CIIE PROPERTY RIGHTS PROTECTION BROCHURE—China International Import Expo

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CIIE PROPERTY RIGHTS PROTECTION BROCHURE

China International Import Expo

Intellectual Property Rights Protection Brochure

Preface

Protecting intellectual property rights (IPR) means to protect the kindling of innovation and it is also an important aspect of shaping a good business environment. China has always attached great importance to IPR protection. At the opening ceremony of the Boao Forum for Asia Annual Conference 2018, General Secretary Xi Jinping announced IPR protection as one of the four major measures for expanding openness, which once again conveys to the world the firm position and clear attitude of the Chinese government to strictly protect IPR according to law, winning wide acclaim from the international community. In recent years, China has placed IPR protection at a more important position and the level of IPR protection has been greatly improved. The awareness of IPR in the whole society has generally increased, and the business environment featuring rule of law, internationalization, and convenience has been further improved.

The first China International Import Expo (CIIE) is the world's first national-level exhibition focusing on import. There will be many exhibitors and buyers from all over the world, and many world-class products and technologies will be exhibited. It will be a centralized display of global innovations. CIIE fully recognizes that protecting intellectual property rights according to the law is of great significance for maintaining innovative achievements, creating first-class services and ensuring the smooth and successful holding of the Expo. In view of this, the Expo will actively strengthen the protection of IPR, adopt various measures to provide IPR services before, during and after the exhibition and strive to create a good exhibition trading environment for exhibitors and buyers.

In order to facilitate exhibitors and buyers to better understand and obtain IPR protection, we have prepared the China International Import Expo Intellectual Property Rights Protection Brochure. To provide guidelines for exhibitors and buyers, this brochure combines the characteristics of the Expo with the actual demands of exhibitors, introduces and explains China's position and achievements in protecting intellectual property rights, and relevant systems for applying for and obtaining intellectual property protection in China.

I. China Attaches Importance to IPR Protection

In recent years, China has formulated and implemented a national IPR strategy, accelerated the construction of an IPR power, continuously improved the IPR legal system and continued to strengthen the IPR law enforcement. The level of creation, application, protection and management of IPR has increased substantially. In the practice of protecting IPR, China protects the legitimate IPR of enterprises in accordance with the law, treats both domestic and foreign enterprises as equal, fully fulfills its international obligations and China's commitments and actively creates a sound business environment.

The legal system for IPR protection is increasingly complete. China has been establishing and improving laws and regulations on IPR, actively absorbing the experience of international advanced legislation and building an IPR legal system that conforms to WTO rules and China's national conditions. In recent years, the Trademark Law, Anti-Unfair Competition Law of People’s Republic of China and Olympic Symbol Protection Regulations have been amended, the revision of laws and regulations of the Patent Law of People’s Republic of China, the Copyright Law of People’s Republic of China and the Regulations on the Protection of New Varieties of Plants have been expedited, and the construction of laws and regulations on IPR has been steadily advanced.

The law enforcement of IPR protection is efficient and powerful. China has strengthened law enforcement in accordance with the law, raised the illegal costs significantly and given full play to the role of legal deterrence. It re-established the State Intellectual Property Rights Office and improved the law enforcement force. Three IPR courts have been established in Beijing, Shanghai and Guangzhou, specialized trial institutions have been set up in 16 intermediate courts to deal with cross-regional jurisdictions and other IPR cases. China has intensified administrative law enforcement and carried out various specialized actions to crack down on network infringement, pornography and illegal publications, and counterfeit, which effectively protected intellectual property rights.

The effect of IPR protection is obvious. Since 2001, Chin’s external payment of IPR fees has increased at an average annual growth rate of 17%, reaching US$28.6 billion in 2017. In 2017, the invention patent applications in China reached 1.382 million, ranking first in the world for 7 consecutive years. Nearly 10% of applicants were foreign units and individuals; foreign invention patent applications in China reached 136,000, 3 times more than the 33,000 applications in 2001. The World Intellectual Property Rights Organization recently announced that China accepted 51,000 patent applications through the Patent Cooperation Treaty in 2017, second only to the United States, ranking second globally.

