INTELLECTUAL PROPERTY RIGHTS IN CHINA
First Renewal Term
Subsequent Renewal Term
The Chinese Trademark Law came into force on March 1, 1983. It was revised on February 22, 1993, and the revised law came into force on July 1, 1993. On October 27, 2001, it was revised for the second time and the revised law came into force on December 1, 2001. On August 13, 2013, it was revised again and the revised law came into force on May 1, 2014. The Implementing Regulations of the Chinese Trademark Law were enforced on September 15, 2002. They were revised on April 29, 2014, and enforced on May 1, 2014.
Multi-class trademark applications are available in China.
The applicants may file a trademark application in China directly with the China National IP Administration (CNIPA) or before the WIPO for international registration of the mark designating China.
According to a notice, the International Classification of Goods and Services for Registration of Trademarks (Nice Classification) 11th Edition, Version 2021 will be officially applied in China from 1st January 2021.
Any person may, within three (03) months from the date of the publication, file an opposition against the trademark that has, after examination, been preliminarily approved. If no opposition has been filed after the expiration of the time limit from the publication, the registration shall be approved, a certificate of trademark registration shall be issued, and the trademark shall be published.
A trademark in China is valid for ten (10) years from the date of registration. It may be renewed indefinitely time for successive periods of ten (10) years each.
A request to renew the registration must be filed within twelve (12) months prior to the date of expiration. A grace period of six (06) months is allowed by paying a corresponding surcharge.
A trademark registration in China may be subject to cancellation if it has not been used within a continuous period of three (03) years from the registration date.
The Patent Law of the People’s Republic of China (third revised edition in 2008) is the law pertaining to the domain of patent in China.
An applicant may obtain a Chinese granted patent by filing a national application directly in China. The authority responsible is the State Intellectual Property Office (SIPO) in Beijing, China. Foreign applicants can also designate China when they file a PCT (Patent Cooperation Treaty) application with respect to the inventions and utility models.
The Chinese patent law covers three distinct areas, namely invention patents, utility model patents, and design patents.
In China, an invention that satisfies the conditions of originality, novelty, inventive step, and industrial applicability, subjects to patentability. Process patent and product patent are the two types of patents that can be protected.
The types of patent applications that can be filed include Non-Convention Application and Convention Application.
China has no patent opposition procedure. However, any entity or individual (including a patent owner) can challenge the validity of a granted patent by filing an invalidation application with the Patent Review Board, which is a separate body from the courts.
The first annual fee is to be paid at the time of registration. All subsequent annual fees should be paid in advance before the anniversary of the filing date.
Invention patents are normally granted within three (03) to five (05) years and are valid for twenty (20) years from the date of filing (or the priority date if priority is claimed), subject to the payment of annuity fees. Utility models are normally granted within one (01) year and are valid for ten (10) years from the date of filing (or the priority date if priority is claimed), subject to the payment of annuity fees.
Design patents are normally granted within one (01) year and are valid for ten (10) years from the date of filing (or the priority date if priority is claimed), subject to the payment of annuity fees.
China allows a grace period of six (06) months in limited circumstances.
An industrial design may be protected by a design patent under the Chinese Patent Law.
Design patent applications in China are required to be made to the State Intellectual Property Office (SIPO) and must be made in Chinese.
The types of industrial design applications that can be filed in China include Non-Convention Application and Convention Application.
No opposition procedures are available under the existing Patent Law. For challenging the patentability of a design patent, an invalidation procedure may be initiated.
A design application is limited to one design. However, two or more similar design embodiments may be filed in one application to the extent that they are incorporated into the same class and are sold or used in sets.
Designs in China are in force for ten (10) years from the filing date.
The first annual fee, as well as stamp tax for the design certificate and publication fee, is to be paid at the time of design registration. Further annual fees are to be paid in advance, during the month preceding the anniversary of the filing date. Late payment is possible within a grace period of six (06) months by paying the corresponding surcharge.
The granting period does not usually exceed six (06) months from the filing date.
China is a signatory to the Berne Convention for the Protection of Literary and Artistic Works.
The primary legislation is the Copyright Law of the People’s Republic of China. Other important parts of the legal framework include the Regulations for Implementation of the Copyright Law of the People’s Republic of China, the Regulations on Protection of Information Network Transmission Right, the Regulations on Collective Administration of Copyrights, and the Regulations on the Protection of Computer Software.
Copyright registration is not necessary to obtain copyright protection in China; however, there is a voluntary registration system. Copyright registration in China is administered by the Copyright Protection Centre of China (CPCC).
The period of protection for the moral right of publication and economic rights, or the right to exploit the work for economic gain, is generally fifty (50) years from the date of creation or publication, or in the case of individuals, the term is the lifetime of the author plus fifty (50) years.
The protection period for all other moral rights, such as the right of attribution of authorship, the right of publication of the work to the public, the right to alter the work, and the right to preserve the integrity of the work, is forever.
In the case of cinematographic works, works created by a process analogous to cinematography, or photographic works, the term of protection for the right of publication and the rights is fifty (50) years, expiring on December 31 of the 50th year after the first publication of such work; however, such work shall no longer be protected under this Law if it is not published within fifty (50) years after the completion of its creation.