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To those who have received the Commencement Notice (for importers) (Customs Form C No.5811)

 To those who have received the Notice of Commencement of Verification Procedures (Confirmation of Intention of Importer etc.) (for importers) (Customs Form C No.5811)


 Goods that infringe intellectual property are defined by Customs Law as “goods that shall not be imported”.


 If the customs detect suspect goods that infringe intellectual property in their inspection, the customs will take a step to verify whether the goods fall under the category of goods infringing intellectual property. Such procedure is called “Verification Procedures”.


 The Notice you have received from the customs is to inform you that this verification procedure has commenced by the customs.


 If it is determined that the goods fall under the category of goods that infringe intellectual property as result of the verification procedures, the goods are not allowed to be imported.



1. Flow of Verification Procedures


“Commencement Notice”

Notice of Commencement of Verification Procedures (Confirmation of Intention of Importer etc.)(for importers)(Customs Form C No.5811) .The same applies hereinafter.

Deadline Notice

Notice of Deadline for submission of evidence and opinions (for importers etc.)(Customs Form No.5820). The same applies hereinafter.


flow-c5811_e.jpg

(Note) Whether or not you insist that the goods do not fall under the category of goods prohibited to be imported (do not infringe intellectual property) will affect steps to be taken and consideration by the customs in the verification procedures. If you have not submitted your intention of dispute, or an opinion / evidence, the fact may be considered negatively for you by the customs. It may be more likely to be determined that the goods infringe intellectual property.



2. Expressing your opinion that the goods do not fall under category of prohibited to import (Submission of Intention of Dispute)


(1) In cases where you do not submit Intention of Dispute

 The customs will determine whether or not the goods fall under category of goods prohibited to import based on the application for suspension submitted by the right holder. The customs will notify you of the result of determination. (see 4. below)


(2) In cases where you submit Intention of Dispute

 If you express your opinion that the goods do not fall under category of prohibited to import (submit Intention of Dispute), it shall be submitted by post to the custom shown as [contact at] at the bottom of the Commencement Notice. It shall be reached the customs within 10 days (excluding Saturday, Sunday and holidays) from the date of your receipt of the Commencement Notice.

(Note) As for the Commencement Notice you have received, please keep it handy. Do not enclose it with your opinion and evidence.


 Please also be minded that the submitted Intention of Dispute will be disclosed to the right holder.

(Note) Only if you submit Intention of Dispute, you may submit your opinion and evidence. If you do not submit your opinion and evidence, it may be more likely to be determined that the goods infringe intellectual property (see 3. below for more details about submission of opinion and evidence). You may also submit your opinion and evidence with Intention of Dispute.


【Written statement on intention of dispute】

 Please write the following items in Japanese on any form and submit it by post to the customs.

– The day you wrote the form

– Your name (in alphabet(*)), address, telephone number, and occupation

(*) If it is written other than in alphabet in your identification card, please write your name not only in alphabet but also in the same character written in your identification card.

– Commencement Notice Number (the number written in the upper right corner of the Notice; e.g. 123A-12345)

– Statement that “I intend to dispute because the goods do not fall under category of goods prohibited to import”


【The goods which may be imported as not infringing intellectual property】

 If the goods fall under any of the following category as a result of the verification procedures, the goods may be imported.


(a) As for patent rights, utility model rights, design rights, trademark rights (limited to cases falling under article 37, item 8 of the Trademark Act), breeder’s rights or layout-designs of integrated circuits rights, in cases where the goods are not imported as a business.

(b) As for trademark rights (limited to cases falling under article 25 and article 37, item 1 of the Trademark Act), in cases where the goods are not imported by the person who produces, certifies, or transfers the goods as a business.

(c) As for copyrights and neighboring rights, in cases where the goods are not imported for the purpose of distribution in Japan.

(Note) In determining whether or not it falls under “as a business” in (1) and (2) above, or “purpose of distribution” in (3) above, we comprehensively consider various circumstances such as the purpose of importation of the importation, the quantity of imported goods, the occupation of the importer, and details of import transaction etc. Therefore, it is not simply determined “as a business” or “for the purpose of distribution” based on whether the quantity of goods is one or more pieces. It is necessary to hear from the importer etc. about these circumstances. For this reason, regardless of the quantity of goods in question, we may take verification procedures and decide whether infringing intellectual property or not based on submitted opinions and evidence etc.

(d) In cases where the goods are imported with the right holder’s consent.

(e) In cases where the goods are parallel imported goods related to trademark rights etc.

(f) In cases where the goods do not infringe any intellectual property for any reasons other than above.


(3) Deadline Notice

 After receiving your intention of dispute (2) above, the custom will send you the Deadline Notice. The notice states the deadline by when you may submit your opinion and evidence that the goods do not fall under category of goods prohibited to import.



3. Submission of written opinion and evidence


 You may submit evidence and express your opinion on the reasons why the goods do not fall under the category of goods prohibited to import (do not infringe intellectual property). Please submit it by post to by the deadline stated in “2.(3) the Deadline Notice” above to the customs shown as [contact at] at the bottom of the Deadline Notice.

(Note) As for the Commencement Notice and the Deadline Notice you have received, please keep it handy. Do not enclose it with your opinion and evidence.


 You may submit your opinion and evidence why the goods do not fall under the category of goods prohibited to import when you submit written statement of your intention of dispute. Even if in that case, you will receive the Deadline Notice. However, you do not need to resubmit your opinion and evidence unless you have additional opinion or evidence.

 Even if you submit an opinion and evidence, it does not necessarily mean that you can import the goods. Please also be minded that the submitted opinion and evidence by you will be disclosed to the right holder, and vice versa.