II. Intellectual Property Rights Protection of the China International Import Expo

In order to effectively protect the legitimate rights and interests of exhibitors, buyers and IPR holders and protect the innovation fruits, the Expo actively strengthens the protection of IPR, optimizes IPR services and establishes work contact mechanisms with relevant IPR departments to create a sound IPR protection environment together. It mainly includes the following aspects:

First, set up a service center for IPR protection and commercial disputes resolution. We have formulated and promulgated the Measures for Suspected Infringement of Intellectual Property Rights at The China International Import Expo and standardized the working procedures of the service center. Relevant IPR experts will be invited to provide IPR legal consultation and disputes mediation services for exhibitors and buyers at the exhibition site.

Second, facilitate the applications and accesses of IPR protection for exhibitors. We have produced and distributed IPR questionnaires to actively meet the actual demands of exhibitors; set up an IPR column on the official website of the Expo to provide relevant laws and regulations on IPR and information guidelines, formulated and published IPR publicity materials and provided consulting services through the Expo Call Center.

Third, strengthen the protection of IPR with relevant departments. We have established an IPR protection liaison mechanism for the Expo, coordinated with IPR departments to step up IPR enforcement and investigate and punish IPR infringement against exhibitors and buyers.

For related information, please refer to the IPR column of the Expo official website (https://www.ciie.org/zbh/zscqflfg/) or contact the service hotline (+86-21-968888).

Ⅲ. Apply for and Protect Intellectual Property Rights in China

(I). Copyright

According to the Copyright Law of the People's Republic of China, copyright includes personal rights and property rights and is automatically effective from the date of completion of the work. The copyright owner may register the copyright of the work, but registration is not a prerequisite for obtaining copyright.

1. Copyright Registration

The China Copyright Protection Center (CPCC), as the registration authority, undertakes the registration of works from foreign author，authors from n Taiwan region, Hong Kong Special Administrative Region (HKSAR)and Macao Special Administrative Region (MSAR) and other copyright holders.

As to the registration method, the applicant may go to the CPCC copyright registration hall or submit the registration application materials to the CPCC registration department by mail. For the address and contact information of the copyright registration hall, please refer to the “Contact Us” column of the CPCC official website (http://www.ccopyright.com).

As to the processing time, the registration agency will complete the processing within 30 working days after accepting the registration application. If it is necessary to correct the materials, the applicant shall complete the correction within 60 days after receiving the notice of correction. The registration agency shall complete the processing within 30 working days after receiving the correction materials that meet the requirements.

The registration materials include Application for Copyright Registration of Works, copy of applicant's identification document, proof of ownership attribution, sample of works (can submit paper or electronic media samples), work instructions (please introduce the purpose, process and originality with the signature of the applicant and the date of the signature); when an agent is entrusted to apply for it, the agent shall submit the authorization letter (proxy letter) and a copy of the identity document of the agent. Foreign language materials are required to be translated into Chinese (except for work samples).

For further details on copyright registration, please refer to the official website of the China Copyright Protection Center (http://www.ccopyright.com).

2. Copyright Protection

(1)Administrative Protection

In case that the infringement provided by Article 48 of the Copyright Law of the People’s Republic of China damages the public interest, the administrative organs shall investigate the administrative responsibility of the infringer according to the complaint of the right holder or the report of the insider, or the independent investigation result.

After the right holder discovers the infringement, he may complain to the local copyright administrative departments of the place where the infringement is committed or where the infringement results is discovered (including the infringing copy storage site, the place where infringing copy is seized, the location of the infringing website server, the infringing website host's domicile or the main business location). In some cases, the copyright administrative department may transfer the complaint to another copyright administrative department for handling according to the law.

