Protecting intellectual property in China: IP issues

Protecting intellectual property in China

Protecting intellectual property in China

Intellectual property (IP) rights are the rights given to an individual over their own mind’s creation. He or she has the exclusive right to use that creation in a certain period of time. It is imperative that the intellectual property rights of a person be protected with utmost care and importance. Though this idea is highly acknowledged in China, there has only been a number of laws that address the ways in protecting these rights.

Protecting IP is very important and one should know that registration of the IP is the first step in doing this.

Types of IP and ways of protecting it in China

New technical solutions or improvements relating to a product or process

Protection by: Invention Patent
Length of Protection: 20 years from date of filing with a yearly renewal of the patent
Patent applications are filed with China’s State Intellectual Property Office (SIPO) or through an internal application under the Patent Cooperation Treaty (PCT).
It takes about four years for an application to be granted.

New technological solution relating to the shape, structure, or combination of a product for practical use

Protection by: Utility Model
Length of Protection: 10 years from date of filing
Applications are filed with China’s State Intellectual Property Office (SIPO).
Applications do not require comprehensive examination and can be granted within one year after the filing date.

New design, shape, pattern, color, or any combinations of such in relation to a product with aesthetic appeal

Protection by: Design Patent
Length of Protection: 10 years from date of filing
Applications are filed with China’s State Intellectual Property Office (SIPO).
Applications do not require comprehensive examination and can be granted within one year after the filing date.

Distinctive marks or names

Protection by: Trade Marks
Length of Protection: Valid for 10 years and renewable upon payment of fees. A trade mark will be cancelled if not used within 3 years from registration and a third party offers a way to remove the mark.

Registration of IP can be obtained by filing an application with the Chinese Trade Mark Office (CTMO) or through an international application under the Madrid Protocol designating China.

The “first to file” system is applied during registration.

They also don’t offer protection to unregistered trade marks unless they are considered as “well-known” trade marks under the Paris Convention.
It takes two years to register a trade mark.

Literary, artistic, and scientific works

Protection by: Copyright
Length of Protection:

  • The lifetime of the author plus 50 years after his or her death.
  • 50 years after the date of first publication/creation.

Registration is not mandatory but copyright owners can register their rights voluntarily through China’s National Copyright Administration (NCA) in order to establish ownership.

Enforcement

Protecting the intellectual creation of a person or a company is very important to ensure receiving the financial benefits of the IP. The Chinese law provides the option to do this.

Enforcing these IP rights is another thing in a big country with a different legal structure and language. Although formally this process may be in place, for mid-sized companies this will be extremely difficult to monitor and proof breach of IP rights and to litigate against it. Here is is better to align with a Chinese partner or to protect your findings and technologies in different ways.

Hopefully, the government will acknowledge the growing need of reinforcing the rules around intellectual property and make it a safe place for people to create more innovations. For assistance on Intellectual property registration in China, we are here to help you.

This entry in Asia was updated on August 1, 2017 by specialist.