CRIMINAL ENFORCEMENT OF IP JURISDICTION REPORT: CHINA
Stephen Yang Peksung
On January 11, 2011, the Supreme People’s Court, the Supreme People’s Procuratorate and the Ministry of Public Security released opinions on the handling of criminal cases involving infringement of intellectual property rights.
Te 16-article opinions aim at solving new issues faced by the police, the people’s court and the people’s procuratorate in handling criminal cases of intellectual property infringement and set explicit provisions on the application of laws. First of all, the opinions address issues of jurisdiction in criminal cases of IPR infringement by stipulating the provisions on determination of the place of crime, disputes over jurisdiction and consolidated jurisdictions. Secondly, the opinions clarify issues related to the effect of evidence collected by administrative enforcement authorities in handling criminal cases of IPR infringement. Tirdly, they set provisions on obtaining sample evidence and entrust evaluation in handling criminal cases of IPR infringement. Fourthly, the opinions further touch on issues related to collecting evidence by the people’s court upon request of the plaintiff when no public prosecutor is involved. Moreover, they clarify issues in determining an ‘identical product’ and a ‘trademark identical with the registered trademark’ in criminal trademark infringement cases, and conviction and punishment issues such as calculation of amount of illegal gain and determination of an attempted crime.
Additionally, the opinions clarify issues related to the determination of ‘for the purpose of making profits’, ‘without permission of copyright owner’ and ‘distribution’ in the crime of copyright infringement, and stipulate the standard of conviction and punishment against the act of disseminating infringing works through information networks. Finally, they address issues related to the punishment of the crime of IP infringement, such as calculation of the cumulative amount in case of multiple IP infringements, accomplices and occurrences of crime.
Te implementation of the opinions is of great importance to improve the level of criminal judicial protection of IP in China, promoting special campaigns of combating IPR infringement and counterfeits, and protecting a fair and orderly market environment.
1 million patent filings
In 2010, patent applications filed in China numbered 1.2 million, exceeding the 1 million mark for the first time, and 815,000 patents were granted, representing an increase of 25.2 percent and 40 percent respectively. Te number of PCT international applications filed in China in 2010 was 13,000, representing an increase of 61.3 percent on 2009.
44 World Intellectual Property Review March/April 2011
“ IN 2010, CHINA RECEIVED 391,000 INVENTION APPLICATIONS, A 24.1 PERCENT INCREASE ON THE PREVIOUS YEAR, AMONG WHICH 293,000 WERE FROM DOMESTIC APPLICANTS INCLUDING HONG KONG, MACAO AND TAIWAN.”
In 2010, China received 391,000 invention applications, a 24.1 percent increase on the previous year, among which 293,000 were from domestic applicants including Hong Kong, Macao and Taiwan. Invention applications from domestic applicants account for 74.9 percent of the total and increased by 27.9 percent. Invention applications from foreign applicants numbered 98,000, accounting for 25.1 percent of the whole—an increase of 15.3 percent.
1.07 million trademark applications
In 2010, trademark applications for registration reached 1.07 million. By the end of 2010, there had been a cumulative 8.29 million trademark applications, 5.62 million registered trademarks and 4.6 million valid registered trademarks: all ranked highest in the world.
So far, China has received a cumulative 154,000 international registrations through the Madrid system, ranking the top place in the world for six consecutive years. Chinese applicants have used the Madrid system to file, via the Chinese Trademark Office, 11,415 international trademark applications for registration, ranking top among developing countries.
Stephen Yang is a partner at Peksung Intellectual Property Ltd. He can be contacted at:
yyong@peksung.com
www.worldipreview.com
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