Please provide the specific security conditions and the list of required documents when applying for suspension of customs clearance of goods suspected of infringing intellectual property rights (such as patents). Released

The border-crossing customs clearance suspension system for intellectual property infringing goods is a very important procedure for protecting the legitimate rights of right holders and establishing a sound trade order. Based on my experience as a customs broker and relevant laws and regulations, I will provide a detailed explanation of the customs clearance suspension application procedure, specific collateral conditions, and required documents that you are curious about.

1. Legal Basis for the Customs Clearance Suspension System

Customs clearance suspension for intellectual property infringing goods proceeds according to the procedures specified in Article 235 (Protection of Intellectual Property Rights), Paragraphs 3 and 4 of the Customs Act. This system allows the customs office, when it determines that imported or exported goods are likely to infringe domestic intellectual property rights, to provisionally suspend customs clearance upon the application of the right holder, thereby providing the right holder with time to verify infringement and an opportunity to take legal action.

2. Applicant and Scope of Customs Clearance Suspension

Customs clearance suspension can be applied for by the right holder of the intellectual property right or their agent (patent attorney, lawyer, customs broker, etc.) to the Commissioner of the Korea Customs Service. The target goods are those imported or exported goods reasonably suspected of infringing intellectual property rights protected under domestic laws, such as patent rights, trademark rights, design rights, and copyrights.

3. Collateral Conditions for Customs Clearance Suspension Application

Providing collateral is a very important part of applying for customs clearance suspension, as it is an institutional mechanism to compensate for potential damages that importers/exporters may suffer due to the suspension. This is because if the customs clearance suspension application is found to be unwarranted or if infringement is not proven, leading to the lifting of the suspension, importers/exporters may incur damages such as increased logistics costs and delayed contracts.

• General Enterprises: An amount equivalent to 120% of the dutiable value of the suspected infringing goods must be provided as collateral. The dutiable value refers to the CIF price (price including freight and insurance) of the goods plus customs duties, etc.
• Small and Medium-sized Enterprises (SMEs): For SMEs, the collateral ratio is preferentially applied at 40% of the dutiable value to alleviate the burden for intellectual property protection. Whether an enterprise qualifies as an SME is determined according to the Framework Act on Small and Medium Enterprises.

Collateral can be provided in various forms recognized by the Customs Act, such as cash (deposit), surety bond, or bank guarantee. The important point is that collateral must be provided before the Commissioner of the Korea Customs Service approves the customs clearance suspension.

4. List of Required Documents

To request customs clearance suspension from the Commissioner of the Korea Customs Service, the following documents must be submitted. Each document is an essential element in proving the reliability and validity of the infringement claim.

• Customs Clearance Suspension Application Form:
  • Product Name: Accurate product name and model name of the suspected infringing goods.
  • Importer/Exporter and Country of Import/Export: Information about the entity importing/exporting the infringing goods (company name, address, etc.) and the country from/to which the import/export takes place.
  • Content and Scope of Intellectual Property Right: Detailed description of the intellectual property right (patent right, trademark right, copyright, etc.) claimed to be infringed, including registration number, application number, content of the right, and scope of protection.
  • Reason for Request: Specific reasons for requesting customs clearance suspension. For example, similarity to a specific intellectual property right, risk of confusion in the market, possibility of damage due to infringement of rights, etc., must be clearly stated.
  • Matters required to prove infringement: Specific evidence and explanation that the goods infringe intellectual property rights. This is a core part, which will be discussed in more detail in the next item.
• Documents proving legitimate ownership of the intellectual property right:
  • Patent Right: Patent registry, copy of patent certificate, patent gazette, etc.
  • Trademark Right: Trademark registry, copy of trademark certificate, trademark gazette, etc.
  • Design Right: Design registry, copy of design certificate, design gazette, etc.
  • Copyright: Copy of copyright registration certificate, copyright proof materials (date of creation, original work, etc.)
  • Other Rights: Court judgments, copies of license agreements, and other objective data that can prove the existence of the right and the ownership by the right holder.
• Materials specifically proving the infringement:
  • Comparative Data: Materials that specifically compare and analyze the suspected infringing goods with the right holder's genuine product or the content of the right (photos, drawings, detailed explanations, etc.). Drawing analysis is particularly important for patents and designs, while similarity comparison data is necessary for trademarks.
  • Expert Opinion: An opinion or appraisal from an expert in the field, such as a patent attorney or appraiser, regarding the infringement.
  • Evidence of Infringing Act: Specific evidence of the production, distribution, and sale of infringing goods (e.g., contracts, invoices, website captures, etc.).
  • Past Infringement Cases: Court judgments, administrative disposition records, etc., for identical or similar infringement cases.
  • Product Samples or Specimens: If possible, submitting samples or specimens of the suspected infringing goods is effective to allow the customs office to directly verify.
• Power of Attorney (when an agent applies): A document proving that an agent such as a customs broker or patent attorney has been formally delegated by the right holder if they are applying.

5. Post-Application Procedures and Precautions for Customs Clearance Suspension

The Commissioner of the Korea Customs Service reviews the application and submitted materials to decide whether to suspend customs clearance. If customs clearance suspension is decided, the importer/exporter is notified of the fact. The customs clearance suspension period is typically within 10 days (business days), during which the right holder must ultimately verify infringement and, if necessary, take judicial measures such as applying for an injunction against infringement in court. If judicial measures are taken, an extension of the customs clearance suspension period can be requested. If the right holder does not take appropriate action or if the infringement is not proven within this period, the customs clearance suspension is lifted, and the collateral is refunded.

To achieve successful customs clearance suspension, utilizing the customs intellectual property registration system in advance is also very effective. This is a proactive prevention system that allows the customs office to respond more quickly when it identifies suspected infringing goods if the right holder pre-registers their intellectual property rights with customs.

Applying for customs clearance suspension for intellectual property infringing goods is a complex procedure requiring specialized knowledge. Therefore, we strongly recommend seeking assistance from experts such as customs brokers for accurate and prompt processing. Only thorough preparation and swift response can protect valuable intellectual property rights and safeguard businesses from illegal trade.