On December 2 2003 the State Council promulgated new Regulations for the Customs Protection of Intellectual Property Rights. Effective March 1 2004, they replace the regulations which became effective on 1 October 1995, following the February 1995 US-China Intellectual Property Rights Enforcement Agreement.
Under the 1995 regulations, customs protection was only given with regard to trade marks, patents and copyrights, which are protected under Chinese law. The protection afforded under the new regulations also covers copyright-related rights, such as performers' rights, database rights and public lending rights.
The 1995 regulations required that the intellectual property be registered with the General Administration of Customs before Customs would take any enforcement measures. The new regulations explicitly provide that this is not a prerequisite for customs enforcement measures. Because the local Customs authorities conduct random inspections of goods that may infringe intellectual property rights, more attention is likely to be paid to recorded intellectual property rights during such inspections.
Under the 1995 regulations, registrations are valid for seven years and are renewable for additional periods, provided the relevant intellectual property rights do not expire within the period. The new regulations extend the validity of such periods to 10 years.
Both the 1995 regulations and the new regulations grant customs authorities the power to release detained goods in certain circumstances. One of the circumstances is where the importer or exporter of detained goods has paid a bond. Under the 1995 regulations, the bond had to be twice the amount of the CIF (cost, insurance and freight) or FOB (freight on board) price of the goods. The new regulations now require that the bond be equal to the price of the goods.
There are no changes to the bond that intellectual property rights owners are required to pay when applying for the detention of suspected infringing goods.
Carson Wen and Jason Ma
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