IP protection in China

You can register intellectual property (IP) in China for trade marks, patents, designs and copyright.

Patents, trade marks and copyright protection in China is administered by separate government bodies.

In general terms, the process of registering IP rights in China is slower and more expensive than in Australia. Unless you have a residential or business address in China, applications must be filed through Chinese agents or attorneys.

Documents filed with the State Intellectual Property Office of China or the Chinese Trade Mark Office need to be submitted in Chinese, therefore translation fees should be factored into the total cost of applications.

Administration and enforcement of IP laws in China is quite different to Australia, and enforcement of IP rights is available through both administrative and judicial avenues.

IP protection remains a challenge in China, where misappropriation of trade secrets and other forms of IP is commonplace. It is strongly recommended that Australian businesses have in place formal legal protection of IP rights well before entering the Chinese market.

Trade marks

The State Administration of Industry and Commerce is responsible for administering trade marks, which are registered through the China Trade Mark Office.
China follows a "first-to-file" rule for obtaining trade mark rights. This means that the first person to file a trade mark application will generally have priority over a prior user of the mark in China. It is advisable to file trade mark applications in China as soon as possible.
Three-dimensional shapes and colour combinations can be protected as trade marks in China. Other non-traditional marks such as sounds and smells are not yet registrable, although extending protection to these marks is currently being considered.
Enforcement of a trade mark without registration is possible, although the process tends to be more expensive and less predictable.
Since 2004, Customs Recordation of IP Rights has offered cross-border measures to protect IP rights.
Trade mark registrations may be removed from the register if they are not used for three or more consecutive years after registration.

Patents

The State Intellectual Property Office is responsible for administering patents, which are registered through the Chinese Patent Office.
Two forms of patent protection are available in China: invention patents (equivalent to Australian standard patents, with a term of 20 years) and utility models (for lower level inventions, with a term of 10 years). Inventors may apply for both patents for the same invention.
The patent examination process in China tends to be longer than in Australia.
Certain types of subject matter are not patentable in China.

Designs

In China, designs are registered through the Chinese Patent Office. Protection is available for a 10-year period. Known as design patents, they do not undergo substantive examination and can be obtained relatively quickly.

Copyright

Unlike Australia, it is possible to register copyright in China. The National Copyright Administration Office is responsible for administration of copyright.

Trade Secrets

Unique names, packaging, and ornamentation of well-known goods are protected under the Anti-unfair Competition Law and the Anti-Trust Law.

Plant varieties

Plant varieties are protected in China for a period of 15 or 20 years, depending upon the type of the plant.

Technologies

Since October 1, 2009 China has placed restrictions on the cross-border transfer of certain technologies.

Professional advice

If you are considering exporting to China, it is recommended that you contact a Chinese attorney to advise on local IP, customs and other laws regulating imports and trade in China.

This information has been developed in conjunction with Griffith Hack Lawyers and Liu, Shen & Associates (China).