Study On Infringing Goods Disposal Of Customs

Although disposal of infringing goods measures are not the most important in theCustoms Protection of Intellectual Property (IP), it will not only make the infringinggoods enter into the commercial areas, which would damage the interests ofIntellectual Property rights holders, but also harm the interests of publics and thirdparties, if they are disposed improperly. According to the requirements of the TRIPS,the disposal of infringing goods measures have been regulated by legislation in China,such as “Regulations on Customs Protection of Intellectual Property of the People’sRepublic of China” and “Implementation Measures of the Customs of the People’sRepublic of China on ‘the People’s Republic of China Intellectual Property CustomsProtection Ordinance’”. However, there are many defects of disposal of infringinggoods measures of Customs, for the reason that we are lack of experience in thepractice of IP with the short time of entering WTO, of the implement of InternationalConvention into domestic legislation, of understanding disposal of infringing goodsmeasures in the section46of TRIPS, and of balance of all partners’ interests duringthe law enforcement.In specific, first of all, it exist contradictions between current measures and theprovisions of TRIPS. The general principle of TRIPS is to prevent infringing goodsfrom entering into commercial field and possibilities of infringing again, whilecustoms measures are not consistent with it, in which legislative words are ambiguous,and it isn’t put in the first place that we should prevent copyright infringing goodsfrom entering into commercial field and possibilities of infringing again. Next, therealso exist contradictions in the current measures and basic principles of administrative law. Customs, as the administrative law enforcement agency, implementadministrative act, which has to comply with the basic principles of administrativelaw, for enforcement of IP is an administrative act. As to Customs measures, itcontracts with the basic principles of administrative law, especially violating theprovisions of respecting and safeguarding human rights principles and the principle ofproportionality. Finally, from the legislative perspective, there are some unreasonableprovisions of infringing goods disposal measures. Customs, as a law enforcement,should not only enforce the law and fight against illegal crime, but also balance theinterests of IP rights, the owners, and social publics. However, Customs hasn’t beenwell taken public order and good morals into account during disposing infringinggoods, which is easy to damage public interests. As to the protection of exportenterprises’ interests, Customs has not been balanced. Moreover, for the businessinterests of the licensing process, Customs also has not been well-maintained, whichis detrimental to the long-term development of China’s export processing enterprises.Through theoretical analysis, the method of comparative law, case analysis, andect., I think that legislative measures on disposal of infringing goods must bemodified. In detail,“Regulations on Customs Protection of Intellectual Property of thePeople’s Republic of China” and “Implementation Measures of the Customs of thePeople’s Republic of China on ‘the People’s Republic of China Intellectual PropertyCustoms Protection Ordinance’” should be modified. For example, statement, as theconsent of the right holder, in the “Implementation Measures” Article33, Section3,should be deleted. In addition, in the field of non-legislative, we also should takesome measures, such as encouraging summary procedure, and balancing interests ofright holders and owners accordingly; enhancing international cooperation, andimproving the status of Customs; promoting MOU system.