Effective protection of intellectual property


China business weekly published the new China IPR legistlation.

Effective protection of intellectual property is essential to China hopes to attract high level of foreign investment in China. However, if the Chinese government cannot guarantee that the investors will receive the full protection in intellectual property, it will not only jeopardize its good relations with foreign countries, but also its further economic development. Thus, Improving IPR enforcement is clearly correlated to China’s modernization and reform programs in the future.

Here is a short summary of the IPR development in China since 1965:

April 1963
Trademark Control Act. Supplants PRC’s Provisional Trade Mark Registration of 1950. The act was repealed in 1982.

July 1979
US-China Agreement on Trade Relations. This agreement marked the beginning of current PRC intellectual property protection regime. Both sides stipulate that each will offer the other reciprocal protection of patents and copyrights.

June 1980
China accedes to the World Intellectual Property Organization(WIPO)

August 1982
Trademark Law of The People’s Republic of China.(Detailed Implementing Regulations in 1983, 1988) Replaces the 1963 Act. Based on first-to-file system; registration is valid for 10 years after approval, with a 10-yea renewal option. 1988 revisions introduce protection for service marks.

March 1984
Patent Law of The People’s Republic of China. (Implementing Regulations issued in 1985) Mandates registration of consumer products and licensing contracts; infringement penalties can be twice the profit earned though violations based on first-to-file system.

March 1985
China accedes to the Paris Convention for the Protection of Industrial Property

May 1989
US-China Memorandum of Understanding (MOU) on Enactment and Scope of PRC Copyright Law. Stipulates that copyright legislation will include computer programs as a specific category; expands patent protection without specifying industries or time limits.

October 1989
China accedes to the Madrid Agreement for International Registration of Trademarks.

June 1991
Extends protection to computer software, and to literary, artistic, and scientific woks.

June 1991
Computer Software Protection Regulations.

(Software Registration Procedures issued in 1992) Protects published software registered after the enactment date, leaving all existing software in China in the public domain.

January 1992
U.S.-China Memorandum of Understanding (MOU) on Intellectual Property Rights.

China pledges to extend copyright protection to foreign owners of software, books, firms, sound recordings, and other mediums previously unprotected.

September 1992
Regulations for the Implementation of International Copyright Treaty Provisions. Provides further amendments to the Copyright Law. Extends protection to “applied art” (jewelry, watches, toys, furniture, etc.), which are subject to registration requirements.

October 1992
China accedes to the Berne Convention for the Protection of Literary and Artistic Works

October 1992
China accedes to the Universal Copyright Convention

February 1993
Supplementary Provisions Concerning The Punishment Of Crimes Of Counterfeiting Registered Trademarks

June 1993
China accedes to the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms (Geneva Convention)

December 1993
Unfair Competition Law Protects unregistered trademarks, packaging, and trade dress; prohibits unfair competition by monopolies/cartels in controlling prices.

January 1994
China accedes to the Patent Cooperation Treaty.

July 1994
Copyright Implementing Regulations Makes copyright infringement a criminal offense; violators can be sentenced to prison for up to seven years or executed in severe cases.

Februay 1995
U.S.-China IPR Enforcement In this agreement, China promised to markedly reduce piracy, to improve enforcement at the border, and to open its markets for U.S. computer software, sound recordings and movies.

Tianducheng Eiffel tower

Tianducheng Eiffel tower

I. IPR legislation advances and construction of policy and framework refines

In 2008, IPR legislation advanced with new developments. Legal and policy frameworks made new achievements.

On Dec 27, the Sixth Session of the 11th National People’s Congress Standing Committee approved the Decision Regarding the Am`endment of the Patent Law of the People’s Republic of China. The amended Patent Law of the People’s Republic of China (hereinafter referred to as the Patent Law) will be in force from Oct 1, 2009. The smooth completion of the third amendment of the Patent Law was another milestone in the development of the Chinese patent system.

In an effort to ensure the simultaneous implementation of the Implementing Regulations of the Patent Law and the Patent Law, SIPO finished the draft amendment of the Implementing Regulations of the Patent Law in early March. In early September, after holding conferences to invite comments from its various departments, SIPO forwarded the Draft Amendment of the Implementing Regulations of the Patent Law of the People’s Republic of China (Comment Soliciting Version), inviting comments and suggestions from the general public.

