CUSTOMS IN CHINA days from the date of
the detention, they
release the goods. T e IP owner must provide a security bond
not exceeding the value of the detained goods to customs. Customs will release the goods suspected of infringing a patent if the consignee or consignor, believing that its import/export goods have not infringed the patent, requests them to do so aſt er providing customs with a security bond equivalent to the value of such goods. Protection on request is also called “passive mode of protection”. Protection ex officio, according to article
16 of the Regulations on Customs Protection of
Intellectual Property Rights of China,
refers to the measures taken by customs when they find any imported/exported goods that are suspected of infringing IP that is recorded in the GACC. These measures include proactively suspending the customs clearance procedures, informing relevant IP owners and detaining the suspected goods if the owners request it and provide a security bond within three working days. Otherwise, customs release the goods. If the right owner fulfi ls these requirements,
customs should carry out an investigation and within 30 working days from the date of detention make a determination on whether the suspected infringing goods have infringed the IP. The right owner may also ask a court for
an injunction or to preserve the suspected infringing goods under detention before or after a lawsuit is filed. If customs do not receive notification for assistance from courts within 50 working days from the date of the detention and cannot determine infringement through an investigation, they release the goods. If the consignee or consignor of the goods
suspected of infringing a patent requests that customs release the goods and provides a security bond, they will release the goods. If infringement is determined, customs may confi scate and dispose of the infringing goods, and question and impose fi nes on the infringers. Ex offi cio protection is also called “proactive
mode of protection”. T e amount of the security bond can be no more than RMB 100,000 (about $16,000) and a general security bond can also be simultaneously required. In practical terms, protection ex offi cio
is preferred because it enables customs to take actions on their own initiative and the economic burden for right owners is lighter. Having IP recorded with the GACC is a
prerequisite for protection ex offi cio. Anyone, including local customs, has access to the online database of recordings. A foreign right
“IN PRACTICAL TERMS, PROTECTION EX OFFICIO IS PREFERRED BECAUSE IT ENABLES CUSTOMS TO TAKE ACTIONS ON THEIR OWN INITIATIVE AND THE ECONOMIC BURDEN FOR RIGHT OWNERS IS LIGHTER.”
owner must designate an entity within China’s territory to record its IP. T e entity can be its affi liated agency in China or its representative Chinese fi rm. IP rights eligible to be recorded with the
GACC include the following: • Trademarks (excluding service marks) approved for registration by the Trademark Offi ce (CTMO); or internationally registered trademarks (excluding service marks) with a successful extension to China;
• Invention, design and utility model patents that have been granted by
the
State Intellectual Property Offi ce of China (formerly the Patent Offi ce of China); and
• Copyright and related rights owned by citizens or
organisations in member
countries of the Berne Convention for the Protection of Literary and Artistic Works.
Recording rights Filing requirements for recording diff erent rights are summarised below:
72 World Intellectual Property Review Annual 2015 World Intellectual Property Review November/December 2014
Copyright • Relevant information about the copyright to be recorded;
• A copy of the applicant’s certifi cate of identity together with its Chinese translation;
• A colour scan of the certifi cate of registration
www.worldipreview.com
Trademarks • Relevant information about the trademark to be recorded;
• A copy of the applicant’s certifi cate of identity together with its Chinese translation;
• A colour scan of the certifi cate of the trademark registration or a colour scan of the proof of national registration or successful extension of an international registration to China; and/or a colour scan of the certifi cate of the recorded assignment if it has been completed; and/or a colour scan of the certifi cate of the change to the applicant’s name/address if it has been completed; and/or a colour scan of the certifi cate of renewal, if any; and
• A trademark specimen in electronic format.
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