In recent years, China has continuously strengthened the criminal protection system for intellectual property rights, especially in the field of customs enforcement, forming a three-dimensional governance model of “administrative-criminal linkage”. Riding the tailwind of policy, the criminal protection of intellectual property rights is gradually entering an era of strict regulation.

In 2021, the "Criminal Law Amendment (XI)" of China raised the maximum sentence for trademark crimes to 10 years, presenting rights holders with a powerful "imperial sword" for criminal enforcement of their rights. The "Regulations on Handling Foreign-related Intellectual Property Disputes" issued by the State Council, which will officially come into effect on May 1, 2025, emphasize in Article 14 that the commercial departments of the State Council may investigate acts of infringement that endanger the order of foreign trade and take necessary measures. Article 26 of the "Regulations of the People's Republic of China on Customs Protection of Intellectual Property Rights" also stipulates that when the customs authorities implementing intellectual property protection discover suspected criminal cases, they shall transfer the cases to the public security organs for handling according to the law; Article 29 stipulates that for the import or export of goods that infringe on intellectual property rights and constitute a crime, criminal responsibility shall be pursued according to the law. The accumulation of these policy signals means that customs detention cases are no longer merely administrative penalties but are more likely to become a fulcrum for leveraging criminal accountability.

However, there is often an invisible "execution gap" between legal provisions and practical operations. Even if the value of the goods in some cases far exceeds the criminal filing standards for the crime of counterfeiting registered trademarks or the crime of selling counterfeit goods bearing registered trademarks, how to quickly transfer the case from administrative procedures to the criminal track still requires professional and persistent efforts.

Recently, in handling a case of foreign rights holder trademark infringement involving customs detention, Chang Tsi’s legal team encountered the aforementioned difficulties. Our client, an international brand trademark rights holder, received a "Notification of Confirmation of Intellectual Property Rights" from the customs, informing us that a large number of products suspected of infringing the trademark rights, which had been recorded in the customs system, were found in the goods declared for export by a certain company. Upon confirmation, the above-mentioned products were goods that were not legally authorized, and we, being authorized, applied to customs to lawfully detain the batch of goods within the official deadline. As the quantity of the infringing goods involved in the case is large and the value of the infringement has reached the criminal filing standard, our rights holder hopes to quickly transfer this case from a customs administrative case to a criminal case, in order to take appropriate action against the infringing parties for their infringement.

We first expressed the rights holder's aforementioned request to the customs, but initially, the customs refused to immediately transfer the case as a criminal lead to the public security organs on the grounds that "the case has not yet entered the formal investigation stage, and whether the infringing marks on the detained goods constitute the same trademark in the sense of criminal law still requires further investigation and verification". Additionally, customs refused to inform us of the timeline for transferring leads in similar cases on the grounds that their internal processing procedures should not be disclosed to the public, merely replying that if we have an urgent need, we may choose to report the case to the police ourselves.

Given the customs' lack of enthusiasm for transferring case leads, and considering the typically long cycle for customs to handle related cases, to avoid a prolonged wait that could result in missing the appropriate opportunity to pursue criminal responsibility, we decided, after research, to attempt reporting the case through multiple channels. Since the case involved the export of infringing goods, there was some dispute over the jurisdiction of the criminal case. We first attempted to report the case to the public security bureau where the customs was located. After on-site review of our reporting materials, the public security bureau at the customs location considered that the case involved the export of goods and was special in nature, and should be under the jurisdiction of the place where the infringer is registered. When we turned to consult the public security bureau at the infringer's registered domicile, the officer checked their internal system and stated that the main personnel of the infringer, such as the legal person, did not have movement trajectories in the registered location, and at present, there was no actual evidence to prove that the logistics trajectory of the goods involved passed through their jurisdiction, thus they also returned the case.

Facing the dilemma of jurisdictional disputes, we continued the efforts to communicate with customs. On one hand, we expressed the rights holder's concern for the case and the desire that the infringing party should receive due punishment, and on the other hand, we also discussed with customs about the jurisdictional issues of similar cases. Through repeated communication and legal research, it was finally clarified that if the case were to be converted into a criminal case, it should be handled by the public security organs at the location of the port where the goods were seized. Subsequently, we proactively attempted to contact and communicate with the public security at the port where the goods were seized, reporting the case details, and continuously urging customs to transfer the case as a criminal lead. Ultimately, customs transferred the case as a criminal lead to the public security of the port jurisdiction.

This case illustrates that when customs detention encounters criminal thresholds, it is particularly important for trademark rights holders to overcome the "last mile" of administrative-criminal linkage. The successful conversion of a customs detention case into a criminal case relies on an accurate grasp of legislative dynamics, deep involvement in the enforcement process, and meticulous construction of the evidence chain. When facing significant infringement, rights holders should abandon the mindset of "passive waiting" and actively promote administrative-criminal linkage through legal procedures to maximize the effect of rights protection.