With a view to supporting the amendment of the Patent Law and its Implementing Regulations, improving the work of patent examination and approval, SIPO started the amendment of Examination Guidelines, Measures on Depositing Patent Licensing Agreement, and Measures on Registration of Patent Pledging Agreement.

The State Administration for Industry and Commerce (SAIC) contacted more frequently with the Legislative Affairs Office of the State Council in 2008 to accelerate the amendment of the Trademark Law of the People’s Republic of China (hereinafter referred to as the Trademark Law). Through holding special topic conferences, SAIC studied conscientiously the guiding concepts and contents of the third amendment and made clear the principles and directions. This facilitated the legislative process of the Trademark Representation Regulations, accelerated the Amendment of the Anti-Unfair Competition Law which further strengthened trade secret protection.

With emphasis on raising the quality of identification and fending off the risks of supervision and corruption, Rules on Well-known Trademark Determination were drafted. SAIC also drafted and implemented the Standards for Trademark Examination and Adjudication, Instructions of Trademark Substantive Examination, Provisional Measures on Trademark Examination Quality, Evaluation Standards of Trademark Examination Quality. Scope of Trademark Cases for Earlier Adjudication and Working Mechanism for Trademark Case Adjudication were also refined.

The National Copyright Administration of China (NCAC) completed its research and study of the second amendment of the Copyright Law of the People’s Republic of China (hereinafter referred to as the Copyright Law) in 2008, shaping an 800,000-word report in this regard. It organized experts and scholars to take a close look at the priority issues concerning the Rules on the Copyright Protection of Folklore Works (Comment-Soliciting Draft) and relevant legislation. The comments from them led to amendment of the draft and accelerated the drafting process.

In addition, after amendment, relevant copyright laws of the Hong Kong Special Administrative Region are compliant with the World Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). Per the request of the SAR government, NCAC on Sept 23 submitted to WIPO the declaration on the application of the two treaties in Hong Kong SAR. From Oct 1, 2008, the two Internet treaties became applicable in Hong Kong.

In May 2008, the Ministry of Culture issued the Provisional Measures on Certifying and Administering Representative Inheritors of State Intangible Cultural Heritage, providing specific rules on the standard of certifying representative inheritors and support measures.

In 2008, in a bid to solve practical problems when handling cases and to make more uniform decisions, Ministry of Public Security (MPS) set up a task force to formulate the Police Standard for Registering Cases of Economic Crimes, with a view to setting up concrete standards of amount of money and quantity of goods relating to the 84 economic crimes (including the IPR crimes) under the administration of the Economic Crimes Investigation Department of MPS for Investigation and prosecution cause of action of crimes was also specified. A draft was made to invite comments from relevant agencies and experts.

The Ministry of Agriculture (MOA) released the Seventh Group of Agricultural New Varieties of Plants, Measures on Regulating Symbols of Agricultural Products, Registration Procedure of Agricultural Geographical Indications and Regulations on Use of Agricultural Geographical Indications. Ministry of Agriculture also amended the Examination Guidelines of Agricultural Plant Variety Applications, Manual on Test of Agricultural Plant Varieties and Manual on Deposit of Agricultural Plant Varieties. Rules on Naming Agricultural Plant Varieties (for Review Version) were drafted and the research and study for amendment of the Regulations on Protection of New Varieties of Plants had been conducted.

In 2008, the Supreme People’s Court (SPC) began drafting the Judicial Interpretation on Application of Laws in the Trial of Trade Secret Criminal Cases. The Judicial Interpretation on the Application of Laws for Protection of Well-Known Marks in the Trial of Trademark Infringement Civil Cases drafted by the IPR Tribunal is currently under revision. SPC’s draft Provisions on Issues Concerned in the Trial of IPR Administrative Cases was finished. In particular, on Feb 18, 2008, SPC announced the Provisions on Issues Concerned in the Trial of Cases of Civil Disputes over the Conflict between Registered Trademark or Enterprise Name with Prior Right, offering definitive principles and standard for handling such disputes and regulating market competition and promoting fair competition more effectively.

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