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To those who have received the Commencement Notice (for importers) (Customs Form C No.5812)

 To those who have received the Notice of Commencement of Verification Procedures (for addressee) (Customs Form C No.5812)


 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.


 The goods under the verification procedures are not allowed to be reshipped to a foreign country. 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 may be confiscated and destructed by the customs.



1. Flow of Verification Procedures


“Commencement Notice”

Notice of Commencement of Verification Procedures (for addressee)(Customs Form C No.5812) The same applies hereinafter.


flow-c5812_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 consideration by the customs in the verification procedures. If you have not submitted an opinion or 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. Submission of written opinion and evidence


 Please send:

 - Your written opinion stating the reasons why it does not fall under the category of goods prohibited to be imported and

 - the evidence to clarify the reasons above

 by post to the customs shown as [contact at] at the bottom 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.


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


【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, you may receive the goods.

(1) 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.

(2) 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.

(3) 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.

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

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

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


【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 7. 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: patent rights, utility model rights, design rights, 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: patent rights, utility model rights, design rights, 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】

(1) Parallel imported goods related to trademark rights 

  In principle, if the goods is with the same trademark as the registered trademark and 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 you may receive the goods. 

(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.

(2) Parallel imported goods related to patent rights 

(A) In principle, if a patented product lawfully distributed outside of Japan by a registered patent right holder in Japan or a person who can be regarded as same as the registered patent right holder (hereafter referred to as “patent holder etc.”) is imported by other than the patent holder etc. or a person who is authorized to import the product, it is not allowed to import.

 However, if you prove that it does not fall under any of the following items (a) and (b), the product may be deemed as legitimate parallel import and be allowed to be imported.

(a) In case where the importer is a person to whom the product is transferred from the patent holder etc. and there is an agreement between the patent holder etc. and the transferee to exclude Japan from the area of sale or use of the product.

(b) In case where the importer is a person who received the product from a transferee of the product from the patent holder etc. or a subsequent transferee, and there is an agreement between the patent holder etc. and the transferee to exclude Japan from the area of sale or of use of the product, and it is clearly displayed on the product about the exclusion of Japan from the area of sale or use.

(B) In (A) (a) above, a material for confirming that there is an agreement between the patent holder etc. and the transferee to exclude Japan from the area of sale or the area of use of the product, means a document of contract or similar document that confirms that there is such an agreement. 

(C) In (A) (b) above, “clearly displayed on the product about the exclusion…” means that at the time of transaction of the product, the main body or packaging of the product is imprinted, printed, attached with a sticker or hang tag etc. and it indicates that Japan is excluded from the area of sales or use of the product so that it can be easily recognized with ordinary attention. In addition, it has to be the case where it can be confirmed at the time of import that such indication was displayed at the time of the transaction of the product.

(3) Parallel imported goods related to utility model rights and design rights 

 The same concept is applied as (2) Patent above. 



3. 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 receive the goods unless it is determined that the goods do not fall under category of goods that infringe intellectual property.



4. Voluntary actions


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

(1) Voluntary abandonment

 You may 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.

(a) If you take voluntary abandonment during the verification procedure, the verification procedure is terminated.

(b) You may receive other items than the goods abandoned by your “voluntary abandonment”.


Declaration for Abandonment of Articles (Customs Form C No.5380)


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

 Visiting the customs office shown as [Contact at] in the Commencement Notice, you may make amendment by yourself 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).

 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) 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 as [contact at] in the Commencement Notice, you may receive the goods.



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

 

PR activities of the Customs

Ministry of Finance

  • Ministry of Finance Japan