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| 7th Report of Market Access Ombudsman Council (March 18, 2002) |
1. Complainant: Tokyo Chamber of Commerce and Industry
2. Ministry concerned: Ministry of Finance
3. Complaint:
We are a supplier of brand products on an OEM basis. However, every time we import goods produced in our overseas factory, we are supposed to submit to the customs office a letter pledging that the goods will be sold and delivered to our customers owning the brand name or a written agreement from the customers.
Since this procedure is not well known, it is difficult and time-consuming to get the customers' understanding of the procedure and have them submit a written agreement. Therefore, the customs office should clarify and make thoroughly known the procedure concerning application for importing OEM products by issuing a notification. In addition, from the standpoint of reducing the burden, the forms of the written pledge and agreement that are required in applying for importing OEM products should be fixed.
4. Corresponding Policy of the Ministries concerned:
(1) An article that infringes trademark or other intellectual property rights is prescribed as contraband good under Article 21-1-5 of the Customs Tariff Law. When the customs office considers that a cargo on import declaration infringes trade mark or other rights, the office initiates procedures to determine whether the cargo infringes trade mark or other rights (certification procedures), notifies the rights holder and the importer to that effect, and gives them the chance to submit proof and to state their opinions.
(2) Since certification procedures, if initiated in the case in question, prolong customs clearance, the customs office may permit import without going through certification procedures if the import declaration is accompanied by documents certifying the authenticity of the declared cargo. The documents are to be submitted on a voluntary basis.
(3) In this case in question, the forms of the documents to be submitted on a voluntary basis are not fixed. They will do as long as they certify the authenticity of the declared cargo. Among such documents are order slips from the rights holder, regular licensee, etc., a copy of the contract, and a written agreement on import issued by the rights holder.
(4) An importer may submit beforehand documents certifying goods in question are declared items on a voluntary basis in order to prevent certification procedures from being initiated by the customs office after the declaration of import. It is not necessarily required to submit the documents to the customs office in import declaration. Even if the documents are submitted, the customs office will initiate certification procedures if it suspects infringement of rights. Therefore, the documents in question are one form of sales illustrations. It is not that the customs office will automatically permit import without initiating certification procedures as long as specific documents are submitted.
(5) Moreover, if the customs office fixed the forms of the documents and did not accept papers other than in a fixed form, it would unnecessarily tighten regulations. Therefore, we believe it is more reasonable to accept documents in a variety of forms rather than fix the forms.
5. Remarks
The complainant accepted this policy.