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The State Council decided to amend IPR customs protection regulations

Chinese Premier Wen Jiabao recently signed a decree, publicizing the Decision of the State Council on Amending Regulations of the People's Republic of China on Customs Protection of Intellectual Property Rights. The revised regulations will be effective as of April 1, 2010.

The Regulations of the People's Republic of China on Customs Protection of Intellectual Property Rights will be amended as followings.

First, change Article 11 into this, "in case of any change in respect of the recordation of an intellectual property right, the holder of the intellectual property right shall go through the procedures of modification or cancellation of recordation with the General Administration of Customs within 30 working days from the date of such change."

"If the holder of the intellectual property right does not go through the procedures of modification or cancellation of recordation in accordance with the above-mentioned regulations, which brings serious impact for other legal import and export or influences Customs' legal supervision function, the General Administration of Customs can cancel related recordation according to the application of persons concerned or actively cancel related recordation."

Second, change the first subparagraph of Article 23 into this, "After presenting an application to the Customs for taking protective measures, the holder of the intellectual property right may, in accordance with the Trademark Law of the People's Republic of China, the Copyright Law of the People's Republic of China, the Patent Law of the People's Republic of China and other regulations, apply to the people's court for the adoption of measures to order the cease of the infringing act or for preservation of property against the suspected infringing goods under detention.

Third, add the fitth subparagraph to Article 24, i.e. "Where, before the customs determine that the suspected infringing goods under detention have infringed the intellectual property right, the holder of the intellectual property right cancels the application on detaining the suspected infringing goods."

Fourth, change the third subparagraph in Article 27 like this, "Where confiscated goods that have infringed upon Intellectual Property Rights can be used for public welfare, customs shall transfer the goods to the relevant public welfare organizations to be used for public welfare. Where the owner of the Intellectual Property Rights wishes to acquire the goods, customs may transfer the goods to the owner of the Intellectual Property Rights for compensation. Where confiscated goods that has infringed upon Intellectual Property Rights cannot be used for public welfare and the owner of the Intellectual Property Rights does not wish to acquire the goods, customs may auction off the goods according to law after removing the infringing characteristics, but imported counterfeit trademark goods should not be permitted to enter commercial channels only after the removal of the trademark label on them unless special situation occurs. Where the infringing characteristics cannot be removed, customs shall destroy the goods.

Fifth, change Article 28 into Article 31, i.e. “Where articles carried or sent by mail by individuals into or out of China exceed the amount for personal use or the reasonable amount and infringe upon the Intellectual Property Rights stipulated in Article 2 hereof,these goods will be treated as infringing ones.

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