China copyright protection Service
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China's Current IPR Environment
Auto parts, watches, sporting goods, shampoo, footwear, designer apparel, medicine and medical devices, leather goods, toys, batteries, and other non-consumer products - the seemingly endless array of counterfeit products that are manufactured and distributed within China, or exported to other countries, continues to grow. China was the number one source of counterfeit products that were seized at the United States border last year.
Since joining the World Trade Organization, China has strengthened its legal framework and amended its IPR laws and regulations to comply with the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Despite stronger statutory protection, China continues to be a haven for counterfeiters and pirates. According to one copyright industry association, the piracy rate remains one of the highest in the world (over 90 percent) and U.S. companies lose over one billion dollars in legitimate business each year to piracy. On average, 20 percent of all consumer products in the Chinese market are counterfeit. If a product sells, it is likely to be illegally duplicated. U.S. companies are not alone, as pirates and counterfeiters target both foreign and domestic companies.
Though we have observed commitment on the part of many central government officials to tackle the problem, enforcement measures taken to date have not been sufficient to deter massive IPR infringements effectively. There are several factors that undermine enforcement measures, including China’s reliance on administrative instead of criminal measures to combat IPR infringements, corruption and local protectionism, limited resources and training available to enforcement officials, and lack of public education regarding the economic and social impact of counterfeiting and piracy.
The Best Protection is Prevention
Though China is a party to international agreements to protect intellectual property (including the WIPO, Berne and Paris Conventions, among others), a company must register its patents and trademarks with the appropriate Chinese agencies and authorities for those rights to be enforceable in China. Copyrights do not need to be registered but registration may be helpful in enforcement actions. A brief summary of China's patent, trademark, and copyright laws follows below.
Patent: China’s first Patent Law was enacted in 1984 and has been amended twice (1992 and 2000) to extend the scope of protection. To comply with TRIPS, the latest amendment extended the duration of patent protection to 20 years from the date of filing a patent application. Chemical and pharmaceutical products, as well as food, beverages, and flavorings, are all now patentable. China follows a first-to-file system for patents, which means patents are granted to those that file first even if the filers are not the original inventors. This system is unlike the United States, which recognizes the “first to invent” rule, but is consistent with the practice in other parts of the world, including the European Union. As a signatory to the Patent Cooperation Treaty in 1994, China will perform international patent searches and preliminary examinations of patent applications. Under China’s Patent Law, a foreign patent application filed by a person or firm without a business office in China must be made through an authorized patent agent, while initial preparation may be done by anyone. Patents are filed with China’s State Intellectual Property Office (SIPO) in Beijing, while SIPO offices at the provincial and municipal level are responsible for administrative enforcement.
Trademark: China’s Trademark Law was first adopted in 1982 and subsequently revised in 1993 and 2001. The current Trademark Law went into effect in October 2001, with implementing regulations taking effect on September 15, 2002. The new Trademark Law extended registration to collective marks, certification marks and three-dimensional symbols, as required by TRIPS. China joined the Madrid Protocol in 1989, which requires reciprocal trademark registration for member countries, which now include the United States. China has a ‘first-to-file’ system that requires no evidence of prior use or ownership, leaving registration of popular foreign marks open to third parties. However, the China Trademark Office has cancelled Chinese trademarks that were unfairly registered by local Chinese agents or customers of foreign companies. Foreign companies seeking to distribute their products in China are advised to register their marks and/or logos with the China Trademark Office. Further, foreign companies should register appropriate Internet domain names and Chinese language versions of their trademarks. As with patent registration, foreign parties must use the services of approved Chinese agents when submitting the trademark application. However, foreign attorneys or the Chinese agents may prepare the application. Recent amendments to the Implementing Regulations of 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 patent and trademark protection, copyrighted works do not require registration for protection. China grants protection to persons from countries belonging to copyright international conventions or bilateral agreements of which China is a member. However, copyright owners may wish to register voluntarily with China’s National Copyright Administration (NCA) to establish evidence of ownership, should enforcement actions become necessary.
Unfair Competition: China’s Anti-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) is responsible for the interpretation and implementation of the Anti-unfair Competition Law. SAIC also provides protection of company names. 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.
Contact Us
For further queries, please do not hesitate to contact ATAHK at anytime, anywhere by simply calling China hotline at 86-755-82148419, 86-755-82143512, or emailing to info@citilinkia.com