| In order to contain the further development of infringing acts in international trade fields, all the countries in the world intensify the legislation and judicature of intellectual property rights, at the same time, they focus on administrative protection, especially border protection by the Customs. Meanwhile, the WTO's Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS is an abbreviation.) definitely accords the Customs the function of protecting intellectual property rights.With our entry into WTO, the TRIPS have taken effect on China. Currently, the main legal basis on which the Customs carry border protection of intellectual property rights is the Regulations of the People's Republic of China Regarding Customs Protection of Intellectual Property Rights (Referred to below as the Regulations), stipulated by the State Council in 1995. Owing to the short legislative time and inadequate experience, there are many problems in the Regulations. In order to further perfect the system of border protection in China, the paper studies the TRIPS and the related regulations in America, to help the constitution of the system of border protection hi ChinaThe paper is divided into four parts.The first part briefly introduces the border protection. Firstly, it briefs the meaning of border protection in intellectual property rights, the necessity of executing border protection measures. Then it studies the related regulations hi international conventions. Moreover, it emphatically analyzes the special requirements related to border protection in the TRIPS. Finally the paper introduces the rectification in border protection in Japan.The second part studies the negotiation on intellectual property rights between China and America and the legislation of border protection in China. The part introduces the legislating background and the main contents of the system of border protection. Firstly, the paper introduces the legislating background, contents and negotiating process of "Special Article 301" . Then, combining with the three conflicts between China and America arising from the investigation of American "Special 301", the paper analyzes the constantly perfect process of our border protection from nothing to existence, from regulations to law. Finally, the paper anticipates the conflicts between China and America will focus on the enforcement of the TRIPS.The third part analyzes the characteristics of the border protection in our inland, by comparing the difference of the border protection among the TRIPS, Hong Kong and America.Firstly, at the aspect of the scope of intellectual property to which border protection apply, the Regulations apply to intellectual property rights related to import and export goods including the exclusive right to use a trademark, copyright and patent right. Secondly, at the aspect of import and export of goods, besides prohibiting to import infringing goods like other Customs, our Customs specially have the responsibility of prohibiting export of infringing goods.Thirdly, at the aspect of enforcement procedures of border protection, our Customs have the right to act upon their own initiative and to suspend the release of suspected infringing goods.The forth part analyzes the problems and perfection in legislation of border protection, combining with the basic procedures of border protection by the Customs. This part is the innovations.Firstly, any owner of rights requesting the Customs to protect his intellectual property rights should apply beforehand for putting the protection of intellectual property rights on record. However, this compulsory stipulation not only violates the TRIPS, but also increases undue burden to applicants. Thereby, the text considers that "Putting the protection of intellectual property rights on record" is only a premise the Customs act upon their own initiative, matching the system of yearly examination, in order to solve the invalid problem.Secondly, while the applicant requests the Customs to detain the suspected... |
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