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Last week, 1,872 pairs of shoes were determined to be infringing products by Xiamen Customs of Fujian Province. These shoes were claimed to be infringing Nike's trademark "Air Max".
A few weeks ago, Quanzhou * Trading Company attempted to ship several thousand shoes through Xiamen Port with the goods name as “leisure shoes” in the customs declaration submitted to Xiamen Customs. In the Xiamen Port, during the routine inspection of the goods by Xiamen Customs Officers, it was discovered that some of the shoe box bearing the printed mark “Atr Max”, confusingly similar to Nike’s trademark “Air Max” as registered in the China Customs IP Registration System.
Xiamen Customs notified Nike of the discovery of the suspected infringing products. On Aug 2, 2016, Nike sent a correspondence to Xiamen Customs, confirming that the shoes are infringing product and Nike filed a petition of customs seizure. This is the first batch of trademark infringing products seized by Xiamen Customs in recent years.
According to IP Custom Protection Regulation in China.
Rule 2 IP customs protection refers to protection carried out against import or export goods in relation to exclusive right of trademark, copyright/related rights, patent (hereafter referred as “IP” ) in China.
Under such regulation, China Customs is authorized to enforce trademark, copyright and patent against infringing import or export goods. For customs IP protection, proprietor of trademark, copyright and patent may choose general IP rights registration, one-time petition for customs seizure, or both.
For the general IP right registration before China Customs, once it is registered, the protection will be valid for ten years. Upon expiring of such registration, proprietor may renew the registration for the next 10 years. The good news is, from Nov 1, 2015 on, official fee for customs registration is free. After the IP right is registered, it will be entered into a nationwide customs database. In the routine inspection carried out by China Customs, if Customs Officer discovers suspected goods, he will request the consignor to provide prove of authorization of the IP right. If the consignor fails to provide, China Customs will notify the proprietor and he/she is required to file a petition of Customs Seizure within three days if he/she wishes. China Customs will investigate and determine whether the product is infringing within 30 days from the date of seizure. If China Customs decide that the products are infringing, the products will be confiscated and destroyed. If China Customs, on the other hand, fail to make a decision and if it does not receive the notification of assisting execution from the court within 50 days from the date of seizure, the seized goods will be released.
For the one-time petition for custom seizure, if the proprietor discovers infringing product shipping from any port, he/she may file a petition before the China Customs responsible for the port to initiate the custom IP protection procedure with bond equivalent to the value of the seized goods. The proprietor needs to file a lawsuit before competent court against the consignor for IP infringement. For the one-time petition for custom seizure, China customs will not determine the products are infringing or not. Proprietor is required to file start a lawsuit before the competent court against infringer. If customs fail to receive the notification of assistant execution from the court within 20 days from the date of seizure, the seized goods will be released.
