The Construction Of Ipr Protection Rules On Transit Goods In Free Trade Zone (China)

In the development of China's free trade zone,all kinds of intellectual property issues have become increasingly prominent,especially the border enforcement of intellectual property rights on transit goods.Neither TRIPs Agreement nor the relevant domestic laws such as Customs Law has made any express provisions on it.From the perspective of the nature of FTZs,the prevention of infringement of intellectual property rights in the FTZs and the convergence of the mainstream laws in the world,China customs authorities have the authority and necessity to take the IPR border enforcement on transit goods infringing in FTZs.At present,the U.S.and Europe had adopted corresponding IPR border enforcement rules according to their own situations.The U.S.courts established their law enforcement rules through a series of trial cases.That is,if the U.S.Customs considers the "possible cause" for the infringement of the transit goods in free trade zone,the U.S.Customs may take the initiative to enforce the border law enforcement measures in accordance with its own laws.On the other hand,the EU,through the improvement of legislation and the evolution of the rule of judicial application,finally established the "possibility of entering into market" rule and promoted the legislation.Comparing the border enforcement rules of the U.S.and Europe,we should learn from the EU's "possibility of entering into market" rule and suggest construction of IPR border enforcement on transit goods.Firstly,define the legal status of Customs special supervision areas such as FTZs,and Customs has theIPR border enforcement power on transit goods.Secondly,the specific IPR border rules on transit goods and corresponding procedures of border enforcements shall be clarified.The text of this article is structured as follows:Chapter One: The Necessity of taking the IPR border enforcement on transit goods in FTZs(China).Neither TRIPs Agreement nor the relevant domestic laws such as Customs Law has made any express provisions on IPR border enforcement on transit goods within the special regulatory zone of Customs.In view of the nature of the FTZ,the current proliferation of IPR infringement in various FTZs and the current trend of the mainstream of the world's legislation,this section argues that Customs has the power and necessity to taking the IPR border enforcement on transit goods infringing in FTZs(China).Chapter Two: Demonstrate the applicability of the enforcement rules of the IPR border enforcement on transit goods in the U.S.The U.S.legislation does not stipulate the border enforcement rules on transit goods,but its legislative trend creates the possibility of border enforcement of transit goods.The U.S.court found that when the transit goods entered the FTZ,it can be regarded as an "import" and "commercial use".Customs also considered that the transit goods had the "probable cause" of infringement and may result in taking border enforcement measures.As a result,the US law enforcement rules have some drawbacks and are not applicable,on the one hand,may be contrary to the regional principle of intellectual property rights,on the other hand,may impaired the free international trade.Chapter Three: Demonstrate the applicability of the enforcement rules of the IPR border enforcement on transit goods in the EU.The EU clearly pointed out that "external transit" is under its Customs law object.At the EU level,there have been four rounds of legislation on the IPR border enforcement,and in the fourth legislation,the border enforcement rules for transit goods have been clearly proposed.Judicial practice had generated a variety of perspectives on external transit.Soon after,the court subsequently introduced “manufacturing assumptions” in the trials of Philips v.Postech and Sisvel.The rule,which assumes that the goods are produced andcirculated in the country of the transit country,is judged according to the laws of the transit country.Finally,the EU Court concluded the "possibility of entering into market" rule through the cases of Montex and Nokia v.Philips.As a result,the EU IPR law enforcement rules are more reasonable.The EU has the power to enforce the law only if the goods have the possibility to transit into EU market.This rule also takes into account the territoriality of intellectual property principle and free trade principle.Chapter Four: Amendment of IPR Border Enforcement Rules on Transit Goods in Free Trade Zone(China).Based on above demonstration,it is suggested that we should learn from EU's "possibility of entering into market" rule,refine and implement the IPR border enforcement in our country.That is: Customs Law establishes Customs' authority to enforce law on FTZs;The Regulations on Customs Protection of Intellectual Property Rights explicitly define the objects of the border enforcement and specifies detail rules governing the border enforcement of transit goods.