The history of China's legislation of Intellectual Property Law (IP Law) began at the end of the Qing Dynasty. The "Copyright Law of the Qing Dynasty" was the first copyright law in our country and issued in 1910 by the Qing Dynasty. However, it had never been executed.
Intellectual Property Rights (IPRs) have been acknowledged and protected in China since 1979. China has acceded to the major international conventions on protection of IPRs. Domestically, protection of IP Law has also been established by government legislation, administrative regulations, and decrees in the areas of trademark, copyright and patent. This has led to the creation of a comprehensive legal framework to protect both local and foreign intellectual property.
In 1980, China became a member of the World Intellectual Property Organization (WIPO). It has patterned its IPR laws on the Berne Convention for the Protection of Literary and Artistic Works and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). We think since then, China has basically brought its intellectual property protection level near the international standards. Here, we want to share some personal ideas about IPRs protection in China based on the current legal framework of Chinese IP Law. What we discuss is with our own knowledge and legal practice and is just for your reference.
Zhong Yi, Attorney at Law, Shanghai Runhe Law Firm
Member of the Shanghai Bar Association Intellectual Property Rights and Foreign-related Law Research Committee
source of the law of intellectual property
China Intellectual Property Law comes from the following form:
1. Constitution
The Constitution is our national fundamental law. The regulations on protecting science and technology, literature and art in the Constitution are the basis for the making of The Law of Intellectual Property.
2. Laws
The main source of the "Law of Intellectual Property" is laws, including the "Copyright Law", the "Patent Law", the "Trademark Law", the "Law for Countering Unfair Competition" and other special laws, as well as other legal regulations concerning protecting intellectual property in the "Civil Law" and the "Criminal Law".
3. Administrative regulations
Administrative regulations refer to all rules, implementing regulations, decisions, orders, etc. concerning intellectual property made by the State Council and the related authorities of intellectual property.
4. Judicial interpretation
Judicial interpretation refers to the explanation of the "Law of Intellectual Property" to be applied to concrete affairs or cases by the Supreme People's Court. The form of its expression is advice on the application of the law, the explanation of law concerned and the written replies to subordinate cases from the Supreme People's Court.
5. International conventions
International conventions refer to international multilateral conventions and bilateral conventions concerning intellectual property. Up to now we have already acceded to more than ten international conventions and bilateral conventions concerning protecting intellectual property, such as the "Bern Convention", "Paris Convention for International Protection of Industrial Property", etc. They are both the basis of international protection of intellectual property, and the guidance of legislation of the "Law of Intellectual Property" in the country.
Patent Law of the People's Republic of China (2000)
(Adopted at the 4th Session of the Standing Committee of the Sixth National People's Congress on March 12, 1984, Amended for the first time by the Decision Regarding the Revision of the Patent Law of the People's Republic of China, adopted at the 27th Session of the Standing Committee of the Seventh National People's Congress on September 4, 1992; Amended for the second time by the Decision Regarding the Revision of the Patent Law of the People's Republic of China, adopted at the 17th Session of the Standing Committee of the Ninth National People’s Congress on August 25, 2000, and announced by Order No.36 of the President of the People’s Republic of China)
Decision of the Standing Committee of the National People’s Congress on Amending the Patent Law of the People’s Republic of China
(Adopted at the 17th meeting of the Standing Committee of the 9th National People’s Congress of the People’s Republic of China on August 25, 2000)
Detailed Rules for the Implementation of the Patent Law of the People’s Republic of China
Patent Law of the People's Republic of China (1992)
(Amended by the Standing Committee of the National People's Congress on September 4, 1992)
Decision of the Standing Committee of the National People's Congress on Amending the Patent Law of the People's Republic of China
(Adopted at the 27th Meeting of the Standing Committee of the Seventh National People's Congress on September 4, 1992, promulgated by Order No. 62 of the President of the People's Republic of China on September 4, 1992, and effective as of January 1, 1993)
Rules for the Implementation of the Patent Law of the People's Republic of China(1992)
