Comparison Between The IPR in China Relevant Provisions Of the Foreign Trade Law 2004 and 1994

I have just added links to the Foreign Trade Law of the People's Republic of China 1994 and 2004 on IP Dragon's blogroll ( under "IPR in China Laws and Regulations").

The IPR relevant article 6 Foreign Trade Law 1994 is almost identical to article 6 Foreign Trade Law 2004 (most favoured nation treatment and national treatment because of articles 4 and 4 TRIPs, respectively, before 2001 because of article 5 (1) Berne and aricle 3 Paris Conventions)

Article 14 Foreign Trade Law 1994 is similar to article 13 Foreign Trade Law 2004 (the departments that get information from the foreign trade operaters should keep business secrets to themselves, see pages 15-16 Thesis).

Article 27 (2) Foreign Trade Law of 1994 prohibits explicitly infringing upon intellectual property rights and article 27 (5) Foreign Trade Law 1994 "other acts violating laws or administrative rules and regulations" can also be used to base a prohibition against IPR infringement.

It can be concluded from article 14 Foreign Trade Law of 2004 that import and export of goods is not free if law or administrative regulation provides otherwise.
Different from Foreign Trade Law 1994 is that Chapter V of the 2004 amendment is dedicated to Foreign-trade-related Intellectual Property Protection. Article 29 Foreign Trade Law 2004 includes: "Where any of the import goods violates any intellectual property right and, at the same time, endangers the foreign trade order, the foreign trade department of the State Council may take such measures as prohibiting the import of the relevant goods that the infringer has produced or sold for a certain period of time." No word about export goods that violate IPRs. This is in compliance with TRIPs, since article 51 TRIPs only obligates that WTO members shall adopt procedures to enable a right holder that has valid grounds that counterfeit trademark or pirated copyright goods import may take place, to lodge an application. Article 2 Regulations of the People's Republic of China on Customs Protection of IPRs 2003, however, goes beyond this obligation and applies to both import and export.

Article 30 Foreign Trade Law 2004 is to give the foreign trade department of the State Council the legitimacy to take measures in case of an IP right holder that hinders the licensee from questioning the validity of the IPR involved in the license agreements, conducting forced package license or providing exclusive selling back conditions in the license agreement, etc.

Picture: threecee

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The Fifty Days Time-limit in China's Customs Regulations Is Compliant With Article 55 TRIPs

Article 55 TRIPs [1] is the border protection equivalent of article 50 (6) TRIPs. Article 55 TRIPs states that after 10 days the goods in detention shall be released if the applicant was noticed of the suspension and the customs have not been informed that another party than the defendant, has been initiating proceedings leading to a decision on the merits of the case; or that the court has taken provisional measures prolonging the suspension of the release of the goods. In appropriate cases, this time-limit may be extended by another 10 working days. So the duration of suspension has a limit of a maximum of twenty working days.

China’s customs regulations prescribe that customs shall release the goods, within 20 working days, if the right holder has applied for this suspension, pursuant to article 15 (1) Regulations 2003 [2], and the court has not been informed that another party than the defendant has initiated proceedings leading to a decision on the merits of the case, pursuant to article 24 (1) Regulations 2003 [3]. So this is compliant to article 55 TRIPs.

Article 20 Regulations 2003 [4] states that the goods that are suspended upon the right holder’s request shall be released within thirty days if they have not been found to infringe intellectual property rights. It is TRIPs compliant, because it is implied here that the court has been informed that another party than the defendant has initiated proceedings leading to a decision on the merits of the case.

First I thought that the fifty day time-limit of article 55 TRIPs was not compliant with TRIPs, but I was astray:

Article 50 (6) TRIPs which states that after provisional measures were taken proceedings leading to a decision on the merits of the case shall be initiated within 30 days (in fact 31 days), followed by twenty days before the party other than the defendant has initiated proceedings leading to a decision on the merits of the case, before customs will release the suspended goods if no infringement was found.



Notes:
[1] Article 55 TRIPs explicitly refers to other conditions for importation or exportation, making it applicable to export.
[2] Article 15 Regulations 2003: Where the right owner applies to detain the suspected goods in accordance with Article 13 of these Regulations and submit the guarantee according to Article 14 of these Regulations, Customs shall detain the suspected goods, notify the right owner in writing and send the detention receipt to the consignees or consignors.
[3] Article 24 (1) Regulations where Customs have detained the suspected goods according to Article 15 of these Regulations and have not received a notice of assistance on execution from the People's Court within twenty business days from the date of detention;
[4] Article 20 Regulations 2003: Where the right owner requests customs to detain the suspected goods after customs find the imported or exported goods infringing recorded intellectual property right and notify the right owner, the customs shall initiate the investigation and confirmation on the goods whether to infringe intellectual property rights or not within thirty business days from the date of their detention. Where it cannot be confirmed, customs shall notify the right owner in writing immediately.

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