose of the guaranty bond provided by the consignee/consignor according to the judgment of the people's court; if the IPR holder does not submit the copy, the customs office shall refund the guaranty bond provided by the consignee/consignor. The consignee/consignor may apply to the people's court for property preservation against the guaranty provided by the IPR holder to the customs office. If the customs office does not receive a notice from the people's court about assistance in taking property preservation measures against the guaranty provided by the IPR holder, the customs office shall refund the guaranty bond to the IPR holder or relieve the guarantor from guaranty responsibility after 20 working days from the day when the guaranty bond provided by the consignee/consignor is disposed of. If such a notice is received from the people's court, the customs office shall offer assistance.

Chapter VI Supplementary Provisions

Article 37 The customs office shall protect the Olympic Symbol and the World Expo logo marks by analogy to these Measures.

Article 38 The term “guaranty” as used in these Measures means the guaranty bond, and the letter of guaranty issued by a bank or a non-banking financial institution.

Article 39 For the purpose of these Measures, the value of goods shall be fixed by the customs office on the basis of the transaction price of the goods. If the transaction price cannot be determined, the value of goods shall be assessed by the customs office according to law.

Article 40 The service of the written notices of customs as specified in Articles 17, 21 and 28 hereof may be effected by direct delivery, mailing, fax or other means.

Article 41 The “time limit” as used in paragraph 3 of Article 20 and paragraph 1of Article 22 hereof shall be computed from the day following the date of service of the written notice. The time limit shall end under the provisions as follows:

1. If the IPR holder submits documents to or provides a guaranty to the customs office via a post office or a bank, the time limit shall end at 24 o'clock on the final date of the time limit;

2. If the IPR holder delivers documents to or provides a guaranty to the customs office in person, the time limit shall end when the normal office hours of the customs office end on the final date of the time limit.

Article 42 An IPR holder and consignee/consignor shall verify the copies of the relevant documents they submit to customs office under these Measures against the originals thereof and shall mark the copies with the words “COPY IN CONFORMITY WITH THE ORIGINAL UPON VERIFICATION” after verifying them as in conformity with the originals and affix their signatures thereto for confirmation.

Article 43 These Measures shall come into force on July 1, 2009.The Measures of the General Administration of Customs of the People's Republic of China for the Implementation of the Regulation of the People's Republic of China on the Customs Protection of Intellectual Property Rights promulgated by Order No. 114 of the General Administration of Customs on May 25, 2004 shall be repealed simultaneously.

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