(Approved and amended by the State Council on December 12, 1992 and promulgated by Decree No. 3 of the Patent Office of the People's Republic of China on December 21, 1992)
Patent Law of the People's Republic of China (1984)
(Adopted at the Fourth Meeting of the Standing Committee of the Sixth National People's Congress and promulgated by order No. 11 of the President of the People's Republic of China on March 12, 1984, and effective as of April 1, 1985)
Regulation for the Implementation of the Trademark Law of the People’s Republic of China (2002)
Trademark Law of the People’s Republic of China (2001)
(Adopted on Aug.23, 1982 at the 24th Session of the Standing Committee of the Fifth National People’s Congress, amended for the first time according to the Decision on Amending the Trademark Law of the People’s Republic of China of the 30th Session of the Standing Committee of the Seventh National People’s Congress on Feb.22, 1993, and amended for the second time according to the Decision on Amending the Trademark Law of the People’s Republic of China of the 24th Session of the Standing Committee of the Ninth National People’s Congress on Oct.27, 2001)
Implementing Rules of the Trademark Law of the People's Republic of China (1995)
(First revision approved by the State Council on January 3, 1988; second revision approved by the State Council on July 15, 1993; and third revision approved by the State Council on April 23, 1995)
Trademark Law of the People’s Republic of China (1993)
Detailed Rules for the Implementation of the Trademark Law of the People's Republic of China (1993)
(Amendments approved January 3, 1988 by the State Council and promulgated 13 January 1988 by the State Administration for Industry and commerce)
Trademark Law of the People's Republic of China (1982)
(Adopted at the 24th Meeting of the Standing Committee of the Fifth National People's Congress and promulgated by Order No. 10 of the Standing Committee of the National People's Congress on August 23, 1982, and effective as of March 3, 1983)
Regulation on the Implementation of the Copyright Law of the People’s Republic of China (2002)
Copyright Law of the People’s Republic of China (2001)
(Adopted at the Fifteenth Session of the Standing Committee of the Seventh National People's Congress on September 7, 1990 and amended in accordance with the “Decisions on Amending the Copyright Law of the People’s Republic of China” made at the Twenty-fourth Session of the Standing Committee of the Ninth National People's Congress on October 27, 2001)
Regulations for the Implementation of the Copyright Law of the People's Republic of China
Copyright Law of the People's Republic of China (1990)
(Adopted at the Fifteenth Session of the Standing Committee of the Seventh National People's Congress on September 7, 1990)
1. Applicable Scope
1.1 The owner of the intellectual property right resides abroad; the infringement arises in China; and the preliminary fact or location of the infringement has been discovered.
1.2 The infringed intellectual property right includes but not be limited to: Invention, Utility Model, Design, Trademark, Copyright of the Software, etc.
2. The Legal Service Plan
Based on our experiences, we work out the legal service plan on captioned matters as follows: (those projects of protecting the client's intellectual property right by cooperating with foreign law firms and other professional institutions are warmly welcomed. )
2.1 The legal research for the infringed product
In these cases, while accepting the commission, we would request our client to provide the information related to the infringed product with the view to confirming the following issues:
2.1.1 The basic information of the infringed product and the nature of the intellectual property right.
2.1.2 Whether the client is the owner of the intellectual property right of the infringed product.
2.1.3 Through researching relevant Chinese laws and international treaties and bilateral agreements with China on intellectual property right, we will draw the conclusion whether the intellectual property right of the infringed product can be protected by relevant laws in China.
Notes:
In this phase, the client needs to provide the following information:
1. Whether the country where the infringed intellectual property right is registered have subscribed the relevant international treaty or bilateral agreement with China.
2. The copy or electronic version of the official documents of the fore mentioned treaty or agreement.
If the client fails to provide the information above, we have to apply to relevant administrative department for inquiry and confirmation and purchase some relevant documents. If these documents have no official Chinese version, we need to submit those documents to official translation organization, along with the infringed product information provided by the client, for the purpose of official recognition. The client should pay the expenses of such purchase and translation (Hereinafter referred to as "payable expenses"). These payable expenses should be paid in advance and we will balance after completion of the case.