【Written Opinions】

 Please write the following items in Japanese on any form and submit it by post to the customs with evidence.

- The day you wrote the form

- Your name (in alphabet(*)), address, telephone number, and occupation

 (*) If it is written other than in alphabet in your identification card, please write your name not only in alphabet but also in the same character written in your identification card.

- Commencement Notice Number (the number written in the upper right corner of the Notice; e.g. 123A-12345)

- Description of goods, quantity

- Reasons for not infringing intellectual property


【Reasons for not infringing intellectual property】

 Depending on the description of the intellectual property described in 5. of the Commencement Notice, the reasons for not infringing intellectual property may be as follows, for example:

 (1) In case claiming that “not to be imported as a business” is the reason

 Please describe specifically about the purpose of importing the goods, your occupation, and details of the import transaction (e.g. where you purchase from, amount of purchase, payment method)

  (Applicable: trademark rights, breeder’s right, layout-designs of integrated circuits rights)

 (2) In case claiming that “not for the purpose of distribution” is the reason

 Please describe specifically about the purpose of importing the goods, your occupation, and details of the import transaction (e.g. where you purchase from, amount of purchase, payment method)

 (Applicable: copyrights, neighboring rights)

 (3) In case claiming that “obtained the right holder’s consent” is the reason

 Please describe specifically about the consent you obtained from the right holder.

 (Applicable: all type of intellectual rights)

 (4) In case claiming that “legitimate parallel imported goods” is the reason

 Please describe specifically that it satisfies the requirements for legitimate parallel import (see below “”).

 (Applicable: trademark rights)

 (5) In case claiming that “not infringe intellectual property rights” for any reason other than above

 Please describe specifically why it does not infringe intellectual rights.

 (Applicable: all type of intellectual rights)


【Evidence to clarify that the goods do not infringe intellectual property】

 Please submit supporting evidence depending on the reason for your claim that it does not infringe intellectual property. If you claim that it does not infringe intellectual property but no evidence is presented, it would be insufficient to support your claim, then it may be deemed to be infringing intellectual property.

 Depending on the reason for the claim, evidence to clarify that intellectual property is not infringed may be, for example, as follows. (any material of the following, a copy is acceptable)

 (1) In case claiming that “not to be imported as a business” is the reason

 (a) Documents indicating your occupation

 (b) Documents indicating what the imported goods are for or purpose of use of the imported goods

 (c) Your identification card

 (2) In case claiming that “not for the purpose of distribution” is the reason

 (a) Documents indicating your occupation

 (b) Documents indicating what the imported goods are for or purpose of use of the imported goods

 (c) Your identification card

 (3) In case claiming that “obtained the right holder’s consent” is the reason

 - Document of the right holder’s consent

 (4) In case claiming that “legitimate parallel imported goods” is the reason

 - Documents indicating that it is legitimate parallel imported goods(see below “”)

 (5) In case claiming that “not infringe intellectual property rights” for any reason other than above

 - Documents indicating that it does not infringe intellectual property rights


【Legitimate parallel import】

 In principle, if the goods is with the same trademark as the registered trademark and the same category of goods as designated goods in terms of trademark registration in Japan, it is not allowed to import. However, if you prove that the following items (a) to (c) are satisfied, the goods may be deemed as legitimate parallel import and be allowed to be imported.

 (a) In case where the trademark is lawfully attached by the trademark right holder in a foreign country or a person who is licensed by the right holder

 (b) In case where the trademark indicates the same source of origin as the registered trademark in Japan, due to the fact that the trademark right holder in the foreign country and trademark holder in Japan are the same person or have a relationship that can be regarded as the same person in legal or economic aspect.

 (c) In case where the trademark right holder registered in Japan is in a position who can control directly or indirectly the quality of goods, and it can be regarded that there is no substantial difference in the quality guaranteed by the registered trademark between the goods and the goods to which the registered trademark is attached by the right holder in Japan.



4. Notification of result of verification procedures


 Based on the written opinion and evidence submitted by both you and the right holder, the customs determines whether the goods are infringing intellectual property or not. The customs will also notify you of the result in writing.

 You may not import the goods unless it is determined that the goods do not fall under category of goods that infringe intellectual property.



5. Voluntary actions


 Until the customs confiscates the goods, you may take “voluntary actions” as follows

(1) Disposal or destruction

 In the presence of the customs officials, you may dispose of or destroy the goods. You may ask customs broker or international courier to do so on behalf of yourself.

(2) Amendment such as by removal of parts that infringe or may infringe intellectual property

 You may make amendment to the goods such as by removal of parts that infringe or may infringe intellectual property (amendment that can be easily undone is not acceptable). You may ask customs broker or international courier to do so on behalf of yourself.

 If the amended goods is confirmed that it does not infringe intellectual property, the goods may be imported. However, the removed parts (marks, etc.) is not allowed to be imported.

(3) Reshipment

 If you obtain export approval under the export control order, the goods may be reshipped (returned to a foreign country). However, consent of the right holder is required to obtain such export approval.

 If it is determined that the goods infringe trademark rights, copy rights, or neighboring rights, such export approval may not be obtained.

(4) Consent of the right holder

 If you obtain the consent of the right holder to import the goods and submit the written consent of the right holder to the customs shown [contact at] in the Commencement Notice or the Deadline Notice, you may import the goods.

(5) Voluntary abandonment

 You can waive your ownership of the shipment by filling out the Declaration for Abandonment of Articles (Customs Form C No.5380) and submitting it to the customs shown as [contact at] in the Commencement Notice or the Deadline Notice.



If you have any questions about this procedure, please contact us shown as [contact at] in the Commencement Notice.

 

PR activities of the Customs

Ministry of Finance

  • Ministry of Finance Japan