(2) Judicial Protection

When a right holder initiates a civil lawsuit, the judicial organ will investigate the civil liability of the infringer according to the law; if the infringement is suspected of constituting a crime, the judicial organ will investigate the criminal liability of the infringer according to the law given the criminal proceedings initiated by a public prosecutor or right holder. When filing a civil or criminal proceeding, it should apply to the litigation procedure stipulated in the Civil Procedure Law of the People’s Republic of China or the Criminal Procedure Law of the People’s Republic of China accordingly.

(II) Patent Right

According to the Patent Law of the People’s Republic of China, there are three types of patents: invention patent, patent for utility models and design patent. Wherein, the invention refers to a new technical solution proposed for products and methods or for improvement; the utility models refer to a new technical solution suitable for practical use for the shape, structure or combination of the product; the design refers to the new aesthetic design for industrial applications for the shape, pattern or combination of products and the combination of the color, shape and pattern of the product.

1. Patent Application

With regard to patent institutions, the Patent Office of the State Intellectual Property Rights Office is responsible for managing patent throughout the country; uniformly accepting and examining patent applications and granting patent rights according to the law.

With regard to applicants, foreigners, foreign enterprises or other foreign organizations that do not have permanent residence or business offices in China should apply for patents in China in accordance with the agreements signed by their countries with China or the international treaties they participate in or in accordance with the patent law on the principle of reciprocity; if a foreigner, foreign enterprise or other foreign organizations do not have a permanent residence or business office in China want to apply for a patent or handle other patent affairs in China, it shall entrust a patent agency established according to the law. The patent agency established by law may be inquired and verified through the website of the State Intellectual Property Rights Office. (http://www.sipo.gov.cn/zldlgl/index.htm).

Regarding the application method, the applicant shall submit the patent application in electronic form or in written form. If a patent is applied in the form of an electronic file, the electronic application user registration formalities shall be handled in advance, and the application documents and other documents shall be submitted to the Patent Office through the patent electronic application system of the Patent Office (http://cponline.sipo.gov.cn/). If the patent is applied in written form, the application documents and other documents shall be submitted to the acceptance office of the Patent Office or sent to the Office of the Patent Office of the State Intellectual Property Rights Office (Address: No. 6, West Tucheng Road, Ji Men Bridge, Haidian District, Beijing). It can also be handed to the reception counter of the local patent office, or sent to the “XXX agency of the Patent Office of the State Intellectual Property Rights Office”. For the information of the agency of the Patent Office, please log in (http://www.sipo.gov.cn/zldbc/) for inquiry.

Regarding the novelty grace period, the patented invention exhibited for the first time at an international exhibition hosted or recognized by the Chinese government within six months before the application date do not lose novelty.

With regard to the term of the patent, the term of the invention patent is 20 years, and the term of the patent for utility models and design patent is 10 years, all calculated from the date of application.

2. Patent Protection

(1) Administrative Protection

The implementation of the patent without the permission of the patentee constitutes an infringement of the patent rights. Therefore, if a dispute arises, it shall be settled by the parties through negotiation; if it is unwilling to negotiate or the negotiation fails, the patentee or the interested party may request the department that manages the patent work to deal with it. When the patent administrative department handles the case, if the infringement is found to be established, the infringer may be ordered to immediately stop the infringement; if the infringer does not stop the infringing act, the patent administrative department may apply to the people's court for compulsory execution. At the request of the parties, when the department manages the patent work, it may mediate the amount of compensation for the infringement of the patent right.

(2) Judicial Protection

As to a dispute arising as a result of infringement of a patent right, if the parties are unwilling to negotiate or fail to negotiate, the patentee or the interested party may resort to the people's court. If the amount of compensation for infringement of patent rights fails to be settled by the administrative department of patents, the involved parties could file a suit to the people's court in accordance with the Civil Procedure Law of the People’s Republic of China.

