The enforcement mode of customs protection of intellectual property rights is divided into two types: protection by authority and protection by application. In view of the fact that it is usually difficult for intellectual property rights holders to obtain information on the import and export commodities of other enterprises in a timely manner, the main way for customs to protect intellectual property rights is to investigate and deal with infringements by authority.
According to the provisions of the Regulations of the People’s Republic of China on Customs Protection of Intellectual Property Rights, the filing of intellectual property rights by enterprises is a prerequisite for customs to take active protection measures. Therefore, in order to rely on the power of customs to protect intellectual property rights for enterprises, enterprises should file their intellectual property rights with customs as soon as possible. At the same time, filing can have a deterrent effect on other enterprises that attempt to infringe, force enterprises that are already producing and selling infringing goods to stop infringing, and prevent enterprises that are not malicious infringing from “accidental” infringements. For intellectual property rights that are in the filing period, customs will protect them by authority.
Generally speaking, when customs finds that suspected goods and articles that infringe intellectual property rights that have been filed with the General Administration of Customs are imported, they will suspend customs clearance procedures and contact the intellectual property rights holder to confirm the rights. For goods and articles that the rights holder confirms as suspected infringing, submits an application for customs protection of intellectual property rights and submits a guarantee, the customs will detain them according to law and deal with them according to regulations.
From the perspective of infringement characteristics of cross-border e-commerce products, trademark infringement accounts for more than 98% of the total cross-border e-commerce intellectual property infringement. The Trademark Law of the People’s Republic of China is an important basis for customs to carry out customs protection of intellectual property rights. However, the protection of trademark rights by customs cannot be directly equated with the provisions of the Trademark Law of the People’s Republic of China. The root of the difference comes from the difference between the private right attribute of intellectual property rights and the public power attribute of customs intellectual property protection.
According to Article 57 of the Trademark Law of the People’s Republic of China, the following three acts are all acts of infringement of trademark exclusive rights:
(1) Using a trademark identical to its registered trademark on the same kind of goods without the permission of the trademark registrant;
(2) Using a trademark similar to its registered trademark on the same kind of goods without the permission of the trademark registrant;
(3) Using a trademark identical to or similar to its registered trademark on similar goods, which is likely to cause confusion.
However, not all trademark infringements fall within the scope of customs intellectual property protection. Because intellectual property rights are private rights, private rights can be waived. When a party files a record with the customs, the customs can interpret the party’s failure to file a similar trademark as a waiver of customs protection.