Keywords: intellectual property protection, trademark, patent, copyright, laws and regulations, application, examination, registration

II. China Has a High-Grade Legal System for Intellectual Property Protection

Along with its progress in reform and opening up, China has made big strides in intellectual property protection. In accordance with its national conditions and current tendencies in international development, China has formulated and finetuned various laws and regulations on intellectual property protection, thereby constructing a socialist legal system for intellectual property protection with Chinese characteristics. The scope of the intellectual property rights protected in China and the degree of protection afforded have gradually conformed with international practices and the high degree of legal protection for intellectual property rights has been realized.

Effective as of March 1983, the Trademark Law of the People's Republic of China and the rules for its implementation set forth the principles of application, examination and registration in trademark registration procedures which are entirely identical with common international principles. In order to meet the requirements of the reform and opening up and of economic development, to more effectively crack down on trademark counterfeiting and stop acts of infringement, and to conscientiously protect the right to exclusive use of a registered trademark, in 1993 China revised both its Trademark Law and the rules for its implementation to expand the range of trademarks protected. Regulations on commodity trademarks were joined by regulations on the registration and management of service trademarks; in examination as to form, a revision procedure was added, and in examination as to substance, a written comment system was established to provide convenience for registered trademark applicants. All these regulations coincide completely with the requirements of GATT's Agreement on Trade-related Aspects of Intellectual Property Rights. In addition, the State Administration for Industry and Commerce has issued a series of regulations including the Regulations on the Administration of the Printing of Trademarks and the Procedures for Filing License Contracts for the Use of Trademarks. In February 1993, the National People's Congress Standing Committee adopted the Supplementary Regulations on Punishing Criminal Counterfeiting of Registered Trademarks to further intensify punishment for such counterfeiting and other infringements. These laws and regulations fully and effectively guarantee the right to the exclusive use of Chinese and foreign registered trademarks.

The Patent Law of the People's Republic of China and the rules for its implementation came into effect in April 1985, expanding the scope of intellectual property protection in China to include inventions and other new creations. In order to bring the level of China's patent protection closer to international standards, the Standing Committee of the National People's Congress adopted an amendment to the Patent Law on September 4, 1992, which included important revisions. Proceeding from the needs of expanding the opening up and accelerating scientific, technological and economic development, first, the revised Patent Law expands the scope of patent protection: patents may be granted to all types of technological inventions, whether new products or new techniques, including pharmaceutical products and substances obtained by means of a chemical process, foods, beverages and flavourings. Second, an invention patent's duration has been extended from 15 years from the date of application to 20 years; the duration of utility model patents and of exterior design patents has been extended from 5 years from the date of application to 10 years. Third, the protection of patent rights has been further strengthened. In addition to extending the protection of a patented process to include products directly produced by that process, the law clearly stipulates that the importation of patented products requires the permission of the patent holder, thereby giving more effective protection to the rights and interests of patentees. Fourth, conditions for imposing compulsory patent license were re-stipulated. These measures mark the reaching of a new level of patent protection in China. In this way, the Patent Law of China has essentially been brought in line with the GATT Agreement on Trade-related Aspects of Intellectual Property Rights.

The Copyright Law of the People's Republic of China and the rules for its implementation explicitly protect the copyright and other legitimate rights and interests of the authors of literary, artistic and scientific works. The law provides that in addition to protecting the copyright of written works, oral works, music, operas, quyi (folk art forms including ballad singing, story telling, comic dialogues, clapper talks, cross talks, etc), choreography, works of fine arts, photographs, films, TV programmes, video tapes, engineering designs, product designs and their descriptions, maps, sketch maps and other graphic works, China also protects computer software. China is among a select group of countries that have explicitly listed computer software as the object of protection by copyright laws. The State Council has, moreover, promulgated the Regulations on the Protection of Computer Software, providing the specifics whereby the laws protecting computer software will be implemented. These regulations, a necessary adjunct to the Copyright Law, came into effect in October 1991. On September 25, 1992 the State Council promulgated the Regulations on the Implementation of the International Copyright Treaty, providing specific regulations on protecting foreign authors' copyrights in accordance with the international treaty.

These laws and regulations have been joined by the Technological Contract Law of the People's Republic of China and the Law on Scientific and Technological Progress of the People's Republic of China as formulated by the Standing Committee of the National People's Congress, as well as a series of administrative regulations concerning intellectual property protection worked out by the State Council, together further optimizing the nation's legal system for the protection of intellectual property rights, in the whole bringing the system close to and in coordination with international levels of protection.

China has a complete legal system for the protection of intellectual property rights. China's intellectual property law stipulates the legal responsibilities to be borne by anyone who violates the law, including civil liability, criminal liability and exposure to administrative sanctions.

China's Patent Law provides that in the case of infringement arising from the exploitation of a patent without authorization of the patentee, the patentee or other affected parties may request the patent administrative authorities to deal with the matter or may directly file suit in a people's court. In investigating and dealing with the matter, the patent administrative authorities are empowered to order the infringer to stop all acts of infringement and compensate for any losses. Whoever counterfeits a patented product or wrongly appropriates a patented technique will be ordered by the patent administrative authorities to cease all acts of counterfeiting, to provide the public with notification of his or her violation, and to pay a fine. In the case of serious violations, the criminal liability of the person directly responsible shall be investigated through application of relevant articles of the Criminal Law, and if found guilty, the person directly responsible shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or a fine.

