China has formulated comprehensive intellectual property rights laws and regulations. Today, it is earnest and fair in executing these laws, and much has been accomplished in this regard.
These great achievements in the execution of the intellectual property rights protection laws and regulations are above all the product of comprehensive judicature and administration provided for in these same laws and regulations.
1. China's judicial institutions for intellectual property protection.
In China, any citizen, legal person or organization entitled to intellectual property rights whose rights and interests have been infringed may bring a lawsuit to the people's court in accordance with the law and receive practical and effective judicial protection.
The people's courts exercise judicial power independently according to law, are subordinate only to the law itself, and are not subject to interference by any administrative organ, public organization or individual.
Earnest execution of the law is the core of the administration of
justice. The judicial activities of a people's court are carried out on the basis of
facts, and with the law providing the criterion. Cases are tried strictly in accordance
with substantive and procedural laws. Cases are heard in an open court, and a collegial
system, a challenge system, a system whereby
The establishment and fortification of the judicial organs for trying intellectual property rights cases and the optimization of the judicial system are important guarantees for the people's courts correctly to handle such cases and conscientiously to protect intellectual property rights according to law. In recognition of the specialized nature of intellectual property rights cases and the advanced nature of the technology often involved, the higher people's courts in several provinces and municipalities directly under the central government such as Beijing, Shanghai, Guangdong, Fujian and Hainan have since 1992 established such intellectual property rights courts as their actual needs demand. The intermediate people's courts in all the special economic zones as well as Beijing and Shanghai have also established intellectual property rights courts. Intermediate people's courts in the capital cities of other provinces, municipalities and autonomous regions have set up collegial panels specializing in cases involving intellectual property rights protection. In this manner the hearing of intellectual property rights cases is centralized with the advantageous results that unity in executing the law is ensured, experience in dealing with the law is amassed, and the quality of judicature in intellectual property rights cases is strengthened.
With the implementation of China's law on intellectual property
protection and the increasing improvement of the judiciary's protective power, people's
courts at various levels in China have accepted and decided a large number of civil
disputes concerning intellectual property rights. A total of 3,505 cases concerning
intellectual property rights disputes were accepted and handled by people's courts
throughout the country from 1986 to the end of 1993, 1,168 of which concerned
Intellectual property rights are important civil rights. In civil infringement cases, the people's court is empowered to order the infringer to bear civil responsibility for the cessation of the infringement, for the elimination of any negative effects caused by his actions, for offering apologies, and for compensation for any losses in accordance with the law. Furthermore, it is empowered to confiscate the infringer's illegal gains and/ or adjudge the infringer to criminal detention or a fine.
If the infringement of intellectual property rights is so serious
that it has disrupted the economic order and constitutes a crime, the infringer's criminal
responsibility is investigated and dealt with according to law. When a people's
procuratorate institutes prosecution for a criminal act of infringement, if the
According to China's Administrative Procedure Law, if a citizen, legal person or organization wishes to contest a judgement or order of an administrative department for intellectual property protection in a dispute concerning intellectual property rights and to initiate administrative procedure litigation, the people's court shall try the case and shall, in accordance with the law, make a decision to maintain, rescind, or alter it.
When a people's court tries a case arising from intellectual
property rights involving foreign nationals, it acts in accordance with Chinese laws and
relevant international conventions to which China is a party, adhering to the principle of
equity and reciprocity. In this way, the court provides the solid legal guarantees
necessary for expanding international economic, technological and cultural exchange and
cooperation. The Shenzhen Intermediate People's Court accepted the American E.F. Houghton
Company's suit against the Shenzhen Hailian Chemical Co., Ltd. for the latter's trademark
violations. Investigation proved the defendant's infringement and held it responsible. The
two parties negotiated a settlement through
Over the past few years, in an effort to raise the level of the administration of justice, the people's courts have adopted a series of potent measures to improve their quality and efficiency in handling cases. In order to amplify their impact, the people's courts have selected typical cases and tried them publicly, conducting information campaigns through the various public media. Undeniable social effects have been achieved through the use of specific cases in the popularization of legal education and the dignity of the socialist legal system has been maintained.
