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Available Measures to Protect Your IPR in China Featured

15 August 2012 By In Intellectual Property
China intellectual Property China intellectual Property

Intellectual property (IP) can be anything from a particular manufacturing process to plans for a product launch, trade secret like a chemical formula, or a list of the countries in which your patents are registered. It may help to think of it as intangible proprietary information. In mainland China, we have several ways to protect your IPR. 

Criminal Action in China

The intellectual property (IP) rights holder may seek criminal remedies against infringers. For common IP crimes, the IP rights holder may file a complaint directly with the competent court, and for serious IP crimes, the IP rights holder should report the crime to the local public security office of the place of crime so that police can investigate, and possibly initiate a raid. All kinds of appropriate evidence discovered in inspections or searches relevant to the guilt or innocence of a defendant may be seized. Products other than those named in a warrant may be seized at the discretion of law enforcement officials.


Then after investigation the public security office will transfer the criminal case to the public prosecutor's office for possible indictment. After indictment, there will be a series of hearings for the criminal trial process.

The criminal penalties with respect to counterfeiting are as follows:
(a) for use or sale resulting in substantial illegal income, not more than three years imprisonment and/or fine;
(b) for use or sales where the illegal income is enormous, not less than three years or more than seven years imprisonment and fine.

Administrative Action in China

In China, the preferred method of investigating infringement is through administrative complaint. Administrative agencies, such as the Administration for Industry and Commerce (SAIC), the IP Office, and the Copyright Authority, have the power to investigate companies for patent, trademark, unfair competition, and copyright infringement. In addition, there are fewer formalities, and the cost of filing an administrative complaint is less than the cost of litigation. However, a complainant is not in control of the process, and administrative authorities can sometimes seem less than aggressive in pursuing complaints against Chinese companies.

Injunctions

An IP rights holder is entitled to an injunction that is reasonable to deter future infringement in China. Under certain situations, the rights holder may apply to the court for preliminary injunction against infringement before a lawsuit is filed. The rights holder must submit sufficient evidence showing its intellectual property rights and existence of infringement or threatened infringement. The rights holder must provide security for the preliminary injunction. Once the preliminary injunction order is granted by the court, the rights holder must file a lawsuit with the court within 15 days. The Court has the authority to order prompt and effective preliminary execution against infringing goods in order to stop the infringement, remove the obstacle, and eliminate danger. The Court has broad discretion to take provisional measures.

However, the rights holder is liable for any damages due to a wrongful preliminary measure not limited to the amount of a bond. The court will consider various factors in determining the amount of bond, such as sales revenue of goods involved, storage fees, and potential damages or losses as a result of the order.

You are encouraged to contact our China intellectual property lawyers to consult us on any IPR protection and litigation matters in China.

Read 518 times Last modified on Friday, 13 September 2013 12:49
Shenzhen Lawyer

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