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China’s General Administration of Customs Issues Announcement on IPR Protection

On September 25, 2011, China’s General Administration of Customs (GAC) issued an announcement specifying matters related to protection of intellectual property rights (Announcement of the GAC [2011] No. 59, “Announcement”). The Announcement is issued based on Articles 9 and 11 of the “Regulations on Customs Protection for Intellectual Property Rights” (Order of the State Council No. 59, “Regulations”), promulgated by State Council on March 24, 2010.

Article 9 of the Regulations provides that:

  • If customs discovers that an owner of IPR who applied for the filing of IPR records did not provide the relevant details or documents in a truthful manner, the GAC can cancel its filing.

Article 11 of the Regulations provides that,

  • Where changes occur to the particulars of an IPR that has been filed for record, the IPR holder should go through formalities for the alteration or cancellation of filing particulars with the GAC within 30 working days of the occurrence of such changes.
  •  Where the IPR holder fails to go through formalities for alteration or cancellation in accordance with the preceding paragraph, thus seriously affecting others’ legal import and export or the customs’ legal performance of regulatory duties, the GAC may revoke the relevant record filing upon interested parties’ application or may do so on its own initiatives.

According to the Announcement, any filing for customs protection for IPR that has been approved by the customs and falls under the circumstances provided in Article 9 and Paragraph 2 of Article 11 of the Regulations may be cancelled by the GAC.

Where the stakeholders of IPR customs protection apply for cancellation of filing in accordance with the provisions of Article 11 of the Regulations, they should submit the application to GAC. The application should specify the applicant, respondent, matters of claim, basic facts and reasons and accompany relevant proofing documents.

Before the GAC makes the decision to cancel or keep the record filing, it should conduct investigation of the relevant circumstances.  During its investigation, it can request that the IPR owner submit written statements of defense within a stipulated time period.

Where the GAC makes the decision to cancel filing, it should notify the IPR owner in writing.  If the cancellation decision is made upon the stakeholder’s application, it should also notify the relevant applicant in writing.  If the stakeholder applies to cancel a filing, and the GAC decides to keep the filing, it should notify the relevant applicant in writing.

Where the filing is cancelled and the IPR continues to belong to the IPR owner who originally applied for filing, and the IPR owner reapplies to the Customs for record filing for the IPR within 1 year of the cancellation of filing, the GAC can refuse to process the application.

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