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(Last updated: 28 Nov 2007)
Overview
Since joining the World Trade Organization (WTO) in December 2001, the Chinese government has made significant progress to improve its Intellectual Property (IP) rights system and enforcement mechanisms. This includes revising its patent, copyright and trademark laws to comply with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs Agreement). Authorities in China have also stepped up enforcement of intellectual property infringement, commonly leading to convictions, fines or seizure of goods.
Despite the achievements made by the Chinese authorities to modernise its IP rights system, concerns remain within Australian industry about their ability to adequately protect and enforce IP rights in China. The Australian Federal Government is currently conducting Free Trade Agreement negotiations with China, to strengthen mutual cooperation and understanding in the area of IP rights.
For further information, please refer to the Australia-China Free Trade Agreement Negotiations.
Main types of IP rights in China:
- Trademarks
- Patents (inventions, utility models and designs)
- Copyright
- Plant breeders’ rights
- Domain names
IP risk minimisation
Some questions to consider:
- Do you have IP that is registrable in China?
- Have you factored in the costs and timeframes involved?
- Would loss of control of IP compromise your business?
- Are you are planning to sell into the domestic market in China, or export from China?
Some risk minimisation considerations:
- Consider IP protection as a central element of your China strategy.
- In your selection of business partners, think through the IP implications to the relationship. Identify where respective interests, commonality and competition lie.
- Make sure you hold the registrations in your name.
- Insert IP protection clauses in contracts with staff/partners, and marketing plans.
- Consider inclusion of IP protection measures during the design process.
- Conduct an 'IP audit' of your entire supply chain, and identify areas of potential attack.
- Maintain secrecy around key elements in production process (ie. provision of 'black box' componentry).
- Split manufacture into different locations (eg. partial manufacture in China, and part elsewhere).
IP Registration Framework
Main points:
- To receive IP protection within the Chinese system, you must register your particular type of IP with the relevant authority.
- Register what you can within the Chinese system, and take defensive measures to protect what you either can’t register or is unsuitable to register.
- The Chinese rely on the IP registration system extensively.
IP Enforcement Framework
There are two avenues of IP enforcement in China: administrative and judicial. The main State government agencies responsible for administrative enforcement are:
- Trademarks – Trademark Office of the State Administration for Industry and Commerce (SAIC) – www.saic.gov.cn
- Patents – State Intellectual Property Office (SIPO) – www.sipo.gov.cn
- Copyright – National Copyright Administration (NCA) – www.ncac.gov.cn
In addition, there are two avenues for judicial enforcement: civil and criminal.
Austrade can assist you by identifying appropriate service providers in this area, and help you to understand the general issues.
Additional information on the IP system in China can be found on the following website:
IP Australia - Chinese IP Information and Resources |