Intellectual Property Rights in Customs: Protected Types and Infringement Acts Released

Intellectual Property Rights (IPR) infringement is treated as a critical issue during the import and export customs clearance process. As it undermines the integrity of trade and can adversely affect the national economy, customs authorities strictly regulate such activities. Article 235, Paragraph 1 of the 「Customs Act」 explicitly prohibits the export and import of goods that infringe on intellectual property rights, demonstrating the significance of IPR protection in international trade. From my perspective as a customs broker, I will explain in detail the types of IPR infringement acts that can cause issues during clearance and the specific rights that are protected.

1. Types of Intellectual Property Rights Protected during Customs Clearance

Under the Customs Act, the following six types of intellectual property rights are protected during import and export clearance, each safeguarding distinct areas of creation and innovation:

• Trademark Rights (Registered under the 「Trademark Act」)
  Rights granted to marks (text, figures, colors, etc.) used to identify specific goods or services. This prevents consumer confusion and protects the business reputation of the trademark holder.
• Copyright and Neighboring Rights (Under the 「Copyright Act」)
  Copyright protects creations in literature, academia, or art, while neighboring rights protect those contributing to the transmission of works, such as performers, phonogram producers, and broadcasters. These rights safeguard the creator's effort and the value of expression.
• Variety Protection Rights (Registered under the 「Act on Protection of New Varieties of Plants」)
  Exclusive rights granted to newly bred plant varieties. This encourages R&D investment in agriculture and biotechnology and induces development in the seed industry.
• Geographical Indication Rights (Registered under the 「Act on Quality Management of Agricultural and Fishery Products」 or protected by treaties/agreements)
  Rights granted to agricultural or fishery products (and their processed goods) possessing specific regional characteristics. It protects the reputation, quality, and characteristics of the origin, securing consumer trust and enhancing producer competitiveness.
• Patent Rights (Registered under the 「Patent Act」)
  Exclusive rights granted to inventions. This promotes technological innovation and protects inventors, allowing them to commercially utilize their inventions.
• Design Rights (Registered under the 「Design Protection Act」)
  Rights granted to creations that induce aesthetic sensations through a combination of shape, pattern, and color of an article. This protects the exterior design of products, strengthening competitiveness and contributing to the design industry.

2. Types of Acts Constituting IPR Infringement during Clearance

According to Article 4 of the 「Public Notice on Customs Clearance Procedures for IPR Protection」, the following acts are considered infringements. This encompasses various forms of infringement occurring during the export/import process, beyond simply manufacturing infringing goods.

• Trademark Infringement: Using a trademark identical or similar to a registered trademark on identical or similar goods, or transferring, lending, exhibiting, or importing/exporting infringing goods (「Trademark Act」 Article 108). A representative example is importing clothing or accessories manufactured using unauthorized famous brand logos.
• Copyright and Neighboring Rights Infringement: Using works without the holder's permission (reproduction, performance, public transmission, distribution, etc.) or distributing reproductions made through such infringement for profit (「Copyright Act」 Article 124). This includes the import/export of pirated music, videos, software, and publications.
• Variety Protection Infringement: Commercially using protected varieties (or varieties derived from essential characteristics) without permission, or propagating, producing, selling, or importing/exporting seeds thereof (「Act on Protection of New Varieties of Plants」 Article 84). This involves the unauthorized distribution of seeds or seedlings of registered new varieties.
• Geographical Indication Infringement: Using names identical or similar to registered GIs, or marking false origins on goods to mislead consumers regarding products protected by GIs. For example, importing/exporting products with false GIs to disguise them as regional specialties.
• Patent Infringement: Practicing a patented invention (production, use, transfer, lease, import, exhibition, etc.) as a business without the patent holder's permission (「Patent Act」 Article 127). This applies to the import/export of products manufactured using specific patented technologies or methods without authorization.
• Design Right Infringement: Practicing a registered design or a similar design for the production, use, transfer, lease, import/export, or exhibition of articles (「Design Protection Act」 Article 114). This includes importing/exporting products produced by unauthorized imitation of registered designs.

3. Role of Customs Authorities and Precautions for Trade

Customs authorities are at the forefront of preventing the cross-border movement of IPR-infringing goods. If goods are suspected of infringement, this can lead to customs clearance suspension, holding, disposal, and even criminal punishment. Rights holders can request protection by declaring their IPR to customs (Customs IPR Declaration System), which allows customs to conduct more active enforcement based on the declared rights information.

Importers and exporters must conduct thorough Due Diligence to ensure that their trading goods do not infringe on others' intellectual property rights. Particular caution is required when dealing with new partners or products. It is essential to meticulously verify whether the manufacturer has obtained legitimate permission to use the IPR or if the product is a genuine item free from infringement. Please bear in mind that under relevant laws, liability may not be waived even if the attempt to clear customs was made without knowledge of the infringement.