Intellectual Property Rights in China |
Introduction
These guidelines are an introduction to a specialist field. Companies should take comprehensive professional advice from specialists in IPR law. Strategic China through our Chinese legal partners can guide you through this process ensuring preventative measures are in place and where necessary, remedial and enforcement measures undertaken.
What is IPR
Intellectual property rights (IPR) are the legal rights over intellectual products. These are typically divided into patents, copyright, design rights, trademarks and confidential information. All of these rights exist in China.
Patents
China's Patent Law 1984 (amended 1992 and 2000) provides protection for patents for inventions, utility models and designs, as opposed to UK legislation which has separate enactments dealing with patents and designs (the UK has no equivalent protection for utility models). Article 22 of China's Patent Law provides that any invention for which a patent right may be granted must be novel, inventive and have a practical application.
First to File System: China follows the 'first to file' rather than 'first to invent' system for patents. This means that patents are granted to those who file first even if this means they are not the first inventor.
Priority: Where a Chinese company files for patent on the same subject matter as a foreign company's patent in their home country but before that foreign company has filed in China then the foreign company's Chinese application will take precedent over the Chinese compan''s application. This is under the principle of mutual recognition under the TRIPs agreement and consistent with UK and EU patent law.
Applying for a Patent: Foreign companies must use an authorized patent agent to file for a patent. The responsible authority is the State Intellectual Property Office (SIPO) in Beijing. SIPO have local offices across China responsible for enforcement of patents.
Infringement: Section 11 of China's Patent Law defines infringement as follows "No person may, without the authorization of the patentee, make, use, offer to sell, sell or import the patented product; or use the patented process or use, offer to sell, sell or import the product directly obtained by the patented process, for production or business purposes".
Trademarks
Legislation: China's Trade Mark law 1982 (revised 1993 and 2001) provides protection for trademarks. The definition of trademark extends to words, designs, letters, numerals, three-dimensional symbols, colours and colour combinations. As China is a signatory of the Madrid Protocol it is required to extend reciprocal trademark registration with the UK.
First to Register: China operates a first to register system but proof of use is required to maintain the trademark although no prior evidence of use is necessary when first registering.
Applying: Foreign companies must use a Chinese Trade Mark Agent to make the application to the Trade Mark office in Beijing. Once the application is made it is advertised in the China Trademarks Gazette and is open to opposition for three months.
Copyright
Legislation: China's Copyright Law 1990 (amended October 2001) provides protection from plagiarism for original works of literature, art, natural science, social science, engineering technology in the following forms:
- written works
- oral works
- musical, dramatic and choreographic works
- works of fine art and photographic works
- cinematographic and television works
- drawings of engineering designs & product designs and descriptions thereof
- maps, sketches and other graphic works
- computer software
- other works as provided for in laws and administrative regulations
Legislation: The China Patent Law governs this area. This law defines 'inventions-creations' as inventions, utility models and designs. To be eligible for a design patent, the shape, pattern, colour or combination of these must be novel as at the date of filing.
Applications: Foreign companies must instruct Chinese agents to make applications to SIPO.
Domain Names
Foreign companies must have branches or offices in China and its main domain name server be in China. It is possible to register domain names in Chinese characters.
Registration: CNNIC (China Internet Network Information Centre) administers the top level domain name: .cn. Registration can be done online and take approx 10 days. Disputes are handled through the civil courts.
Layout-Designs of Integrated Circuits Regulations
Legislation: The 2001 Regulations on the Protection of Layout-Design of Integrated Circuits provide protection for the layout of integrated circuits. A 'layout-design of integrated circuit' is defined as "the three-dimensional disposition of an integrated circuit, consisting of two or more elements with at least one active element and some or all of the interconnections, or such a three-dimensional disposition prepared for the manufacture of an integrated circuit".
Registration: Foreign companies must apply through an agent to SIPO.
Relevant Authorities
Administrative and legal agencies are involved in combating and accordingly there are two routes of remedial action for a foreign company: administrative and legal. The administrative agencies are:
- State Intellectual Property Office (SIPO): patents
- State Administration for Industry and Commerce (SAIC): trade marks, anti-unfair competition, anti-counterfeiting
- National Copyright Administration (NCA): copyrights
- State Food & Drug Administration (SFDA): pharmaceuticals
- Ministry of Agriculture and State Administration of Forestry: plant varieties
- Ministry of Commerce (MofCom): general guidance
- Ministry of Information Industry (MII): layout designs of integrated circuits
- General Administration of Customs: cross border protection
- Administration for Quality Supervision Inspection & Quarantine (AQSIQ): product quality and anti-counterfeiting
- Public Security Bureau (PSB): criminal enforcement
Choosing a Lawyer
It is essential to employ a competent capable lawyer. Strategic China is partnered by a a Chinese law firm with IP expertise and a proven track record in taking successful remedial action for foreign companies.