the Trademark Law allow local branches
or subsidiaries of foreign companies to
register trademarks directly without use of
a Chinese agent.
Copyright
China’s copyright law was established in
1990 and amended in October 2001. The
new implementing rules came into force
on September 15, 2002. Unlike the patent
and trademark protection, copyrighted
works do not require registration for protection. Protection is granted to individuals from countries belonging to the
copyright international conventions or bilateral agreements of which China is a
member. However, copyright owners may
wish to voluntarily register with China’s
National Copyright Administration
(NCA) to establish evidence of ownership,
should enforcement actions become necessary.
Unfair competition
China’s Unfair Competition Law provides
some protection for unregistered trademarks, packaging, trade dress and trade
secrets. The Fair Trade Bureau, under the
State Administration for Industry and
Commerce (SAIC) has responsibilities
over the interpretation and implementation of the Unfair Competition Law. Protection of company names is also
provided by SAIC. According to the TRIPs
Agreement, China is required to protect
undisclosed information submitted to
Chinese agencies in obtaining regulatory
approval for pharmaceutical and chemical entities from disclosure or unfair commercial use. China’s State Drug
Administration and Ministry of Agriculture oversee the marketing approval of
pharmaceuticals and agricultural chemicals, respectively.
What is China’s IPR
enforcement system?
In 1998, China established the State Intellectual Property Office (SIPO), with the
vision that it would coordinate China’s IP
enforcement efforts by merging the
patent, trademark and copyright offices
under one authority. However, to date this
merger has yet to occur. Today, SIPO is responsible for granting patents (national
China
office), registering semiconductor layout
designs (national office), and enforcing
patents (local SIPO offices), as well as coordinating domestic foreign-related IPR
issues involving copyrights, trademarks
and patents.
Protection of IP in China follows a
two-track system:
• Administrative track, whereby an IP
rights holder files a compliant at the
local administrative office.
• Judicial track, whereby complaints
are filed through the court system.
China has established specialized IP
panels in its civil court system
throughout the country.
Determining which IP agency has jurisdiction over an act of infringement can
be confusing. Jurisdiction of IP protection
is diffused throughout a number of government agencies and offices, with each
typically responsible for the protection afforded by one statute or one specific area
of IP-related law. There may be geographical limits or conflicts posed by one administrative agency taking a case,
involving piracy or counterfeiting that
also occurs in another region. In recognition of these difficulties, some regional IP
officials have discussed plans for creating
cross-jurisdictional enforcement procedures. China’s courts also have rules regarding jurisdiction over infringing or
counterfeit activities, and the scope of potential orders.
Is it possible for the U.S
Government to assist you in
your IPR infringement cases?
Because intellectual property rights are
private rights, the government can provide
only limited direct assistance. In many
cases, the U.S. Government can provide
companies with information in navigating
China’s legal system, including lists of
local investigative firms and attorneys and
share its experience and expertise in
China. However, the Department of Commerce cannot provide American companies with legal advice or advocate on a
company’s behalf without the company
first taking legal action.
When a company encounters blatant
infringement of its IPR, the right holder
should hire local counsel and pursue a