Overview of China’s Intellectual Property Laws
by See Wee Lee
China is still the largest market and manufacturing hub in the world. Understanding IP protection in China is important to decision making for business development, whether it relates to manufacturing, distribution, or selling goods or services.
Definition
Intellectual property rights (the “IPRs”) have been acknowledged and protected in the People's Republic of China since 1979. In China, the definition of intellectual property is referred to the results of any original creation of the human intellect in social practice. China IPR are mainly classified into three broad classes, including copyright, patent rights and trademark rights, of which patent rights and trademark rights are also collectively referred to as “industrial property rights”. Industrial property rights include patents, trademarks, service marks, manufacturer names, appellations of origin, prevention of unfair competition, and rights to new varieties of plants, layout designs of integrated circuits, trade secrets, traditional knowledge, genetic resources, and exclusive rights to folklore.
On May 28, 2020, the "Civil Code of the People's Republic of China" ( the "Civil Code") was officially adopted, and came into force on January 1, 2021. According to Article 123 of Chapter 5 of the Civil Code, the right holder/owner enjoys IPR in accordance with the law. The right holder/owner has the exclusive rights of IPR in the following property according to the law: (1) Works; (2) Inventions, Utility Models, and Designs Patent; (3) Trademarks; (4) Geographical Indications; (5) Trade Secrets; ( 6) Layout-design of integrated circuits; (7) New plant varieties; and (8) Other objects prescribed by law.
Trademark
Based on the Chinese trademark law, a trademark is defined as "any symbol that distinguishes them from the goods of natural persons, legal persons or other organizations from the goods of others, including words, graphics, letters, numbers, three-dimensional signs, color combinations and sounds, as well as combinations of the above elements, are registrable as trademarks."
China adheres to the current version of Nice Classification which divides all goods and services into 45 trademark classes (34 for goods and 11 for services), as similar to USPTO trademark classification system. Also, China has its own Chinese Classification of Goods and Services (“Chinese Classification”) , which is called “Subclass System”. This system determines the similarity between goods and services. Items classified into the same subclass are usually considered similar, while items classified into different subclasses are usually deemed dissimilar despite being in the same class. China took the Basic Numbers and produced its own list, identifying for each Class the subclasses and the Basic Numbers in each subclass. For instance, Class 15 has 2 subclasses: subclass 1501 includes musical instruments, and subclass 1502 includes accessories and parts for musical instruments. As you might imagine, pianos and accordions are in subclass 1501, and tuning forks are in subclass 1502.
In China, registered trademarks are valid for a period of 10 years from the registration date.
Patent
The purpose of Chinese patent law is to protect patent rights for inventions-creations, to encourage inventions-creations, to foster the spreading and application of inventions-creations, and to promote the development of science and technology, for meeting the needs of the construction of socialist modernization.
Patents in China are granted by the China National Intellectual Property Administration (CNIPA), which was renamed in English on 28 August 2018 from the State Intellectual Property Office (SIPO). The three types of means of “ inventions-creations”, are invention patents, utility model patents, and design patents:
Invention patents refer to a new technical solution relating to a product, a process or improvement thereof. An invention patent is valid for 20 years from the date of filing of patent application.
Utility model patent refers to a new technical solution suitable for practical use proposed for the shape, structure or combination of the product. A utility patent is valid for 10 years from the date of filing of patent application.
Design patents refer to any new design of the shape, pattern, or color, and their combination, that creates an aesthetic feeling and is fit for industrial application according to China’s patent law. A design patent is valid for 15 years from the date of filing of patent application.
Copyright
Copyright recording is not mandatory in China. China is a signatory to the Berne Convention and other international intellectual property treaties, therefore, copyright in China automatically arises when an original work is created. However, it is best to file a copyright registration in China immediately after the creation of a logo design as it will create prima facie evidence of copyright ownership.
Pursuant to Article 2 of the Copyright Law of the People's Republic of China, the term "work" referred to in the Copyright Law means intellectual creations with originality in the literary, artistic or scientific domain, insofar as they can be reproduced in a tangible form.
Most importantly, China’s Copyright Law states that an employee will own the copyright to anything such employee creates during the course of employment, except for engineering designs, product designs, maps, and computer software, and other works created mainly with the employer’s resources, unlike in the U.S. where a company will own the copyright of a “work for hire” by an employee if the work was made within the scope of that employee’s employment.
Under Chinese copyright law, once registered, the copyright registration will last until the expiry of that copyright in the registered work. Generally speaking, the copyright is valid during the lifetime of the author and plus 50 years after the death of the owner. No renewal or extension.
If you are interested in protecting your intellectual property rights in China, contact See Wee Lee, sli@meimark.com