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Home > Export/Import > Customs Answer(FAQ) > 2003 System of an application for suspension of the importation of those goods infringing intellectual property rights (FAQ)

2003 System of an application for suspension of the importation of those goods infringing intellectual property rights (FAQ)


 

  When owners of a patent right, utility model right, design right, trademark right, copyright and neighboring right or plant breeder’s right or those who request an injunction of unfair competition (i.e. those who can request suspension or prevention based on Paragraph 1, Article 3 of the Unfair Competition Prevention Law (Right to demand an injunction) on an infringement of business profits by an act stipulated in item 10, Paragraph 1, Article 69-11 of the Customs Law) (hereinafter referred to as “right holder”) become aware of the importation of those articles considered to infringe their intellectual properties, they are entitled to make an appeal to the Director-General of regional customs for taking the procedure of determining whether the article constitutes infringement. However, such an appeal may not be accepted when the customs does not find the fact of possible infringement after examining alleged evidence, etc. submitted by the right holder.

  When the Director-General of regional customs discovers any import goods against which an appeal for suspending importation has been made and accepted, he/she shall commence the procedure of determining whether the goods constitute infringement, and shall inform the right holder and the importer of the fact that the procedure has begun. At the same time, the right holder shall be also informed of the name and address of the importer and exporter as well as of the manufacturer/producer when they are known from descriptions, etc. on the goods.

  Director-General of regional customs is entitled to give the order to the appealing party to deposit money, as considered necessary, at the value estimated to cover any damages possibly generated against the importer (loss of income, warehouse expenses, etc.) for the period up to the completion of the identification procedure. When the appealing party does not obey this order, the Director-General might cancel the identification procedure and give an import permit.

  Upon completion of the identification procedure, the right holder and the importer shall be informed of the result. When infringement is confirmed, the goods may be confiscated by order of the Director-General.

  In principle, after 10 workdays (exclusive of holidays of government organizations) from the start of the determination procedure for those articles alleged to infringe patent rights, utility model rights or design rights, the procedure could be cancelled and the importation could be permitted at the request of the importer, provided that other conditions are satisfied and that the importer submitted security money.

  At the request of the right holder filed during the said period, Customs will make an inquiry with the Patent Office about their opinion on technical scope, etc. of patent rights. The Patent Office is supposed to give a reply within 30 days, and Customs will make a determination by referring to the Patent Office’s opinion. During this period, the importer is not entitled to make an appeal for cancellation of the determination procedure, but will be allowed to make such appeal after 10 workdays from the arrival of the Patent Office’s reply.

  (Article 69-12 through 69-20 of the Customs Law)

 


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