2. Administrative channels for intellectual property protection in China.
In addition to judicature in accordance with international practices, China's system for the protection of intellectual property rights comprises the Patent Law, the Trademark Law, and the Copyright Law and other administrative channels designated in intellectual property laws, all proceeding from China's actual conditions.
Under the Patent Law, the competent authorities in the State Council
and local people's governments have the right to establish patent offices. Today, China
has more than 50 patent offices established by local governments and more than 20 patent
offices established by various ministries and departments under the State Council. The
State Copyright Administration and local copyright administrative organs have been
Chinese intellectual property rights administrative departments exercise their legally stipulated powers and functions to safeguard law and order within the field of intellectual property, encourage fair competition, mediate disputes, settle cases involving violations of intellectual property rights, and protect the interests of the broad masses of the people by maintaining a good social and economic environment.
In China the administrative procedures for solving disputes concerning intellectual property rights are simple and convenient. Cases can be quickly filed for official examination and possible prosecution, investigation follows promptly, and efficiency in handling the case is high. This is advantageous to the owners of the rights. The patent administrative organs in China always treat patent violation claims seriously and deal with them without delay in accordance with the law.
Since the Copyright Law was put into force, local administrative
organs responsible for copyright affairs investigated and dealt with more than 150 cases
involving pirated books and video products from June 1991 to the end of 1993. They have
confiscated and destroyed the pirated goods and levied administrative sanctions on the
infringers. In 1994, the Chinese government has organized the departments concerned to
launch an assault, investigating and dealing with the illegal duplication of laser discs
and illegal reproduction of books. In
The Trademark Law of China has been in effect for more than ten years. During this time, the administrative departments for industry and commerce have dealt with 130,000 cases of trademark violation and counterfeiting, including a number of particularly serious cases, e.g. trademark violations or counterfeited trademarks for "Zhonghua" cigarettes, for "Forever," "Phoenix" and "Flying Pigeon" bicycles, for "Guizhou Maotai" wine, and for "Xingkaihe" ginseng. Effective protection was thus given to the lawful rights and interests of the registered trademark owners.
China's intellectual property rights administrative organs, in
accordance with Chinese laws and relevant international treaties to which China is a
party, adhering to the principle of equal treatment for nationals and non-nationals and
reciprocity, give protection to foreigners' intellectual property rights in accordance
with the law. For instance, the Zhejiang Provincial Patent Administration Office recently
reached a just settlement in a complaint brought by a foreign plaintiff concerning
unlicensed production of a cigarette lighter to which he held patent. The competent
authorities ordered the factory concerned to cease all acts of infringement and compensate
the foreigner for his losses. The State Copyright Administration investigated and then
dealt with a series of cases in which a
A large proportion of the cases concerning violations of foreigners' intellectual property rights were investigated and dealt with by China's intellectual property protection administrative offices on their own initiative, acting in accordance with their prescribed functions and powers.
China's administrative departments for industry and commerce have
undertaken the responsibility of maintaining economic order and can make market
investigations on their own initiative so as to effectively protect the rights of the
registered trademark owners. Since 1988, administrative organs for industry and commerce
at various levels in Guangdong Province have investigated and dealt with 301 cases
concerning the violation of US-owned trademarks. Out of these 301 cases, one third were
filed by the American trademark owners, with the remaining cases being the product of
market investigations by the administrative organs for industry and commerce or consumer
complaints. China's intellectual property rights administrative offices are impartial, and
firmly safeguard the lawful rights and interests of those who hold such rights. This has
earned them praises from many foreign enterprises and joint ventures. Some of these
companies presented the administrative departments for industry and commerce silk banners
or gilt boards, bearing words of praise such as "Upright and honest, firm as a rock
in administering justice," "Impartiality in enforcing the law, support right,
eliminate wrong," "Just settlement, protection of commerce," "Strict