How to Protect Your Intellectual Property in China
A Relatively Complete IPR Legal System and Weak Enforcement Measures
When talking about Chinas Intellectual Property Right (IPR) legal system, we need to see two aspects, which are IPR law legislation and enforcement of IPR laws. The current IPR laws in China cover almost all the IPR subject matters, which include Patent Law for invention protection, Trademark Law for trademark protection, Regulation on the Protection of Software for software protection, Anti-unfair Competition Law for the protection of undisclosed information, Copyright Law and Information Internet Transmission Regulation for copyright and information internet transmission right protection. Around Chinas accession to World Trade Organization, to make its IPR legal system meet the requirements of WTO agreements, China significantly revised the IPR laws. The legislation process also adopted many comments and opinions from foreign governments and organizations, which made the legal system very close to the international rules and trends.
Much more criticizing voices are on the enforcement of IPR laws rather than the legislation. Although central government has taken various measures to strengthen the enforcement, some factors including local interest protectionism, insufficiency of qualified IPR officials and judges, imbalance of economy development etc. still impair the effectiveness of enforcement efforts.
Many foreign firms and individuals have not realized the great changes of Chinas IPR legal system. Pirated CDs and counterfeited products of world brands are not the whole. Ones with idea that China has no IPR legal system or registration IPR in China is useless will tamper their competitiveness in China.
How to Enforce and Protect your IPRs in China
Generally, there are two approaches to search for the IPR protections——the juridical procedures and the administrative methods. A civil action against the infringer in the peoples court is the most popular method for infringee to protect his or her IPR. According to the White Paper on IPR Protection issued by State Council, the Chinese courts have continuously expanded the range of IPR-related trials to include cases concerning copyright, trademarks, patents, unfair competition, computer software, new varieties of plants and integrated circuit layout designs.
China has strengthened the criminal protection of IPRs in recent years by revision of the criminal law and of issuance judicial explanation on handling IPR related criminal cases. From 2000 to 2004, the procuratorial organs at all levels approved the arrests of 2,533 suspects of IPR infringement, and instituted prosecutions against 2,566 suspects. In 2004, the arrests of 602 people suspected of IPR infringement were approved, and prosecutions against 638 suspects were instituted (from White Paper on IPR Protection).
In terms of administrative measures for IPR protection, several ministries function differently. State Intellectual Property Office (SIPO) at the national level is responsible for the prosecution of patents. Trademark Office is under the State Administration on Industry and Commerce (SAIC). The Trademark Office will be responsible for trademark registration, administrative recognition of well-known marks, and enforcement of trademark protection. National Copyright Administration (NCA) is responsible for copyright administration and enforcement.
In 2003, the Chinese government issued the Regulations of the Peoples Republic of China Regarding Customs Protection of Intellectual Property Rights, which enable the General Administration of Customs (GAC) to be one of the most important administrative department to enforce the IPRs. The proprietor shall file written applications to the GAC if they apply for customs recording of intellectual property rights protection. When a right owner suspects infringing goods are about to enter or exit China, he or she may submit a written application to GAC at the suspected point of entry or exist where protection is sought.
Tips for Your IPR Protection
1.You can not enforce a right you do not have. China has a first-to register system that requires no evidence of prior use or ownership, leaving registration of popular marks open to third party. Before you enter into this market, the registration of trademark should be done in advance. Because of the independence of jurisdiction, foreign patent can not get protection in China without an application and prosecution procedure at China National Intellectual Property Office.
2.Copyright registration. Foreigners could get an equal copyright protection according to international treaties to which China is one signatory, subject to the reservations made by Chinese government. Registration of copyright with National Copyright Administration is not a mandatory procedure for copyright protection in China. However, the registration will be useful and help the copyright owners to enforce their IPR under some circumstances.
3.Watch your IPRs. You will not be informed before an infringement activity against your IPR. You need to engage lawyer to check the bulletins published by the Patent Office, Copyright Office and the Trademark Office for you. If you find that someones attempt to register or apply your IPR, you need to apply for an opposition in required time. The markets and the advertisements are main channels for you to find infringing information of your IPR.
4.Alert letter does not work at all under some circumstances. It may even help the infringing party to evade the legal liabilities. As one general principle, do not send such a letter before you have collected sufficient evidences acceptable by the court to improve the illegal actions.
5.Legal advice and assistance. Since the complexity of Chinas IPR legal system, qualified legal advice and assistance definitely will help you to succeed in the enforcement of your IPRs. (Chen Jihong 2006-8-27, Publishing Today)