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Comprehensive Guide to Intellectual Property Protection in China

China follows the principle of territoriality in IP protection, meaning IP rights are only valid and protected within the country unless covered by an international convention or agreement. Improving IP protection is a critical concern for companies operating in China, and the Chinese government has made significant strides to enhance IP laws and establish new IP appeals courts to foster innovation and improve the business environment.

Definition and Importance of Intellectual Property (IP)

Intellectual Property (IP) encompasses proprietary rights over works, inventions, trademarks, geographical indications, trade secrets, layout designs of integrated circuits, new plant varieties, and more. The most common IP rights include copyrights, patent rights on inventions, utility models and designs, and trademark rights. A comprehensive IP strategy is essential for businesses operating in China to protect their intellectual assets.

IP Registration in China

Domestic IP registration or filing is required to protect your IP in China effectively. China primarily follows a "first-to-file" rule for IP registration, meaning the first to register IP rights holds those rights exclusively. Therefore, registering your intellectual property rights in China as soon as possible is crucial.

Patent Registration

Necessity: Patents are valid and protected in China only after proper registration.

Requirement:

  • Inventions and utility models must possess novelty, creativity, and practicality.

  • Designs must not fall under existing designs.

  • Overseas entities must engage a qualified agent for registration.

Authority in Charge: Patent Office of China National Intellectual Property Administration (CNIPA)

Procedure:

Step

Invention Patent

Utility Model

Design

Preliminary Search & Analysis

✔️

✔️

✔️

Document Preparation & Filing

✔️

✔️

✔️

Application Acceptance

✔️

✔️

✔️

Application Fee Payment

✔️

✔️

✔️

Application Classification

✔️

✔️

✔️

Preliminary Examination

✔️

✔️

✔️

Supplement Documents (if any)

✔️

✔️

✔️

Substantial Examination

✔️ (+ Office Action if any)

N/A

N/A

Patent Right Grant

✔️

✔️

✔️

Registration Formalities

✔️

✔️

✔️

Issuance of Patent Certificate

✔️

✔️

✔️

Timeline:

  • Invention: 2-3 years (can be shortened to 1.25 years for high-value patents)

  • Utility Model: 6-9 months

  • Design: 6-9 months

Validity:

  • Invention: 20 years

  • Utility Model: 10 years

  • Design: 15 years

Copyright Registration

Necessity: Though copyrights are automatically gained upon creation and protected under international conventions, registration provides an official certificate that aids in defending against infringement and is required for software copyright transactions.

Requirement:

  • The work must be original and in a form that can be expressed in literature, art, or science.

  • Overseas entities should engage a qualified agent due to the need for Chinese documents and support.

Authority in Charge: National Copyright Administration and its local branches

Procedure:

Step

Procedure

Documentation Preparation

✔️

Application Submission

✔️

Acceptance of Application

✔️

Fee Payment

✔️

Preliminary & Substantive Review

✔️

Issuance of Registration Certificate

✔️

Publication on Website

✔️

Timeline: 1.5-3 months

Validity:

  • Indefinite period for rights of authorship, revision, and integrity preservation.

  • Life of the author plus 50 years for various other rights.

Trademark Registration

Necessity: Trademark registrants enjoy exclusive rights and legal protection. Due to the "first-to-file" principle, early registration is essential.

Requirement:

  • The trademark must have distinctive characteristics and not conflict with prior rights.

  • Overseas entities must engage a qualified agent.

Authority in Charge: Trademark Office of CNIPA

Procedure:

Step

Procedure

Registration Availability Pre-checking

✔️

Documentation Preparation

✔️

Application Submission

✔️

Preliminary Review & Acceptance Notice

✔️

Substantive Review

✔️

Preliminary Approval & Announcement

✔️ (3 months for opposition)

Final Approval & Registration

✔️

Issuance of Registration Certificate

✔️

Timeline: 3-6 months

Validity: 10 years

Trade Secrets

Foreign businesses can claim damages and seek compensation for trade secret infringement through the courts, though the burden of proof is on the company. The Anti-Unfair Competition Law defines a trade secret as technical or business information unknown to the public, with commercial value and protected by the owner.

Internal IP Protection System

Establishing a thorough internal IP protection system is crucial. Strategies include:

  • Employee training to ensure actions do not compromise IP protection.

  • Controlling and monitoring employee access to key equipment and areas.

  • Incorporating IP protection into facility design and operational processes.

  • Using technologies to track and protect IP.

  • Including IP protection clauses in contracts.

  • Assigning a dedicated IP management team.

  • Actively monitoring for infringement.

  • Assessing the registration necessity in various regions and starting early.

  • Taking action against infringement by competitors.

Benefiting from Current IP Protection Measures

China has improved IP protection efforts. Reporting infringement directly to the competent authority can force the infringer to stop, confiscate illegal gains, impose penalties, and demand compensation.

Filing IP Rights with Customs

For businesses engaged in import-export, filing IP rights with customs is necessary for active protection and deterrence against infringement.

Timeline: IP customs filing takes around 1.5 months.

Procedure:

Step

Procedure

Documentation Preparation

✔️

Application Submission

✔️

Application Review

✔️

Fee Payment

✔️

Filing Successful

✔️

Conclusion

Protecting intellectual property is crucial for businesses operating in China. By understanding and following the proper procedures for patent, copyright, trademark registration, and trade secret protection, companies can safeguard their valuable assets and ensure compliance with Chinese laws. Establishing a robust internal IP protection system and leveraging current IP protection measures can further enhance the security of intellectual property in the competitive Chinese market.

Can Woodburn help you?

 

Woodburn Accountants & Advisors is one of China’s most trusted business setup advisory firms.


Woodburn Accountants & Advisors is specialized in inbound investment to China and Hong Kong. We focus on eliminating the complexities of corporate services and compliance administration. We help clients with services ranging from trademark registration and company incorporation to the full outsourcing solution for accounting, tax, and human resource services. Our advisory services can be tailor-made based on the companies’ objectives, goals and needs which vary depending on the stage they are at on their journey.

 

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Schedule a 30-mins complimentary, no-obligation call to see how Woodburn can help you. Book a call with our Head of Business Advisory - Kristina Koehler-Coluccia.

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