中国 has a bad reputation for IP protection, but the reputation might not be fully deserved. People often focus 上 occurrences of IP infringement in 中国 and mistakenly conclude that there is little IP protection 这里.

中国’当前的IP困境根植于“rule of the man – Emperor.” 中国 did not adopt the concept of “rule of law” until about 25 years ago when 中国 joined the international community. Since then, 中国 has been faced with a huge challenge of establishing an internationally acceptable legal framework. 中国 has made significant progress in the enactment of laws, establishment of a court system, and training of legal personnel. But 上 e cannot expect a perfect legal framework to be established in a short period of time. The fact is that IP protection is available in 中国 today. This area has been a key focus of the Chinese government and 中国’新兴的高科技产业。可以预见,在不久的将来IP保护将取得重大进展。

IP为一个增加价值 ’s business, and for many businesses it is important to register and protect IP rights in 中国. Even companies that have no business in 中国 should consider obtaining IP rights in 中国 as a defensive measure. Without IP rights in 中国, a business has no grounds to ask the Chinese legal system for help in stopping infringing activities. The Chinese legal system does not recognize foreign IP rights. Therefore, it can be important to include 中国 in a company’从一开始的IP战略。

This remainder of this 文章 focuses 上 a hypothetical situation involving trademark rights in 中国. What is a trademark? Words, phrases, designs, logos, and other commercial symbols used to identify products, services, or their producers in the marketplace can all be protected as trademarks, service marks, trade names, or trade dress. A company name can be protected against the use of similar names by others. A color scheme or unique theme for a business or product packaging can be protected as trade dress. Trademark protection in 中国 is based 上 a “first to register” basis. Trademark rights would be lost, for example, if another party were the 首先注册 a trademark.

The hypothetical involves BikeOne, which is a U.S.-based bicycle company with operations in the United States, Germany, and Japan. BikeOne uses the mark TIGER in connection with a series of bicycle parts, clothing, and apparel, and has trademark registrations for the mark TIGER in the Unites States, Germany, and Japan. Although BikeOne does not have business in 中国, it does not want a third party to use the mark TIGER in 中国 without is approval. Thus, BikeOne preemptively obtained a registration in 中国 for the mark TIGER for bicycle parts, clothing, and apparel.

CopyBike是一家澳大利亚自行车公司,其产品与BikeOne的产品非常相似。 CopyBike’s operation is limited to Australia. CopyBike also launched a line of products under the mark TIGER and obtained an Australian trademark registration for the mark TIGER. CopyBike manufactures its bicycle parts branded with the mark TIGER in 中国, and then sells those products in Australia. What recourse, if any, does BikeOne have against CopyBike with respect to the TIGER branded products?

由于CopyBike在美国,德国或日本不销售产品,因此BikeOne无法在这些国家/地区对CopyBike采取任何法律行动。 BikeOne也无法停止CopyBike’s activities in Australia because CopyBike is the legal trademark owner of the mark TIGER in Australia. However, as the legal trademark owner of the mark TIGER in 中国, BikeOne can stop CopyBike’s manufacturing in 中国. CopyBike’s manufacturing of bicycle products branded with the mark TIGER is considered an act of infringement under 中国’s Trade Mark Act.

An injured party generally has three avenues for enforcement of its IP rights in 中国: administrative enforcement, civil enforcement, and criminal enforcement. Administrative enforcement is conducted by government agencies and is generally the fastest and most efficient route. Civil enforcement is a lawsuit initiated and carried forward by the injured party. Criminal enforcement is reserved for more serious cases, such as those involving a large volume of infringing goods and highly illegitimate income. In addition to these three avenues, the rights holder can also ask Chinese customs to seize infringing products.

在这种假设下,BikeOne可以通过向当地的工商行政管理机关(AIC)提交请愿书来发起行政诉讼,其中CopyBike’s制造商位于。一旦AIC接受了请愿书,它将尽快进行突袭,并且—发现侵权物品的地方—命令CopyBike停止并停止并扣押和密封侵权商品和工具。随后,AIC会检查突袭期间查获的证据,做出书面决定,通常会命令向AIC支付罚款。在AIC认定侵权后,BikeOne还可以将案件提交法院,并要求法院对CopyBike进行赔偿和/或刑事制裁。

In this case study, BikeOne had the foresight to register its trademark in 中国. As a result, it could successfully stop the infringing activities of CopyBike. This case study shows the benefits of proper IP planning and why businesses might want to consider 中国 as part of their IP strategy.

作者:

平楚

86.21.2321.6000

[email protected]