(III) Trademark Rights

According to the provisions of the Trademark Law of the People’s Republic of China, trademarks approved by the Trademark Office of the State Intellectual Property Rights Office are registered trademarks, including commodity trademarks, service trademarks, collective trademarks and certification trademarks; trademark registrants enjoy the exclusive right to use the registered trademark which is under legal protection.

1. Trademark Registration

Regarding applicants, foreigners or foreign enterprises who want to apply for trademark registration in China shall handle it according to the agreements signed by its countries with China or the international treaties that they participate in or on the principle of reciprocity; foreigners or foreign enterprises apply for trademarks in China or handle other trademark matters shall entrust a trademark agency established in accordance with the law. The entrusted established trademark agency can be inquired and verified through the China Trademark Network (http://sbj.saic.gov.cn/sbdl/).

Regarding the application, the applicant can apply online (go to the China Trademark Network online application system http://sbj.saic.gov.cn/wssq) or apply in written documents. The first method is to apply to the registration hall of the Trademark Office and the reception hall of the Trademark Office in Zhongguancun Office; the second is to apply to the examination and approval center of Guangzhou, Shanghai, Chongqing and other places; the third is to apply to the local trademark acceptance window. The address of trademark acceptance windows of each place can be found on the China Trademark Network Regarding protection based on application, if the IPR holder discovers that the suspected infringing goods are about to be imported or exported, he may file an application for detaining the suspected infringing goods to the goods import and export customs. If IPR holder applies for detaining the suspected infringing goods in accordance with the provisions of Article 13 of the Regulations on the Customs Protection of Intellectual Property Rights and provides guarantees in accordance with Article 14, the customs shall detain the suspected infringing goods. The right holder shall file a lawsuit to the people's court and apply for the seizure of the relevant goods within 20 working days from the date of the imported and exported suspected infringing goods being detained by the customs. The customs will assist the People's Court if it receives the written notice of assistance of the seizure of goods, otherwise the goods will be released.

Regarding protection based on power, after the customs finds that the imported and exported goods are suspected of infringing the registered IPR and notifying the IPR holder, the IPR holder shall request the customs to detain the suspected infringing goods and submit the guarantee within three working days after receiving the notice, and then the customs shall detain the goods. Within 30 working days from the date of the investigation, the detained suspected infringing goods shall be investigated and verified. After the investigation, the customs may make the decision among the three: “identified infringement”, “identified non-infringement” and “cannot be identified”. If cannot be identified, a written notice will be sent to the right holder immediately. The right holder should apply to the people's court as soon as possible to take measures to stop the infringement or for property preservation. Within 50 working days from the date of detaining the suspected infringing goods, the customs shall, if it receives the notice for executing assistance from the People's Court, assist in the execution; otherwise the goods will be released.

The above relevant laws and regulations on IPR in China can be inquired through the link address provided by the IPR column of the official website of the Expo (https://www.ciie.org/zbh/zscqflfg/). This brochure is for reference of relevant IPR protection information only.

With regard to priority, if a trademark is used for the first time on a product exhibited at an international exhibition hosted or recognized by the Chinese government, the applicant for registration of the trademark may enjoy priority within six months from the date of exhibition. If priority is claimed in accordance with this regulation, a written statement shall be filed at the time of filing the application for trademark registration, and the name of the exhibition, the evidence of the use of the trademark on the exhibited goods and the date of the exhibition shall be submitted within three months.

Regarding the term of the trademark, the registered trademark is valid for ten years from the date of approval of the registration. If the registered trademark expires and needs to be used continuously, the trademark registrant shall go through the renewal procedures within 12 months before the expiration; if it fails to handle it during this period, a six-month extension period may be given. Each renewal registration is valid for ten years from the date after the last validity of the trademark.

