| The Uruguay Round negotiation initiated in 1986 brought into it trade-related aspects of Intellectual Property Rights as a negotiation topic. As a result, Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) was adopted as an annex of the General Agreement on Tariffs and Trade 1994, which has a chapter for Border Measures.China formulated, promulgated and implemented in 1995 the Regulations of the People s Republic of China on Customs Protection of Intellectual Property Rights (hereinafter referred to as the REGULATIONS), partly pressed by the China-America Negotiation on IPRs, and partly out of the requirement of China's accession to WTO. To some extent, the REGULATIONS has been practiced for needy 10 years in our country. The conception of protection on IPRs and the sense of right protection have been widely accepted by the people. But there are still many enterprises which don't realize the importance to apply to Customs to protect their IPRs. The number of the appliers is relatively few, especially in the inland cities, which illustrates the lack of sense of IPRs customs protection of the IPRs-holders, and which also manifests the imperfect of the old IPRs customs protection system. China has accessed to the WTO on December 11, 2001. To fulfill our commitments, we need to revise the relevant laws concerning IPRs protection so as to comply with the TRIPs. Under this background, the new Regulations of the People's Republic of China on Customs Protection of Intellectual Property Rights was adopted at the 30th Executive Meeting of the State Council on November 26, 2003, promulgated by Decree No.395 of the State Council on December 2, 2003, and became effective as of March 1, 2004.This article includes three parts. It uses several studying methods, such as historical analysis, comparative analysis and analysis of positivism. It reviews the establishment and development of our IPRs Customs protection system; makes a comparison between China and America with respect to legal bases, the rights and obligations of the parties, the customs's position, responsibility and the scope of protection and so on; and puts forward some proposals on how to perfect our country's IPRs protection legal system .In the First Part, the author discusses two problems: one is the relationship between the three times China-America negotiation on IPRs and the formulation of IPRs customs protection in our country; the other is the development of our country's IPRs customs protection. In The Memorandum on IPRs reached in 1992 between China and America, only article 5 touches uponthe implement of IPRs. However, this issue has become the crucial topic in the second negotiation, and finally took large part in the People's Republic of China Intellectual Property Rights Memorandum of Understanding ~ 1995 Action Plan. After that, the State Council promulgated the REGULATIONS, which became effective on October 1st that year. In a sense, the formulation of our country's IPRs customs protection is the result of the Negotiations. With the development of our sci-tech and economy, in order to uphold regular trade order, to raise international image of Chinese products, to consummate our country's IPRs protection legal system, to improve our investment environment, and to comply with TRIPS, our country amended in 2000 the Customs Law, article 44 and article 91 of which are about IPRs customs protection. Our country amended the REGULATIONS in 2003. This proves that the development of our country's IPRs customs protection is the fruit of our country's own efforts.In the Second Part, the author compares the two countries' IPRs customs protection system from four aspects, namely legal bases, the rights and obligations of the parties, the Customs'position and responsibility, and the scope of object. In America, the IPRs border protection for imported products is mainly provided by Section 337 of the Customs Tariff Act, with customs regulations and relevant IPRs laws as the affliation. While in China, the IPRs customs protection is conducted mainly through some regulations and implementations,the content of the other relative IPRs laws is very simple, even has no relative rules. The rights and obligations of the parties in the two countries are basically similar, but there are still certain differences, for example, the holders of intellectual property rights in America have the optional rights to either complain to ITC or bring lawsuit to the Federal court, and different consignees or consignors of IPRs goods have different rights; while in China, they have the same rights. The obligations of the parties in the two countries are similar as a whole. The American Customs divides three situations to confiscate the suspected trademark-infringing goods, and takes different measures. American Customs divides two situations to adopt different procedures in conficating pirate goods. American Customs has no decisive rights for the suspected patent-infringing goods. In addition, American Customs has the power to release Exclusion Order or Cease and Desist Order based on its own investigation or the ITC's determination. Compared with those of the American Customs, the measures of our Customs are grossly unclear and simple. American section 337 encompasses almost all the IPRs to the Customs Protection. While our IPRs Customsprotection mainly focuses on the protection of trademark, patent, copyright as well as Olympic symbols, excluding other types of IPRs..The Third Part, the crucial and also creative part of this article, is about the proposals put forward by the author on the perfect of our IPRs customs protection legal system. The author holds that our country should adopt the voluntary or compulsory customs recording system according to different object of customs protection. When the suspected patent-infringing goods were confiscated or released, the owners or the consignees or consignors of the goods should provide the Customs with a security, which shall last all the time till the termination of all the procedures. Alternatively, the measure of executing ruturn in the Civil Procedural Law might be used as a reference. Our country should entrust the Customs the power to investigate and confiscate faked goods without prior application from the rightholders when the suspected infringement is obvious, and entrust the parties relevant rights to participate in inspecting the suspected infringing goods prior to the Customs' investigation. The range of the object of Customs protection should be expanded according to our country's reality as to include geographic symbols, traditional knowledge and biology resources and other types of IPRs. Furthermore, the issue of parallel importation should also be provided in relevant IPRs laws and regulations. When the Customs protection measures are in conflict with the interim measures in civil litigation, the American practice may be used as reference so as to allow for a parallel use of both measures. Another alternative is to establish a linkage between the two measures in the REGULATIONS or the Civil Procedural Law, transforming the Customs' confiscating measure into the court"s pretrial injunction. The Customs shall indemnify the parties for any losses grossly negligently or intentionally caused when executing measures of garnishment or confiscation. |
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