Study On The Legal Issues Of Intellectual Property Rights Border Measures

Intellectual property rights border measures are important content of the border protection of intellectual property rights. As the goods infringing upon intellectual property rights increase unceasingly, intellectual property rights border measures become more and more important. Although the TRIPS agreement specially stipulates rules relating to border measures, some developed countries as intellectual property rights power promote higher standards implementation of intellectual property rights border measures based on their own interests through multilateral treaties, bilateral treaties, national legislation and so on, to ask other countries including developing countries to undertake more duties outside of TRIPS agreement. In recent years, in the promotion of developed countries, “Anti-counterfeiting Trade Agreement”(ACTA) have reached, “Trans-Pacific Partnership Agreement"(TPP) negotiations are underway, and a large number of bilateral trade agreements have reached or in the negotiating. All these things mean that in the foreseeable future, TRIPS-Plus terms of IPR border measures in these agreements will form a huge external pressure to Chinese intellectual property rights border measures rules."Customs Protection of intellectual property rights regulations" promulgated in 1995 and revised twice in 2003 and 2010, has made special provisions on intellectual property rights border measures which have become an important legal system of intellectual property protection in the foreign trade of our country. Facing the mounting international pressures and the continuous development of intellectual property rights trades in domestic, China should improve the rules of intellectual property rights border measures to enhance the scientificity and effectiveness of them. Considering the dispute on the protection of intellectual property rights caused by the establishment of China(Shanghai) Pilot Free Trade Zone, this paper combs out the legislative rules of the intellectual property rights border measures, and puts forward the deficiencies and improvement suggestions of China’s intellectual property rights border measures, and the applicability of these rules in the Shanghai FTZ are also discussed on that basis.This paper consists of introduction, text and conclusion, and there are five chapters in the text.The first chapter is to summarize the intellectual property rights border measures. This chapter points out the legal attribute, concept, historical evolution and existence value of intellectual property rights border measures, holds that the intellectual property rights border measures are administrative measures to some extent, which are different from border protection, provisional measures, customs protection.The second chapter is to analyze on the legislative evolution of intellectual property rights border measures. This chapter analyzes the process of the development of intellectual property rights border measures from domestic and international law aspects, and clarifies the dynamic process of the legislative rules. It finds that the applicable scope of intellectual property rights border measures continue to expand, and they are more likely to start with ex officio action, and the standard of the implementation is getting higher and higher.The third chapter is to study on the applicable conditions of intellectual property rights border measures. This chapter discusses the applicable objects of border measures, which including the object, subject and limit, and analyzes the customs and other competent departments as the main body of the implementation of border measures.The fourth chapter is the applicable procedures of intellectual property rights border measures. This chapter analyzes the start-up according to the application and according to the authority, notice of suspension and duration of suspension, inspection and information, security or equivalent assurance, indemnification, the disposal of infringing goods.The fifth chapter is the advance of China’s intellectual property rights border measures. This chapter mainly analyzes the basic situation of China’s intellectual property rights border measures legislation, from the perspective of legal framework, legal origin, basic content, and discusses the deficiencies and suggestions of China’s intellectual property rights border measures. According to the disputes of the applicable of intellectual property rights border measures rules for China(Shanghai) pilot free trade zone, this chapter firstly discusses on the legal nature of the free trade area, and then analyzes the implementation of the FTZ、FTA of China’s border measures, finally, it puts forward proposed criteria for the implementation of border measures in China(Shanghai) pilot free trade zone, that is “line release, secondary control”.