How To Enforce Intellectual Property Rights in China?

How To Enforce Intellectual Property Rights in China?

How To Enforce Intellectual Property Rights in China?

This step-by-step guide outlines what should be done if an intellectual property right (IPR) is infringed upon in the People’s Republic of China (China). Copyright, trademark, patent, and unfair competition are among the IPRs discussed in this guide (including counterfeiting).

1. Determine your right, claim and the damages caused by infringement

You can rely on the following legislation if your IPR is registered in China. In actuality, it is conceivable for a single right to be protected by many IPRs.

An IPR that has not been registered in China may not be enforced in China in most instances. However, because unfair competition is not based on any registered IPRs, an owner of an unregistered IPR may file a lawsuit against the infringement under China’s Anti-Unfair Competition Law (the AUCL).

2. Gather evidence

Before you begin any formal action, make sure all evidence is protected and notarized. It may be difficult to gather evidence if the infringer becomes aware of a possible lawsuit because the infringer may erase it.

There are three types of evidence you should gather:

  1. Evidence that proves you are the IPR owner (i.e., certificates).

  2. Evidence that proves the act of infringement by the infringer, including sale, manufacture, and so forth (e.g., suspected infringement samples, publicity materials).

  3. Evidence that supports the amount of compensation you request from the infringer. 

We strongly urge you to hire a legal firm or a private investigator to assist you in gathering evidence. As an extra way of gathering evidence, you may try collaborating with China’s administrative enforcement agencies or China Customs.

3. Consider all available enforcement avenues and formulate Enforcement strategy

Before you take action, you should develop an intellectual property (IP) enforcement plan. In your enforcement approach, you can use one or more of the following alternatives.

1. Negotiation and a Cease-and-desist Letter

In most situations, this is the initial step taken by IPR owners, as it informs the infringement of their rights. If the letter is disregarded and the violation persists, the evidence of intentional infringement might be used to establish it.

Letters written in English, in our experience, do not always produce satisfactory outcomes, as infringers are generally Chinese firms or people.

2. China Customs Seizes Shipments

China Customs has the authority to detain shipments if the import or export of products violates the IPRs registered with China Customs. To get assistance from China Customs in arresting infringing products, several steps must be followed.

To block shipments and acquire evidence, IPR owners may want to include China Customs in their enforcement plan. Customs seizures provide conclusive evidence of infringement.

An owner of a Chinese-registered IPR can use this option.

3. Procedures for Notification and Removal

E-commerce platforms can be held responsible for IP infringement in China if they do not remove links to infringing websites after being alerted of the infringement. Each e-commerce platform has its own set of notice-and-removal procedures. Proof of ownership, a link to the infringing items, and the claimant’s business license or certificate will all be required by a platform.

An owner of a Chinese-registered IPR can use this option.

4. Administrative Enforcement

Administrative enforcement authorities have the authority to collect and destroy infringing products, seize and destroy equipment used to manufacture infringing goods, levy penalties on infringers, and execute raids. Administrative authorities, on the other hand, do not have the authority to compensate IPR owners.

Administrative enforcement can also be employed to protect evidence that will be utilized in court.

An owner of a Chinese registered IPR can use this option. If the IPR isn’t registered, the owner of the IPR can sue the infringement under the AUCL for unfair competition.

5. Judicial Enforcement

Civil and criminal proceedings are examples of judicial enforcement.

Civil Proceedings

Injunctions, damages, delivery-up or destruction of infringing products, recall order and declaration of infringement, and validity are some of the remedies sought in civil actions. The average length of a civil case is six to twelve months. In infringement proceedings, plaintiffs may seek an Evidence Preservation Order or an Asset Preservation Order.

An owner of a Chinese-registered IPR can use this option. If an IPR owner does not register their rights, the AUCL allows them to sue the infringement for unfair competition.

Criminal Sanction

IP infringement cases may be reported to the Public Security Bureaus (PSB) for criminal investigation by administrative enforcement agencies and China Customs. Infringement can also be reported to the PSB by an IPR owner. It’s worth noting that unlawful earnings or illegal operating revenue must surpass specific criteria to be constituted a crime.

Penalties and imprisonment of up to ten years are possible punishments.

Unfair Competition

Anti-unfair competition legislation under the AUCL provides extra protection to IPR owners and is frequently invoked in conjunction with claims originating from other IP laws as a backup or alternative stance. Unauthorized use of brands, product packaging, store design, and trade secrets can all be sued under the AUCL.

Furthermore, because unfair competition claims do not have to be based on registered IPRs, an owner of an unregistered IPR may have an unfair competition claim against the infringement.

– You could visit here to see Procedure of China Trademark Registration.

– You could visit here to check the required documents of filing trademark in China

Contact AAA IPRIGHT: Email: [email protected]

Or sending your inquiry by filling the form: 






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