2.2 The investigation about the infringing product
2.2.1 The investigation about the infringer and the infringing product
According to the information provided by the client, we will obtain the Preserved Evidence for infringing product through Notary Institution in the place where the infringement happened, and also collect the information about sale and production of the infringing product.
2.2.2 The legal analysis of the infringing product
According to the result of the investigation above, we will carry out a legal analysis. If the infringement has been subject to a crime liability or administrative penalty besides the civil responsibility, we will suggest the client put the infringer into the process of justice or administration. The participation of the court or the government usually benefits the investigation of the case, because the criminal or administrative penalty can efficiently stop the infringement and the official conclusion can become the base of the coming civil litigation as well.
2.2.3 The preparation before the legal action.
We will issue a memorandum for this phase, in which we will give the client suggestions on the legal action that should be adopted.
Notes:
Pursuant to our experiences for handling these cases, the term of assignment in this phase will be two months. We would like to suggest the client retain a professional commercial investigation company to investigate the infringing product all over the country when the term of assignment expires or no expected evidence is obtained even with the government intervention. In our opinion, professional commercial investigation companies are more suitable for investigating in an unspecified region all over the country. The client may directly designate a commercial investigation company or choose those we usually work together. Our pre-investigation and legal analysis will be helpful for the client and the commercial investigation company to settle the scope and estimate the expenses of the investigation.
2.3 The legal action to the infringer
According to the result of investigation of the two phases above, along with the client's suggestion, we will help the client to stop the infringement and obtain the compensation by taking one of the following legal actions:
2.3.1 To issue an Attorney Letter notifying the infringer to stop the infringement and file tort litigation against infringer on behalf of the client;
2.3.2 To request and cooperate with the administrative department to investigate and punish the infringement; or
2.3.3 To complain the infringement to the justice authority and cooperate with it to impose the infinger a criminal penalty.
Notes:
In this phase, it's hard to estimate the legal service fee for the reason that there is no exact information about the infringer and infringing product. If filing a lawsuit, we usually charge 30 percent of the compensation. In case that the lawsuit object is absent, small or unrealizable we may charge a fixed fee after negotiating with the client and concluding an agreement.
2.4 About the payable expenses
The client should pay the following expenses when the lawyer is trying to handle the case,
(1) Fees of Litigation or Arbitration, along with the Guarantee Fee of Property Freezing, Audit & Evaluation Fee, Postage Rate and charge for copying documents etc.;
(2) Fees charged by the government, the court, the authentication instutution, the notary and other departments related to the case;
(3) Costs of Transportation, Accommodation and phone calls related to the case;
(4) Costs of experts, translation, copying and other fees of investigation related to the case; and
(5) Other expenses and costs paid upon Party A's approval.
The abovementioned "Transportation Fees" includes not only air tickets, steamer tickets and taxi fares, but also gas fees, road fees, bridge fees and parking fees etc arisen when the attorney of Party B drive on his own; the commissioned attorney has the right to choose the most efficient way of transportation and the client should ensure the necessary working conditions for the attorney; the costs of accommodation can be agreed in detail by both parties.
3. The mode of the legal service
The above plan is summarized based on the rich experiences Zhong Yi attorney at law gained in dealing with all kinds of intellectual property infringement cases. You may refer to relevant information about Zhong Yi attorney through http://www.runhelaw.cn/. Zhong Yi attorney at law will handle your case with the support of the whole Lawyer Team of Run He Law Firm on the basis of a legal sevice contract concluded by you and Run He Law Firm in which your request is clearly stated. If necessary, we will also cooperate with the commercial investigation company or other law firm in China to provide profession legal service throughout China for you.
Conclusion
In short, intellectual property infringement may involve various legal issues, so both our cost and the client's budget need to be estimated for each case. We'll work out a specific and appropriate legal service plan for our client after comprehensively considering the client's request, our cost as well as how complicate the case is. Please do not hesitate to contact us if you need more detailed information.
Zhong Yi, Attorney at Law
Shanghai Run He Law Firm
Email: steven@runhelaw.cn