Trademark Law (People's Republic of China)

The trademark has been in the People's Republic of China implemented the early 1980s to the Chinese market attractive for foreign investors to make. Despite these reforms and agreements, China is still one of the countries with the highest number of trademark infringements.

Trademark protection in China

The company that was the first to register the brand with the Trademark Office in the PR China is considered a company with trademark rights. The license to use the trademark is valid for ten years and can then be renewed for a further ten years. This includes both the written brand name and the graphic representation of the brand logo. In order to avoid confusion, the registered brand logo must be clearly distinguishable from other logos. The license plate protection is also intended to protect well-known brands from counterfeiting of the packaging design, the presentation and the equipment. Accordingly, the buyer must not be pretended that it is a known product. A brand is considered known if it is recognizable by a larger group of people. General markings are excluded from this protection.

Developing trademark laws in China

The intellectual property developed late in the People's Republic, as far as the 1980s, no private property existed. In the PRC, the first trademark protection law was enacted in 1982, and changes to the law were made in 1993 and 2000. In addition to Chinese laws, trademarks are protected by international agreements in the PRC. In 1980 the PR China became a member of the World Intellectual Property Organization , in 1985 of the Paris Convention for the Protection of Industrial Property , in 1989 of the Madrid Agreement on the International Registration of Trademarks and in 1995 of the Madrid Protocol on Trademark Protection , and in 1989 of the Agreement on Trade-Related Aspects of the Intellectual Property Rights. The international agreements are considered to be in addition to the laws of the PRC and in the event of a dispute involving foreign companies, the law of the international agreements will be decided.

On May 1, 2014, the amended trademark law came into force, which is intended to strengthen the protection of trademarks in China by foreign and Chinese companies. The main changes concern:

Definition of a maximum processing time
Introduction of acoustic brands
Increased protection of famous brands
Protection of unregistered trademarks
Improved objection procedure

Membership in international agreements

China is a member of the following international agreements:

World Intellectual Property Organization
Paris Convention for the Protection of Industrial Property
Madrid Agreement on the International Registration of Trademarks

Trademark infringements

In the event of a trademark infringement, the aggrieved company can either turn to the competent administration or to a court , which will initiate civil or criminal proceedings. Foreign companies in China always have the option of jurisdiction in accordance with international agreements. Since China not only has national laws for the protection of intellectual property, but is also a member of corresponding international agreements, foreign companies can always refer to the international agreements. Affected companies can take various action against injuries. There are 3 different ways to tackle corporate injuries:

Administrative procedure of the Administration for Industry and Commerce (AIC) with judicial power. The administrative authority can, for example, order a sale to be stopped or the destruction of goods. However, no compensation is possible.
Civil litigation. In most cases this is slower, more expensive and the plaintiff is responsible for providing evidence. However, in contrast to the administration, the court has the option of imposing damages.
Criminal proceedings. For this, either the aggrieved company files a complaint or it turns directly to a court. In principle, cases can be prosecuted if the turnover of the counterfeit goods exceeds 50,000 RMB (as of October 2015 around 6,900 euros) or the income exceeds 30,000 RMB (as of October 2015 around 4,100 euros). However, this only applies to natural persons . In the case of legal persons, which include companies, the prerequisites for criminal proceedings are three times this amount. The advantage here is the comparatively high sentence, with fines of up to 500,000 and imprisonment of up to three years.

literature

Katrin Blasek: Trademark law in the People's Republic of China. Carl Heymanns Verlag, Cologne, Berlin, Munich 2007, ISBN 3-452-26587-0
Häuselschmid, A. 2004. Strategies against piracy in China. Frankfurt: VDMA Focus Law
Gordon CK Cheung: Intellectual property rights in China. Routledge, London 2009
Robert Heuser: Introduction to the Chinese legal culture. 3rd edition, Institute for Asian Studies, Hamburg 2006, ISBN 3-88910-229-8 .
Robert Heuser: Outline of Chinese Business Law. Institute for Asian Studies, Hamburg 2006
Qingjiang Kong: WTO, Internationalization and the Intellectual Property Rights Regime in China. Marshall Cavendish, Singapore 2005

Web links

Classification of goods and services according to the Nice Classification (brand classes)

Individual evidence

^ Gordon CK Cheung: Intellectual property rights in China. Routledge, London 2009

^ Qingjiang Kong: WTO, Internationalization and the Intellectual Property Rights Regime in China. Marshall Cavendish, Singapore 2005

^ Robert Heuser: Introduction to Chinese legal culture. Institute for Asian Studies, Hamburg 2002

↑ Häuselschmid, A. 2004. Strategies against piracy in China. Frankfurt: VDMA Focus Law