China sets great store by protecting intellectual property rights (IPR). In 2004, the country set up a working group for IPR protection made up of leaders of 12 departments, including the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Commerce, the Ministry of Public Security, the State Administration for Industry and Commerce, the State Copyright Bureau, the State Intellectual Property Right Office and the General Administration of Customs. In order to meet up the requirements of the new situation after China’s accession to the WTO, the Chinese government has launched a drive to clear up laws and regulation concerning IPR. Up to the present, China has already set up a fairly complete IPR protection system. Besides, it has modified or abrogated rules and regulations or documents that go against WTO requirements.

1．Patents

By the end of 2005, the State Intellectual Property Right Office (SIPRO) granted patent rights in more than 1.46 million cases, including 1.26 million Chinese cases, accounting for 86.3% of the total, and about 200,000 foreign cases, accounting for 13.7% of the total.

In 2005, the SIPRO granted patent rights in about 210,000 cases, 12.5% more than those granted in 2004. These included more than 170,000 cases from China, 13.4% more than those in 2004 and nearly 40,000 cases from other countries, 8.9% more than those in 2004.

From April 1, 1985 to the end of 2004, the SIPRO received more than 2.76 million patent applications, averaging an annual increase of 18.9%. Of the applications, 2.25 million came from China, 81.8% of the total, and about 510,000 from other countries, 18.2% of the total.

In 2005 alone, the SIPRO handled more than 470,000 patent applications, 34.6% more than those in the preceding year. These included nearly 380,000 domestic cases, 37.3% more than those in 2004, and more than 90,000 from other countries, 24.3% more than those in 2004.

From 1994 to 2005, the SIPRO handled 9,567 international applications, with 2,438 applications handled in 2005 alone. International patent applications that entered China via the Patent Cooperation Treaty totaled more than 190,000; and those handled in 2005 exceeded 40,000.

2．Trademarks

The total number of trademark applications reached 838,000 in 2005, an increase of 76,000 or 10% over the 2004 total of 762,000. The number of trademark registration applications totaled 664,000, following the figures of 300,000 in 2002, 400,000 in 2003, and 500,000 in 2004, for a growth of 12.9%. The number of foreign trademark registration applications reached a new high, breaking for the first time the 70,000 mark (70,635 in 2005, 10,300 or 17.1% more than in the 2004 total of 60,334). China has ranked first in the world for four consecutive years in terms of the total number of trademark registration applications, which was 4.22 million.

The Trademark Office of the State Administration for Industry and Commerce (SAIC) examined 476,000 trademark applications in 2005, including 312,000 trademark registration applications and 259,000 registered trademarks approved. China examined over 470,000 trademarks for three consecutive years, including more than 310,000 trademark registration applications each year. As of the end of 2005, the total number of registered trademarks in China reached 2,499,000, of which, the number of foreign registered trademarks in China was 443,000, accounting for 17.7% of all.

3． Copyrights

In 2005, copyright administrative departments at all levels accepted 9,644 copyright violation cases, of which 9,380 were cleared, accounting for 97% of the total. They designated punishments on 7,840 cases, mediated 1,174 cases and brought 366 cases before people’s courts. They also confiscated 10.7 million pirated products, including 19.08 million books, 1.14 million periodicals, 65.87 million CDs, 13.01 million CDs of electronic publications, 7.74 million copies of software and 90,000 other pirated products.

In 2005, Chinese publishing houses imported 9,382 copyrights on books, and exported 1,434 copyrights on books, the largest amount in recent years, with an import/export ratio of 6.5:1.

4．Customs

In 2004, customs uncovered 1,210 cases of import and export goods related to intellectual property right infringements, valued at 99.78 million Yuan, 15.1% and 18.5% more than in 2004. They included 1,159 cases relating to export goods, valued at 98.15 million Yuan, 51 cases relating to import goods, valued at 1.63 million Yuan, 1,106 trademark infringement cases, valued at 87.75 million Yuan, 37 patent right infringement cases, valued at 11.04 million Yuan, and 67 copyright infringement cases, valued at 990,000 Yuan.

Ⅰ. International Intellectual Property Right Treaties and Conventions

While making incessant efforts to build up the domestic legal system concerning intellectual property rights, China has, starting from the 1980, signed a number of major international IPR protection conventions, treaties and agreements. Following its accession to the World Intellectual Property Organization in 1980, China became a signatory party to more than ten international conventions, treaties, agreements and protocols, such as the "Paris Convention for the Protection of Industrial Property," the “Intellectual Property Right Convention on Integrated Circuits”, the "Madrid Agreement Concerning the International Registration of Marks," the "Berne Convention for the Protection of Literary and Artistic Works," the "Universal Copyright Convention," the "Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication", the "Patent Cooperation Treaty," the "Nice Agreement Concerning the International Classification of Goods and Services for the Purpose of the Registration of Marks," the "Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure," the "Locarno Agreement Establishing an International Classification for Industrial Designs," the “Strasbourg Agreement Concerning the International Patent Classification,” the "International Convention for the Protection of New Varieties of Plants," and the "Agreement on Trade-related Aspects of Intellectual Property Rights." China has taken an active part in the activities related to these conventions, treaties and agreements. Its strict observation of these conventions and treaties, its sincere stand and its abilities of performing its international obligations have won widespread approval.

Besides, China has been active in studying and joining other international treaties on IPR protection. It has now set out formulating and revising laws to get ready to sign the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty.

