IP enforcement in China
By Angela Searle.
The recent establishment of three specialised Intellectual Property courts in China means New Zealand companies now have enforceable protection of IP, making investment into this market more attractive.
China is an extremely important trading partner, with New Zealand exports rivalling our traditional largest export market, Australia. For many companies when exporting products to China, it is vitally important to have the company's intellectual property (IP) secure. Investors and distributors are unlikely to invest in a product/service without secure protection. But, if a company is going to invest significant capital in obtaining IP in China, it also wants to know that such IP can be enforced, efficiently and achieving the correct legal result.
Until August last year, sufficient protection was not in place.
The Chinese authorities recognised that having high quality intellectual property enforcement was important to encourage investment by overseas companies in China. Consequently, the Standing Committee of the National Party’s Congress decided to establish specialised IP courts in Beijing, Shanghai and Guangzhou. These centres were chosen as they have the most experienced IP judges. These judges will be assisted by technical investigation officers, as needed.
For New Zealand companies already or wishing to export their products or services to China, the establishment of these specialist IP Courts will make them more confident that their investment in IP protection in China is secure and will assist the growth of their companies. Of course, this is not just an issue for New Zealand companies exporting to China. More and more global companies also have a presence in China.
These three courts will be responsible for all first instance IP cases related to technical matters including invention, utility and design patents, plant variety protection rights, layout designs of integrated circuits, ownership of technical secrets and copyright for computer software.
Local courts, either Basic People’s Courts or Intermediate People’s Courts (depending on the circumstances), will have original jurisdiction over most non-technical IP cases (eg trade mark and non-technical copyright infringement cases). Appeals of such non-technical cases would then go to the specialist IP court. An appeal against a decision of the IP Courts will go to the High People’s Courts in Beijing, Guangzhou and Shanghai in keeping with the existing systemic approach.
The Beijing IP Court has more than 25 judges, including the eminent jurist Su Chi as its Head Judge. Since entering into operation in November 2014, the court has already accepted more than 200 cases. This large number is due to this court having exclusive jurisdiction over cases involving review of the Trade Marks Review and Adjudication Board and Patent Review Board.
The Guangzhou Court started accepting cases in December 2014 and at least 10 judges have been appointed, including its president Yang Zongren. Its jurisdiction will extend to all of the Guangdong Province.
Twelve judges have been appointed to the Shanghai Court including its president Wu Xielin. It also opened in December 2014. This court has original jurisdiction over IP-related anti-monopoly civil cases as well as the types of cases specified in the Supreme People’s Court regulations.
Angela Searle is a partner at Baldwins Intellectual Property and has over 20 years experience in assisting companies protect their trade marks and consequently, their goodwill. Visit www.baldwins.com