Last updated: 
6 December 2019

China is a global manufacturing centre, and is also the source of a significant proportion of the world’s IP infringing goods. Chinese Customs has the power to seize IP infringing goods being either imported to or exported from China. This is a powerful option for rights owners. IP rights owners often find that enforcing IP rights in China has flow-on effects reducing IP infringing goods in other parts of the world.

In order to enable Chinese Customs to seize goods that infringe their IP rights, IP rights owners must file to record their registered IP right with Chinese Customs. This can be a copyright, a registered Chinese trade mark, or a granted Chinese patent.

If recording a utility model patent or design patent, Chinese Customs require the applicant submit a patent evaluation report issued by CNIPA. The patent owner may request this from CNIPA at any time.

To record your IP right with Customs, you must submit the following details:

  • the name, place of registration or nationality of the IP owner
  • the name, details and the relevant information of the IP right
  • the details of the exercise of any IP license
  • the name, place of origin, customs at the point of entry/exit, importer and exporter, major characteristics and prices of the goods for which you have authorised use of the IP right
  • the manufacturer, importer, exporter, customs at the point of entry/exit, major characteristics and prices of goods that are known to have infringed upon your IP right.

Where Customs discovers import or export goods that are suspected of infringing upon your recorded IP right, they will notify you immediately in writing.

You then have three working days to verify the authenticity of the goods, apply to have the goods seized, and provide a bond.

If you wish, you can authorise your domestic agents in China to record your IP rights for  you. The recordal is valid for up to 10 years and can be renewed. Customs does not charge an official fee for recording IP rights. 

Chinese Customs provide a searchable online public database of all IP rights recorded with customs. The database is available in Chinese only, and can be difficult to access at times from Australia.

As of July 2019, there were 48,210 IP rights recorded with Chinese Customs, consisting of 42,851 trade marks, 2,750 copyrights, and 2,609 patents (980 invention patents, 350 utility model, and 279 design patents).

With so many shipments and IP rights to check for, it is helpful if IP owners can provide information on suspected infringing shipments to Customs authorities.

Applying for the seizure of goods (No prior recordal with General Administration of Customs of China (GACC))

It is also possible to apply to have IP-infringing goods seized in the absence of an IP right recordal with Chinese Customs.

You will have to submit an application form and the relevant supporting documents, along with clear evidence of the infringement.

An application form must include the following information:

  • the name, place of registration or nationality of the owner of the IP right
  • the name, details and the relevant information of the IP right
  • the names of the consignee and consignor of the goods suspected of infringing goods
  • the name and specification of the goods suspected of infringing
  • the port by which, the time at which and the means of transportation by which, the goods suspected of infringing may enter into, or exit from, China.

You will also be required to provide a guarantee equal to the value of the goods for compensation of any loss that may be incurred by the consignee or the consignor due to an improper application that leads to the bad faith seizure of goods, and to cover fees for the storage, custody and disposal of the goods after they are seized by Customs.

Customs seizures in Australia

It is also possible to have the Australian Border Force seize trade mark or copyright-infringing products being imported into Australia. Unlike Chinese Customs, the Australian Border Force cannot seize patent or design-infringing goods.

IP owners will need to lodge a Notice of Objection, a legal document that allows the Australian Border Force to seize infringing goods. You must provide details of your registered trade mark or copyright materials. The Notice of Objection is valid for four years, and can be re-lodged, or withdrawn if it is no longer required.

You will also need to lodge a Deed of Undertaking, a formal agreement to repay the costs resulting from any seizures made (i.e. transportation, storage and destruction costs).

If the Australian Border Force seizes infringing goods, it will notify the importer and the objector. The importer has 10 working days to make a claim for the release of the seized goods. If no claim is made the goods are forfeited.

If the importer makes a claim for release of the goods, the Australian Border Force will notify the objector, who then has 10 working days to commence legal action or consent to the release of the goods. If the objector does not commence legal action in the courts within this period then the Australian Border Force must release the goods to the importer.

This system is most effective if the rights owner is able to provide the Australian Border Force with information on suspected infringing shipments.

More information on the Notice of Objection scheme is available from the Australian Border Force at https://www.abf.gov.au/importing-exporting-and-manufacturing/importing/how-to-import/types-of-imports/intellectual-property

IP Australia has more information on customs enforcement available here: https://www.ipaustralia.gov.au/ip-infringement/enforcing-your-ip/seizing-counterfeit-goods