How to determine Whether imported and exported goods infringe intellectual property rights
(1) Notify the intellectual property rights holder and the customs will notify the customs of the name and quantity of the goods. , value, name of consignor and consignor, date of import and export declaration, date of customs detention, etc., notify the intellectual property right holder in writing. With the consent of the customs, the intellectual property rights holder may inspect the goods detained by the customs.
(2) Issue a detention voucher to the consignee and consignor. Customs will deliver the detention voucher for the goods suspected of infringement to the consignor and consignor. With the consent of the customs, the consignor and consignor can inspect the goods detained by the customs.
Customs investigation into the detention of goods suspected of infringement Customs detention After goods suspected of infringement are found, the suspected infringing goods and other relevant circumstances shall be investigated in accordance with the law. Consignees, consignees and intellectual property rights holders shall cooperate with customs investigations and truthfully provide relevant information and evidence. When customs investigates goods suspected of infringement, they may request the relevant intellectual property authorities to provide advisory opinions. If the intellectual property right owner and the consignee or consignor reach an agreement on the suspected infringing goods detained by the customs, and submit a written application to the customs and attach the relevant agreement, requesting the customs to lift the detention of the suspected infringing goods, the customs may terminate the investigation unless it believes that the suspected infringing goods constitute a crime. .
Release detained goods suspected of infringement
(1 ) If the customs investigates the detained goods suspected of infringement and cannot determine whether the goods infringe the relevant intellectual property rights, it shall notify the intellectual property right owner and the consignee and consignor in writing within 30 working days from the date of detaining the goods suspected of infringement. If the customs cannot determine whether the goods infringe the relevant patent rights, the consignee and consignor may request the customs to release the goods after providing the customs with a guarantee equivalent to the value of the goods. If the customs agrees to release the goods, the customs shall release the goods and notify the intellectual property right holder in writing. Intellectual property rights holders sue the People's Court for patent infringement disputes, a copy of the People’s Court’s notice of case acceptance shall be submitted to the Customs within 30 working days from the date of delivery of the written notice from the Customs.
(2) If the customs cannot determine whether the relevant goods infringe its intellectual property rights, the intellectual property rights holder may provide the customs with corresponding guarantees in accordance with regulations. Apply to the People's Court for measures to order the cessation of infringement or property preservation. If the Customs receives a written notice from the People's Court to assist in the seizure of the relevant goods within 50 working days from the date of detaining the goods suspected of infringement, it shall provide assistance; if it does not receive a notice from the People's Court to assist in the seizure or the intellectual property rights holder requests the Customs to release the relevant goods, the Customs shall provide assistance. Customs shall release the goods.
Confiscating the detained infringing goods
(1) Confiscate the infringing goods and notify the intellectual property right holder of the detained suspected infringing goods. If the customs determines that the infringing goods have infringed upon the intellectual property rights after investigation, they shall be confiscated and the intellectual property right holder shall be notified in writing of the following circumstances of the infringing goods:
①The name and quantity of the infringing goods;
②The name of the consignor and consignor;
③The date of declaration of import and export of infringing goods, the date of customs detention and the effective date of penalty decision;④The date of declaration of infringing goods Place of departure and place of shipment;
⑤ Other information related to the infringing goods that the customs can provide. Imported and exported goods or imported and exported articles are determined by customs investigation to infringe intellectual property rights and shall be confiscated by the customs according to regulations. However, if the parties concerned are unable to find out, they may be confiscated by the customs after 3 months from the date when the customs issued the relevant announcement.
(2) Disposal of confiscated infringing goods. Customs shall dispose of confiscated infringing goods in accordance with the following provisions:
① If the relevant goods can be directly used for social welfare undertakings or the intellectual property right holder is willing to purchase them, the goods shall be transferred to relevant public welfare institutions for social welfare undertakings or transferred to the intellectual property right holder for a fee.
② If the relevant goods cannot be transferred to relevant public welfare organizations for social welfare undertakings or transferred to the intellectual property right holder for a fee, and the infringing characteristics can be eliminated, the infringement shall be eliminated after the infringement is eliminated.After being characterized, they will be auctioned in accordance with the law; however, for imported goods with counterfeit trademarks, only the trademark marks on the goods will be removed, and they are still not allowed to enter commercial channels. The proceeds from the auction of the goods are turned over to the state treasury.
③ If the relevant goods cannot be disposed of in accordance with the provisions of items 1 and 2, they shall be destroyed. When customs auctions infringing goods, the opinions of relevant intellectual property rights holders shall be sought in advance. When customs destroys infringing goods, the intellectual property right holder shall provide necessary assistance. If relevant public welfare organizations use infringing goods confiscated by customs for social welfare undertakings and intellectual property rights holders accept customs entrustment to destroy infringing goods, customs shall conduct necessary supervision.
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