China's trademark laws and regulations stipulate that in the event of infringement on the right to exclusive use of a registered trademark, the administrative department for industry and commerce can, in line with its functions and powers or on the basis of a consumer complaint, examine and deal with the violation on its own initiative. The party whose right has been infringed may also, at the place where the infringer lives or where the act of infringement took place, request an administrative department for industry and commerce at or above the county level to handle the matter. The relevant administrative department for industry and commerce has the right to order the infringer to immediately cease infringement and to compensate the party whose right has been infringed for its losses. If the act of infringement on the right to exclusive use of a registered trademark does not constitute a crime, the administrative department for industry and commerce may still impose a fine on the infringer. If the party concerned wishes to challenge the decision of the administrative department for industry and commerce, it may bring suit in a people's court within a fixed time and the court will render judgement on the case. These regulations provide convenience to the litigants, and, moreover, ensure consistency, impartiality and seriousness in administrative law enforcement and judicial adjudication. In the event of an infringement on the right to exclusive use of a registered trademark, the party whose right has been infringed may also directly bring suit in a people's court. If the counterfeiting of registered trademarks constitutes a crime, the person who committed the act shall be ordered to compensate the party whose right has been infringed for losses suffered and his criminal responsibility shall be investigated and dealt with in accordance with the law. In accordance with the Supplementary Regulations on Punishing Criminal Counterfeiting of Registered Trademarks, in cases where the illegal gains are relatively large or other serious circumstances are involved the counterfeiter of a registered trademark will be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and/or fined; if the illegal gains are very large the counterfeiter shall be sentenced to fixed-term imprisonment of not less than three years and not more than seven years and be fined. If an enterprise or institution is guilty of criminally counterfeiting a registered trademark, the unit will be fined and the criminal liability of the person in charge and other people directly responsible for the counterfeiting shall be investigated and dealt with in accordance with the law. If a government employee knowingly covers up the criminal counterfeiting of a registered trademark or if a person charged with enforcing the law compromises the law for personal gain, his or her criminal malfeasance will be determined by law.

The Copyright Law of China provides that the following acts shall be regarded as infringement: publication of a copyright owner's work without his or her permission, and the unauthorized publication of a cooperative work as the work of a single author; claiming authorship of another person's work without taking part in its creation with the intention of gaining fame or profit; distortion or alteration of another person's works; exploitation of an author's work in any manner without prior permission; the use of another's work without providing the legally stipulated payment; and live broadcast of a performance without the performer's prior permission. In such cases, the infringer shall bear civil responsibility for the cessation of the infringement, for the elimination of any negative effects caused by his actions, for offering a public apology, and for compensation for any losses. Those who plagiarize other people's works, or reproduce and distribute another person's works for their personal benefit without the copyright holder's permission, those who publish a book without the permission of the owner of the publishing right, and those who duplicate and distribute video and audio tapes without getting the permission of the tape manufacturers bear civil responsibility for their actions. The copyright administrative authorities may confiscate their illegal income or impose a fine on them. In the case of a copyright infringement or of violation of other related interests, the party whose rights have been infringed may also directly bring suit in a people's court. With regard to illegal activities that gravely jeopardize the social order or seriously infringe on the legitimate rights and interests of a copyright holder or the holder of other intellectual property rights, in cases where such violations constitute a crime the criminal liability of the infringer shall be investigated and dealt with in accordance with the relevant laws.

With the implementation of intellectual property laws, intellectual property rights are effectively protected in China. These laws are also actively encouraging invention and other forms of creation and fair competition. For instance, the protection of the right to the exclusive use of registered trademarks has resulted in the rapid growth of the number of trademarks registered by Chinese and foreign businessmen in China. By the end of 1993, the number of effective registered trademarks had exceeded 410,000. Of these, 350,000 were domestic, with the remaining 60,000 coming from 67 countries and regions. Companies from the United States, for example, had only 122 trademarks registered in China before 1979; by 1993 that number had soared to 16,221, more than a hundred times the earlier figure. In 1993, there were 170,000 applications for trademark registration annually in China, including more than 130,000 applications for new trademarks registration, among the highest number in the world. In addition, the Patent Law of China has greatly encouraged inventions and other creations in China, and has proved a magnet to patent applications from other countries and regions. On April 1, 1985, the first day the Patent Law came into effect, 3,455 applications for patent rights were submitted. By the end of 1993, the Patent Office of China had handled over 360,000 applications for patent rights. Of those, 27.5 percent were for inventions, 62.8 percent for utility models, and 9.7 percent for exterior designs; domestic applications accounted for 86.4 percent, while 13.6 percent were applications from 70 countries and regions. By the end of 1993, 175,000 patents had been approved, including more than 20,000 invention patents, more than 130,000 utility model patents and over 20,000 exterior design patents.

Source: http://www.china-un.ch/eng/bjzl/t176937.htm