On Legal Protection Of Intellectual Property During Import

There are two primary ways for protecting Intellectual Property Rights (IPR) during import - the investigation system and the customs protection system. By modifying the Foreign Trade Law and the Regulations of Customs Protection of IPR, China has established its investigation system and perfected its customs protection system, so as to enhance her protection of IPR during import. However, because of imperfect rules and the absence of relevant enforcement measures, the existing systems still need much improvement.Whether seeking the protection of new intellectual rights or rights to traditional knowledge, resources or expressions, it is very important to closely examine the protection of IPR during import. Based on the study of comparable systems in the USA and EU, this article tries to analyze the questions that exist in our current system of legal protection and looks for the ways for further improvement.This article is divided into five sections. The first analyzes the necessity of legal protection of IPR during import. Because of the close relationship between IPR and imports and the negative effects that illegal trade has had on foreign trade management, all countries must realize the necessity of IPR protection during import.The second section is a review on TRIPS and its role in protecting IPR during import. By focusing on protection during foreign trade, TRIPS merged IPR protection into the WTO's multi-lateral trade mechanism, raised the protection level of IPR, and enhanced its enforcement.The third section reviews the legal protection of IPR during import in the USA, and introduces the 337-investigation system and customs protection system. The 337-investigation system is characterized by adaptability, self-consistency, tight duration and severe relief measures. In terms of law, although the 337-investigation system seems rather fair in procedure, it is in fact substantially unfair. The customs protection system in the USA focuses on few kinds of selected IPR, and protects the IPR concisely and efficiently during import.The fourth part analyzes the legal protection of IPR during import in the EU. This part focuses primarily on the EU's domestic enforcement measures of IPR protection and customs protection. In recent years, the EU's protection of IPR during import has become increasingly strengthened. With such an enlarging scope of protection, the EU's IPR protection shows trends similar to TRIPS plus.The fifth part discusses the legal protection of IPR during import in China and methods for its perfection. First, two primary systems of IPR protection during import in China are introduced: the IPR investigation system, and the system of customs protection. An obvious gap in the legal protection of IPR during import exists between China and the western world. In the investigation system, the definition of the applicant is rather uncertain, and requests for initiating an investigation are difficult to master. Without detailed procedures, the investigation system is difficult to operate, and subsequent relief measures are also inadequate. In the customs protection system, problems such as narrow protection scope, heavy burden on the applicant, severe procedures and limits on the power of customs need to be addressed.This article provides some detailed measures to address the above issues. For the investigation system, the applicant and request should be defined; the procedures and relief measures should be outlined in more detail. As for the custom protection, the scope needs to be enlarged, the burden of the applicant should be diminished or removed, and the power of customs for volunteer action should be enhanced.