Chinese IP Law: A Frequent Superstition and the Lost Necessary Basics

Many people believe that in China intellectual property is rather a paper tiger than a serious method to protect a company?s innovation. Measures and strategies to register a brand, patent or design are assumed to involve more risks for the own invention than protection. This particularly includes the widespread fear of stealing and copying ideas, also referred to as ?counterfeiting?.

Is This Fear Justified? Or Can I Benefit from the Registration of My Invention in China?

In fact industrial property rights are extensively regulated in China. The Chinese government joined numerous important international agreements, such as the Paris Convention for the Protection of Industrial Property, which governs a whole lot of international patent filing rights, or the Patent Cooperation Treaty, which allows you to simultaneously apply for a patent in a large number of countries.

Nevertheless there are problems with regional protectionism, a lack of coordination between the different local government bodies and barriers caused by inexperienced human resources. However, you take a far higher risk of your invention or brand being copied in China if you decide to go without any official registration.

The benefits are simple, but substantial:

1. Without official protection, you won?t be able to take legal proceedings against any infringement of your property rights. Counterfeiting your products in China could then be seen as legal.
2. To prove an innovation?s origin and to protect the copyright, the official registration is necessary.
3. And last, but not least ? How will you sustainably generate revenue on the Chinese market if you haven?t eliminated the risks of counterfeiting?

Register Your IP in China ? But Know Whom to Talk to

As a foreign company without economic establishment in China, the registration often can?t be applied directly. Therefore a qualified Chinese law office, as well as special agents, have to be commissioned. Ask a patent law firm who is experienced with Chinese IP practice to find the best service providers for you.

The following overview displays the different types of property rights available for official registration and the official government bodies which correspond with the registration:

Trademarks

• China Trademark Office (CTMO)
• To register a trademark, the application itself has to be written in Chinese language. It is further advisable to register the trademark by using Chinese characters. Therefore, a word-for-word translation is not required; new brand creations are possible too
• The protection period is 10 to 20 years. Afterwards you can apply for an extension

Patents, utility models and industrial designs

• State Intellectual Property Office (SIPO)
• The invention is required to be new, industrially applicable and has to involve an inventive step. It is mandatory that the invention wasn?t published or used before the application for registration. Subsequent corrections of the application are possible to a very limited extent
• If a third party uses the invention during the process of applying and granting, user fees can be charged
• The protection period is 20 years for patents and 10 years for utility models and industrial designs. An extension can be applied for afterwards

Copyright

• National Copyright Administration of China (NCAC)
• There is no official registration necessary for the pure existence of a copyright
• Providing evidence, on the other hand, is much easier if you can refer to an official registration. The application control itself is managed by local copyright administrations
• Due to international conventions, there is further the possibility for an international registration
• The protection period expires 50 years after the originator?s death

Plant varieties

State Office of Agriculture (SOA)

Forest plants

State Forestry Administration (SFA)

 

• ?New? plant varieties have to meet the criteria of novelty, specialty, homogeneity and stability
• The application has to be submitted in Chinese language
• The protection period is 20 years for wine, forest trees, fruit trees and blooming trees and 15 years for all other plants

Internet domains and keywords

• China Internet Network Information Center (CNNIC)
• It is advised to register the own brand name as a domain name and keyword
• As with any other IP, remember: ?first come, first served?
• The protection period for domains is unlimited

Make a Move, or it Might Be Too Late

It could become one of the biggest mistakes for an international company to stand still concerning the registration of its IP in China. One day you might have the idea to expand into this promising new market, and believe us, you don?t want to face an already registered product which looks exactly like your own.