I. The Current situation of Customs enforcement of IPR in China
The Chinese government is always paying great attention to the Customs'
IPR Protection. Though just became a member of World Trade Organization
in 2003, China has established her border measures of intellectual property
rights as far as September of 1994. A system of border enforcement of
intellectual property rights which is in conformity with the Agreement
on Trade-Related Aspects of Intellectual Property Rights (TRIPs) was set
up in 1995, when the Regulations of the People's Republic of China on
Customs Protection of Intellectual Property Rights was promulgated by
the State Council of the People's Republic of China and enforced. Now
China Customs has established an integrated IPR enforcement system including
declaration-checking, field examination of imports or exports goods, detaining
and seizing of infringing shipments, punishment of violating importers
or exporters and disposing of infringing goods, etc. and a branch of Customs
troops was trained who are rather specialized and professional in IPR
enforcement.
The Customs Protection of IPR in China has the following features:
1. Complete and advanced legal system
China Customs shall undertake the obligation to protect trademarks, copyrights
and related rights, patent and Olympic marks in accordance with the relevant
laws and regulations. Moreover, China Customs shall have the responsibility
in taking actions against infringing exports in addition to taking actions
against the infringing imports like the Customs services in other countries
or regions. Obviously, China has surpassed the minimum standard of the
TRIPs in respect of both the rights protected and the infringing goods
seized by the Customs. In spite of this, in order to promote the Customs
protection of IPR to a new level and solve some existing problems encountered
by the Customs during their enforcement, the State Council decided to
revise the Regulations of the People's Republic of China on Customs Protection
of Intellectual Property Rights in 2003 and the revised Regulations came
into effect since March 1, 2004. The new Regulations reinforced the Customs'
power in taking ex-offcio actions against infringing import and export
and removed the right holders' obstacles and financial burden in seeking
the protections by the Customs. The General Administration of Customs
promulgated relevant administrative rules to secure the application of
the Regulations effectively. The application of the revised Regulations
will surely bring positive effects on the Customs IPR enforcement activities
2. Effective Enforcement
To restrain the ever furious import and export of counterfeit and pirated
products, the General Administration of Customs demands all the Customs
offices at ports to focus their IPR enforcement on the import and export
of counterfeit and pirated goods. The Customs at ports, on condition that
legal trade could not be disturbed, make every effort to raise seizure-rates
of infringing goods. Since September of 1994 when China Customs began
to apply protection to intellectual property rights, over 4,000 shipments
of infringing goods, worth of more than RMB 600 million Yuan, were seized
by the Customs nationwide. The Customs enforcement of IPR was further
enhanced after China entered WTO and the seizures of infringing goods
increased yearly by 30% in average since the year of 2001. The legal interests
of both Chinese and foreign right holders have been safeguarded effectively
by the Customs' enforcement of IPR. The achievements gained by China Customs
in the field of IPR enforcement have been fully affirmed by the international
community. The World Customs Organization (WCO) holds that China Customs'
practice, in particular, of the enforcement on exports is worth of being
followed by the Customs authorities of its members. The recognition on
China Customs IPR enforcement by the world is affirmed by the coming WCO/China
Forum on Intellectual Property Enforcement.
3. Opened and transparent enforcement
Realizing that the Customs IPR enforcement needs support and assistance
from the society, China Customs sticks to the principle of open and transparency
both in concrete enforcement actions and policy-making process. This could
be illustrated by the following:
1) To introduce laws and regulations relating to Customs IPR enforcement
to the public, provide information service and answer questions on internet,
so as to instruct and encourage the right holders to seek Customs protection;
2) To invite, dozen of times annually by General Administration of Customs
and each port customs, right holders from China or other countries to
train the port Customs officers so as to upgrade their capability of distinguishing
the infringing goods. Thanks for the active monitoring and checking measures,
more than 90% of such violations were detected by the Customs officers
during their work without any information from the right holders beforehand,
though the right holders bear principal obligation in discovering the
import or export of infringing goods according to the legislation.;.
3) To invite the public to participate in policy-making work. During its
amending work of the Regulations of the People's Republic of China on
Customs Protection of Intellectual Property Rights, the General Administration
of Customs invited business representatives to make comments. The business
gave high evaluation and expressed their confidence in the co-operation
with China Customs in IPR protection;
4) To be engaged in public education on intellectual property protection.
Recognizing that the enterprises in China are in weakness, in general,
of IPR knowledge and consciousness, the General Administration of Customs
and the Customs of all-levels actively organize public education activities
of different kinds to introduce to the enterprises engaged in international
trade the knowledge related to the Customs enforcement, with a view to
enhance their IPR consciousness and ability in seeking the protection
by the Customs and strengthen the co-operation between the Customs and
business in the field of IPR protection.
II. The Stressed work in future
China customs, as a supervising organ of the country on import and export,
will strictly perform its responsibilities and to strike the infringing
activities related to import and export. The Customs IPR enforcement in
future would be focused on the following points:
1) To operate more actively the Customs IPR enforcement which is focused
on the violations of import or export of goods counterfeiting famous trademarks;
2) To research the possibility of raising the Customs seizures of infringing
goods by using technological methods;
3) To develop and strengthen the co-operation, based on the bilateral
administrative agreements, between China Customs and the Customs authorities
in other countries and regions in exchange of information and techniques;
4) To strengthen the public education, in co-operation with competent
authorities, to the enterprises engaged in international trade and import
processing with a view to encourage them to abide by the law self-consciously.
Knowing that the violations of IPR infringement related to import and
export remain seriously at present, China Customs enforcement has a long
way to go. China Customs determines to cooperate more closely with other
domestic enforcement agencies and foreign Customs authorities in the fight
against IPR violation.
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