How Foreign IP Holders Will get Benefitted by the Amendment to the Criminal Law of China

Intellectual Property rights include trademarks, design patents and copyrights. Foreign companies are still at risk from IP ‘hijackers’ – for example, Chinese suppliers that file their foreign client’s IP without their permission. Align your IP strategy with your business strategy. Identify business goals, protectable IP, regional requirements, potential partners and capacity to expand into your target markets. IP rights are important—take the time to identify your IP to determine what can be registered and/or enforced in China as early as possible.

 

In the 24th meeting of the Standing Committee of the 13th National People’s Congress of China voted to pass the “Amendment to the Criminal Law of the People’s Republic of China (11).” This new law will come to effect from the March 1, 2021.  The Criminal Law includes several articles for intellectual property crime and the amendments increase the maximum sentencing term.

 

Section 7.   Infringement of Intellectual Property Rights

 

Article 213.   Using an identical trademark on the same merchandise without permission of its registered owner shall, if the case is of a serious nature, be punished with imprisonment or criminal detention of less than three years, with a fine, or a separately imposed fine; for cases of a more serious nature, with imprisonment of over three years and less than seven years, and with fine.

 

Article 214.   Knowingly selling merchandise under a faked trademark with a relatively large sales volume shall be punished with imprisonment or criminal detention of less than three years, with a fine or a separately imposed fine; in cases involving a large sales volume, with imprisonment of more than three years but less than seven years, and with fine.

 

Article 215.   Forging or manufacturing without authority or selling or manufacturing without authority other’s registered trademarks or identifications shall, for cases of a serious nature, be punished with imprisonment or criminal detention, or restriction for less than three years, with a fine or a separately imposed fine; for cases of a especially serious nature, with imprisonment of over three years and less than seven years, and with fine.

 

Article 216.   Whoever counterfeits other people’s patents, and when the circumstances are serious, is to be sentenced to not more than three years of fixed-term imprisonment, criminal detention, and may in addition or exclusively be sentenced to a fine.

 

In China, a patent right holder can enforce a patent right through judicial route, i.e. people’s court or administrative route, e.g. local IP offices. However, local IP offices’ power to review and duplicate the relevant contracts, invoices, account books and other related materials and to seal or confiscate the products which pass off the patent, as mentioned above, is limited to patent passing‐off cases only.

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