Regulations prescribed by Customs

The regulations governing the application for detention, revocation of a detention, payment, provision and release procedures for a security or assurance, required documents and other matters to be followed as prescribed in Articles 72 to 74 shall be prescribed by the Competent Authority coordinating with the Ministry of Finance.

The regulations governing the procedures, the required documents, and other related matters as to Customs’ implementing measures for protecting rights of trademarks, the proprietor’s request for inspection of detained articles, for related data of the infringing articles and for samples of suspected articles as prescribed in Articles 75 to 77 shall be prescribed by the Ministry of Finance.

Application to Customs for detention

A proprietor of a registered trademark may file an application to Customs for detention of articles that are suspected of infringing the rights in the trademark.

Any application referred to in the preceding paragraph shall be filed in writing, accompanied by a statement of the facts of the infringement and a security in an amount equivalent to the duty-paid price of the imported articles or the F.O.B. price of the exported articles, assessed by Customs, or equivalent assurance.

Customs shall immediately give a notice to the applicant once the application for detention is admitted; if suspected articles are detained because the application conforms to the preceding paragraph, Customs shall give a notice to the applicant and the owner of detained articles in writing.

The owner of detained articles may request Customs to revoke the detention on provision of a security equivalent to two times the security referred to in the Paragraph 2 or equivalent assurance while following the procedures in accordance with applicable Customs Regulations on import and export articles clearance.

Where the applicant is awarded a final judgment of the court stating that the detained articles have infringed trademark rights, the owner of detained articles shall be liable for all relevant expenses incurred as a result of the delay of containers, warehousing, loading, and unloading of the detained articles.

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Revocation of detention

Customs shall revoke the detention if any of the following exists:

(1) within a period of twelve days after the applicant has been served notice of admission of the application, Customs has not been informed that proceedings claiming that the detained articles are infringing articles pursuant to Article 69 have been initiated by the applicant;
(2) a final ruling of the court which dismisses the litigation initiated by the applicant claiming that the detained articles are infringing article;
(3) a final judgment of the court which holds that the detained articles do not infringe trademark rights;
(4) the applicant requests for revocation of the detention; or
(5) the circumstance in accordance with Paragraph 4 of the preceding article.
The period as prescribed in Subparagraph 1 of the preceding paragraph may be extended by another twelve days by Customs in appropriate cases.

If the detention is revoked pursuant to Paragraph 1, Customs shall follow the procedures in accordance with applicable Customs Regulations on import and export articles clearance.

Where the detention is revoked pursuant to Subparagraphs 1 to 4 of Paragraph 1, the applicant shall be liable for all relevant expenses incurred as a result of the delay of containers, warehousing, loading, and unloading of the detained articles.

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Release of security

If a final judgment of the court holds that the detained articles do not infringe trademark rights, the applicant shall compensate the owner of detained articles for injury caused to them through wrongful detention of articles or provision of a security as prescribed in Paragraph 4 of Article 72.

The applicant shall enjoy the same right as a pledgee in relation to the security as prescribed in Paragraph 4 of Article 72. The owner of detained articles shall enjoy the same right as a pledgee in relation to the security as prescribed in Paragraph 2 of Article 72. However, all relevant expenses incurred as a result of the delay of containers, warehousing, loading, and unloading of the detained articles as prescribed in Paragraph 4 of the preceding article and Paragraph 5 of Article 72 shall be paid prior to compensate the applicant or the owner of detained articles for injury.

Customs shall release the security as prescribed in Paragraph 2 of Article 72 upon request by the applicant in any of the following:

(1) where the security is no longer required as the applicant has either obtained a final judgment in his/her favor or reached a settlement with the owner of detained articles;
(2) where the applicant proves that the owner of detained articles has been notified but failed to exercise his/her rights within twenty days or more after the detention is revoked on the grounds prescribed in Subparagraphs 1 through 4 of Paragraph 1 of the preceding article and hence there is injury caused to them through wrongful detention, or after such owner obtained a final judgment in his/her favor; or
(3) where the owner of detained articles agrees to release the security.

Customs shall release the security as prescribed in Paragraph 4 of Article 72 upon request by the owner of detained articles in any of the following:
(1) where the security is no longer required as either after the detention is revoked on the grounds prescribed in Subparagraphs 1 through 4 of Paragraph 1 of the preceding article or such owner has reached a settlement with the applicant;
(2) where such owner proves that the applicant has been notified but failed to exercise his/her rights within twenty days or more after the applicant has obtained a final judgment in his/her favor; or
(3) where the applicant agrees to release the security.

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Suspension of release upon Customs’ own initiative

Where Customs acts upon its own initiative and finds that imported or exported articles in respect of which it has acquired prima facie evidence that a trademark right is likely to be infringed, Customs shall give a notice to the proprietor of the trademark and the importer/exporter.

In giving the notice referred to in the preceding paragraph, Customs shall specify a period for the proprietor of the trademark to come to the customs to identify the infringement and furnish proof of infringement, and Customs shall also specify a period for the importer/exporter to furnish proof of non-infringement. However, the period may be extended once only at the request of the proprietor of the trademark or the importer/exporter to Customs in writing, stating legitimate reasons for failure to furnish proof.

If proof of infringement has been furnished by the proprietor of the trademark and proof of non-infringement has not been furnished by the importer/exporter pursuant to the preceding paragraph, Customs may suspend the release of such articles.

If proof of infringement has been furnished by the proprietor of the trademark and proof of non-infringement has been furnished by the importer/exporter pursuant to Paragraph 2, Customs shall give a notice to the proprietor that he/she may, within three working days after the notice is given, file an application for detention pursuant to Paragraph 1 of Article 72.

If the proprietor did not file within the period prescribed in the preceding paragraph an application for detention pursuant to Paragraph 1 of Article 72, Customs may release the articles after retaining a representative sample.

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Provision of information of suspected articles upon request

Without prejudice to the protection of confidential information of detained articles, Customs may allow the inspection of detained articles upon request by the applicant or the owner of detained articles referred to in Article 72 or the proprietor of the trademark or importer/exporter referred to in the preceding article.

After Customs detained suspected articles pursuant to Paragraph 3 of Article 72 or suspended the release of such articles pursuant to Paragraph 3 of the preceding article, Customs shall inform the proprietor of the trademark, at his/her request, of the names and addresses of the import/exporter, the consignor/consignee, and the quantity of the suspected articles.

Proprietors of trademarks are permitted to use the data obtained on the basis of preceding paragraph solely for the purpose of investigating and bringing legal actions concerning alleged infringements of their trademark rights without disclosing such data to any third party.

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Request to Customs on taking samples of suspected articles

When identifying the infringement pursuant to Paragraph 2 of Article 75, the proprietor of the trademark may request Customs to take samples of suspected articles and hand them over or send them to such proprietor for identification by providing a security in an amount equivalent to 120 percent of the duty-paid price of the imported articles and relevant duties and taxes or the F.O.B. price of the exported articles and relevant duties and taxes, assessed by Customs, provided that it is necessary to take samples for identification, as well as such proprietor has undertaken in writing not to infringe the legitimate interests of the importer/exporter and not to use the samples for unjustifiable purposes.

The amount of the security referred to in the preceding paragraph shall not be less than NT$3,000. "If such proprietor does not return the requested samples within the period for furnishing proof of infringement prescribed in Paragraph 2 of Article 75, or if the samples returned are not the same as the original ones or are defective, Customs shall hold the security to compensate the importer/exporter for injury caused to them.

The importer/exporter of samples of articles shall enjoy the same right as a pledgee in relation to the security held as prescribed in preceding paragraph.

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