Members of the MARQUES China Team share recent news on statistics, legislative reforms and case law from China. By Mr Xiaoming Liu and Mr Tingxi Huo.
CNIPA’s latest statistics
In 2020, the China National Intellectual Property Administration (CNIPA) examined that there were 8.784 million new national trade mark applications, up by 6.43% over the previous year.
The average duration of examination has been shortened to four months. The duration of registration has been shortened to between seven and eight months. Validly registered trade marks total 30.17 million and there are 6,085 registered geographical indications.
Since 2018, the CNIPA has rejected more than 150,000 trade mark applications filed in bad faith or for hoarding purpose.
Criminal Law amended
On 26 December 2020, the Chinese Congress released the 11th amendment of the Criminal Law, which will come into effect on 1 March 2021. The highlights relating to IP summarized are:
- Under Article 213, trade mark protection has been extended from goods to services. Although the protection covers services, the amendment has further clarified the issue in the law.
- Under Article 213, protection of copyright has been extended to cover copyright-related rights.
- The maximum imprisonment in serious scenarios for the following five crimes has been extended from seven to 10 years:
- Counterfeiting registered trade marks;
- Selling goods bearing counterfeit registered trade marks;
- Illegally manufacturing or selling illegally manufactured identifications of registered trade marks;
- Crime of infringement on copyright; and
- Crime of infringement on trade secrets.
- However, surveillance and detention, namely the freedom-limiting penalty that is lighter than imprisonment, has been abolished.
In general, the penalty has become heavier. We expect that the amendment will be more of a deterrent to the infringers and can better protect legitimate IP rights in China.
LEGO copyright case
|SPC updates 18 interpretations
In 2020, the Chinese Congress made the first Civil Code and amended the Patent Law. In 2019, the Trademark Law was amended. In 2018, the Chinese Trademark Office and Chinese Patent Office merged and formed the current China National Intellectual Property Administration (CNIPA).
The Civil Procedural Law and the Administrative Procedural Law were also amended in recent years.
Accordingly, the Supreme People’s Court (SPC) decided on 23 December 2020 to amend its 18 judicial IP interpretations to keep up with the developments.
On 29 December 2020, the Shanghai High People’s Court upheld the first-instance court’s ruling that the prime culprit infringing Lego’s copyright should be imprisoned for six years and fined CNY90 million. Another eight accessary criminals were sentenced to imprisonment ranging from three years to four years and 10 months, with fines ranging from CNY0.2 million to CNY4.5 million.
The criminals were found out to have copied Lego’s 663 copyrighted toys, with an illegal turnover of more than CNY330 million and unsold stock of CNY30 million. As Denmark and China are both members of the Berne Convention for the Protection of Literary and Artistic Works, China is obliged to protect Lego’s copyright.
Had the infringement happened after 1 March 2021 when the newly amended Criminal Law comes into effect, the imprisonment and fines could be heavier. However, the fine was not awarded to Lego. If it wishes, Lego is entitled to file a civil lawsuit to claim damages.
By Xiaoming Liu and Tingxi Huo, of Chofn IP, China. Find more resources about China on the China Team page