2. Trademark Protection

(1) Administrative Protection

For the infringement of the exclusive right to use registered trademark, the trademark owner can negotiate and resolve the dispute with the other party. The trademark registrant or the interested party may also request the market supervision department to handle it. When the market supervision department deals with it, if the infringement is established, the infringement act shall be ordered to stop immediately, the infringing goods and the tools mainly used to manufacture the infringing goods and to falsify the registered trademark marks should be confiscated and destroyed. The market supervision department is entitled to investigate and punish violations of the exclusive right to use registered trademark; anyone suspected of committing a crime shall be promptly transferred to the judicial organ according to the law.

(2) Judicial Protection

If a dispute arises as a result of infringement of the exclusive right to use a registered trademark, the trademark registrant or the interested party may resort to the people's court. In case of any dispute over the amount of compensation for infringement of the exclusive right to use a registered trademark, the involved parties may file a suit to the people's court in accordance with the Civil Procedure Law of the People’s Republic of China.

(3) Violation of the Exclusive Right to Use Registered Trademark

According to Article 57 of the Trademark Law of the People’s Republic of China, "One of the following acts is considered as a violation of the exclusive right to use registered trademark:

(1) using the same trademark as the registered trademark on the same commodity without the permission of the trademark registrant;

(2) using a trademark similar to the registered trademark on the same commodity without the permission of the trademark registrant, or using a trademark identical or similar to the registered trademark on similar commodities that may cause confusion;

(3) selling goods that violate the exclusive right to use registered trademark;

(4) falsifying or arbitrarily manufacturing a registered trademark or selling a registered trademark mark that is forged or manufactured without authorization;

(5) replacing the registered trademark without the consent of the trademark registrant and putting the commodity with replaced trademark into the market;

(6) deliberately providing convenience for infringing the trademark exclusive right of others and helping to commit infringement of trademark exclusive rights;

(7) other damages caused to the exclusive right of use registered trademark of others.

(IV) Customs Protection of Intellectual Property Rights

According to the provisions of Regulations on the Customs Protection of Intellectual Property Right, IPR holders may put on file the legal status of their IPR, the situations of relevant goods, the legal use of IPR and the import and export of infringing goods to the customs for it to take the initiative to protect relevant IPR in the process of supervision of import and export goods.

1. Filing applications

Regarding the filing agency, the General Administration of Customs uniformly accepts the application for the customs protection of IPR.

Regarding the filing method, the applicant can submit an electronic application through the Intellectual Property Rights Customs Protection System (http://www.haiguanbeian.com/).

Regarding the applicant, IPR holders who can apply for customs protection of IPR include trademark registrants, patentees, copyright owners and copyright-related rights holders as stipulated in Trademark Law of the People’s Republic of China, Patent Law of the People’s Republic of China and Copyright Law of the People’s Republic of China. Rights holders from non-Chinese mainland regions must entrust natural persons, legal persons or other organizations in mainland China to apply to the General Administration of Customs.

Regarding the validity period, filings of the customs protection of IPR shall take effect from the date of the verification of the General Administration of Customs and shall be valid for ten years. For validity period of IPR which is less than ten years after the verification of the General Administration of Customs, the validity period of the filing shall be subjected to the validity period of the IPR; for those more than ten years, the validity period of the filing is ten years. If the filing period expires and the IPR are still within the validity period, the right holders may go through the filing formalities according to the regulations within six months before the filing period expires.

2. Customs Protection

Regarding protection based on application, if the IPR holder discovers that the suspected infringing goods are about to be imported or exported, he may file an application for detaining the suspected infringing goods to the goods import and export customs. If IPR holder applies for detaining the suspected infringing goods in accordance with the provisions of Article 13 of the Regulations on the Customs Protection of Intellectual Property Rights and provides guarantees in accordance with Article 14, the customs shall detain the suspected infringing goods. The right holder shall file a lawsuit to the people's court and apply for the seizure of the relevant goods within 20 working days from the date of the imported and exported suspected infringing goods being detained by the customs. The customs will assist the People's Court if it receives the written notice of assistance of the seizure of goods, otherwise the goods will be released.