Current Situation of Customs Enforcement of IPR in China and Stressed Work in Future


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.