 

 

 

International Conventions on IPR to Which China is a Signatory Party

Ⅱ. National treatment and Most Favored Nation Treatment

China's IPR laws provide that any foreigner would be treated in accordance with any agreement concluded between the foreign country and China, or in accordance with any international treaty to which both countries were signatory parties, or on the basis of the principle of reciprocity. China's laws, regulations and other measures ensure national and MFN treatment to foreign right-holders regarding all intellectual property rights across the board in compliance with the TRIPS agreement.

Ⅲ. Substantive standards of protec- tion

1. Copyright protection

The Copyright Law, which was promulgated in 1990, established the basic copyright protection system in China together with the Implementing Rules of the Copyright Law (amended on October 27,2001), the Provisions on the Implementation of the International Copyright Treaty (25 September 1992) and other related laws and regulations. In principle, this system was in compliance with the international IPR treaties and practices.

2.Trademarks, including service marks

The Trademark Law, its implementing rules and other relevant laws, administrative regulations and department rules constituted the existing trademark legal system in China. The objective of these laws was to provide protection to right-holders in line with the international conventions and prevailing practices regarding intellectual property rights, which was embodied both in the regulations on the substance and procedures for trademark registration and in the protection of trademark exclusive rights.

3.Geographical indications, including appellations of origin

China fully complies with relevant articles in the TRIPS agreement on geographical indications.

4. Industrial designs

The industrial design provisions of China's patent law implement substantial portions of the TRIPS agreement requirements relating to industrial designs. One notable exception was the area of textile designs. China will incorporate this protection into its law and to provide such protection to domestic textile designs.

5. Patents

China revised its patent law in 1992 for the first time, taking measures to enhance consistency with the TRIPS agreement in terms of major provisions and protection standards.

6.Plant species protection

China is a party to the 1978 text of the Universal Convention on the Protection of Plant Varieties ("UPOV"). In March 1997, the State Council formulated and promulgated the Regulation on the Protection of New Plant Varieties, thus offering protection for new plant varieties in a sui generis form consistent with the requirements of the TRIPS Agreement.

7.Layout designs of integrated circuits

China is among the first countries to sign the 1989 Treaty on Intellectual Property in Respect of Integrated Circuits. The specific Regulation on the Protection of Layout Designs of Integrated Circuits was issued in April 2001 and would be effective on 1 October 2001.

8.Undisclosed information

Article 10 of the Anti-Unfair Competition Law provides that a business operator must not infringe upon trade secrets. Under the same Article, obtaining, using or disclosing another's trade secrets by a third party who clearly knew or ought to have known that the case fell under the unlawful acts listed in the preceding paragraph was deemed infringement upon trade secrets. Trade secrets referred to any technology information or business operation information which was unknown to the public, could bring about economic benefits to the obligee, had practical utility and about which the obligee had adopted secret-keeping measures. Article 219 of the Criminal Law has similar definitions on trade secrets.

Ⅳ.  Enforcement

1.Civil judicial procedures and remedies

The measures for cracking down on intellectual property piracy were always severe in China. In judicial aspects, courts at all levels were continuously paying attention to the trial of IPR cases.

Where an infringement of intellectual property rights was found in China, the person concerned could bring a lawsuit to a court.

Since 1992, special IPR courts have been set up in major cities such as Beijing and Shanghai on the basis of their specialized collegial panels. According to China's legislation, individuals and enterprises would be held responsible for all their IPR infringing activities and subject to civil and/or criminal liabilities. Where any person violated the IPR of another person and the circumstances were serious, the person directly responsible would be prosecuted for his criminal liability by applying relevant provisions of the Criminal Law. If found guilty, the person directly responsible could be sentenced to a fixed-term imprisonment of no more than seven years or be subject to detention or a fine.

2.Administrative procedures and remedies

Most IPR enforcement in China was done through administrative actions.

At present, different agencies were responsible for IPR policy formulation and implementation. The State Intellectual Property Office ("SIPO") was responsible for patent approval; the Trademarks Office under the State Administration for Industry and Commerce ("SAIC") was responsible for trademarks registration; the Copyright Office was responsible for copyright policy making; SAIC was responsible for anti-unfair competition, including the protection of trade secrets; the State Drug Administration ("SDA") was responsible for administrative protection of pharmaceuticals; the General Customs Administration was responsible for border measures; the Ministry of Agriculture and the State Administration of Forestry were responsible for protection of plant varieties; the Ministry of Information Industry was responsible for the protection of layout designs of integrated circuits; and the State General Administration of the People's Republic of China for Quality Supervision and Inspection and Quarantine and SAIC were responsible for combating counterfeiting activities. Other agencies like the agency for press and publications, the people's courts and police were also involved in the protection of IPR in China.

The Trademark Law provided that in the event of any infringement of the right to the exclusive use of a registered trademark, the infringed right - holder could request the administrative department for industry and commerce at or above the county level for disposition. The relevant administrative department for industry and commerce had the power to order the infringer to stop the infringing act immediately and to compensate the infringed right-holder for its or his losses. SAIC and its local agencies above the county level could also impose a fine upon the infringer. The Patent Law provided that the patentee and interested party could request the administrative authority for patent affairs to handle the infringing act. The administrative authority could order the infringer to stop the infringing act immediately and mediate on damages at the request of the parties concerned.