How can I protect my Intellectual Property (IP) in mainland China?
Image by August Euler
Though IP theft – particularly piracy – is much more obvious in China than in many places in the West, there are laws, both national and international, that aim to prevent it.
Trademark infringement occurs when someone uses an identical or similar design or concept to a registered trademark – a name, character or logo, for example – without permission from the owner. Alternatively, it occurs if they obstruct the trademark’s owner from using the trademark. The rule also applies to designs or concepts that are different, but similar enough to cause confusion in the eyes of the customer. For information on how to register a trademark, read this article.
According to Chinese law, people infringing on trademarks in such a manner have an obligation to cease their behavior once they are aware that there is an issue. In an ideal world, such instances would merely be unhappy accidents and infringers would admit fault and move on. But in reality, many need the threat of punishment, and that is what the law promises: payment of compensation (the amount to be specified based on financial loss incurred) or even criminal charges in extreme cases (such as an extremely large loss of money, severe damage to the brand or instances where the public’s health is placed at risk).
If infringement occurs and legal action must be taken, you will need to take your case to your nearest public court (there is no specific IP court, so any will do), with evidence that your trademark has been used in a way that you have not authorized, and that there has been damage (financial loss) incurred to you, such as loss of sales or consumer confidence.
You can do this solo and represent yourself in court, or you can hire a lawyer if you want professional representation. Be aware, though, that many Chinese courts have a backlog of cases and pushing such cases through can be a very long and arduous process.
Patent infringement occurs when someone who does not have permission from the patent owner nevertheless manufactures, uses or sells patented products or concepts. According to Chinese law, the infringer should bear a legal responsibility to stop the infringement, make a public apology, and pay compensation to the patent owner according to the financial damage incurred. For information on how to patent something in China (and then abroad) see this article.
If you find that someone is infringing on your patent you should report their behaviour at your local office of the State Intellectual Property Bureau. The bureau will investigate the infringement on your behalf, and enforce the legal action mentioned above where it is deemed necessary.
Patent owners can also take infringers to court to stop the infringement or seek compensation, following the same methods as in trademark cases, outlined above. The compensation amount is decided based on the value of the patent and the financial damage incurred upon the patent’s owner.