Intellectual property protection is a basic means to stimulate innovation, a basic guarantee for the motive force of innovation, and a core element of international competitiveness. The judicial work in relation to IPRs of the people's courts, which is related to the implementation of the innovation-driven development strategy, related to the economic, social and cultural development and prosperity, and related to the two overall situations home and abroad, is of a great significance to the building of a country with powerful intellectual property and great power of science and technology in the world. In order to deepen the implementation of the innovation-driven development strategy and the national intellectual property strategy, strengthen the creation, protection and application of intellectual property, crack down the institutional and mechanism-related obstacles that restrict the development of judicial protection of intellectual property rights, and bring in full play the function and effect of the judicial protection of intellectual property rights in stimulating and protecting innovation, promoting scientific and technological progress and social development, the following opinions are raised:
I. Overall requirements
(i) Guiding ideology
By comprehensively implementing the spirit of the 19th CPC National Congress with the Xi Jinping Thought on Socialism with Chinese characteristics for a new era as a guidance, firmly establishing the “four consciousness”, pushing forward the overall layout of “five in one” and coordinately enhancing the strategic layout requirements of “four Comprehensives” and closely centering around the goal of “making the people feel fair and just in every judicial case”, we shall uphold the principles of justice for people and judicial justice, gradually deepen the reform in hearing IP cases, bring in full play the leading role of judicial protection of intellectual property, establish such a concept that to protect intellectual property is to protect innovation, optimize the environment of ruling by law for scientific and technological innovation, and promote the implementation of the innovation-driven development strategy, in order to provide a firm judicial support for the realization of the “two centennial goals” and the building of country with powerful intellectual property and great power of science and technology in the world.
(ii) Basic principles
- Adhering to overall positioning. By viewing from the national strategic level, closely centering around the development situations of the party and the country, and actively adapting to the new changes in the international situation, we shall strengthen the top-level design of the overall, institutional and fundamental issues concerning the long-term development of judicial protection of intellectual property rights, and reform and improve the IP judicial protection system and institution.
- Adhering to a problem-oriented principle. In the light of the judicial needs of the people, we shall study countermeasures and set out to address difficult problems and shore up areas of weakness, with regard to the key areas and weak links affecting and constraining the development of judicial protection of intellectual property rights, and further promote the IP judicial protection level.
- Adhering to reform and innovation. We shall emancipate the mind and seek truth from facts, follow the law of judicial work, stimulate innovation in innovative manners, protect innovation in innovative manners, and resolve problems and difficulties confronted in IP judicial reform in a reformed thinking, so as to let the reform and innovation become a power source for sustainable and healthy development of IP judicial protection.
- Adhering to an open development principle. By both basing on our national conditions and respecting the international rules, and learning the successful experience in the international judicial protection of intellectual property rights, we shall actively construct a new model of judicial protection of intellectual property rights with Chinese characteristics, and continuously enhance our leadership in the rules of international governance of intellectual property rights.
(iii) Reform objectives
With the perfection of the IP litigation system as a basis, the reinforcement of the IP court system construction as a focus, and the enhancing of the IP trial team buildup as a guarantee, we shall constantly improve the quality and efficiency of hearing IP cases, enhance the judicial protection of intellectual property rights, effectively restrain the acts of infringement on intellectual property rights, further promote the judicial credibility and international influence in the field of intellectual property, and accelerate the progress of modernization of the judicial system and the judicial capability in relation to IP cases.
II. Improving the IP litigation system
(i) Establishing rules of evidence in litigation conforming to the characteristics of intellectual property cases
According to the intangible, temporal and geographical characteristics of intellectual property, we shall perfect the evidence preservation system, bring in play the role of an expert assistant, properly enhance the investigation and evidence collection of the people’s courts to the authority, and establish a litigation mechanism of stimulating the parties concerned to positively and actively proffer evidence. We shall bring in full play the role of notarization in fixing evidence in intellectual property cases in multiple manners. We shall reinforce the construction of a litigation credit system in the field of intellectual property, explore to establish rules of evidence discovery and of exclusion of evidence obstruction, reasonably allocate the burden of proof, appropriately mitigate the burden of proof on a right holder, and set out to crack down the problem of “hard proof” for the holders of intellectual property rights.
(ii) Establishing an infringement compensation system that reflects the value of intellectual property
1. Adhering to such a value orientation that intellectual property creates values and right holders shall enjoy interest returns. We shall bring in full play the role of social organizations and intermediate agencies in the value assessment of intellectual property, establish a judicial determination mechanism of infringement damages with the respect of intellectual property and the encouragement of innovative application as a guidance, with the realization of the market value of intellectual property as a guideline, and with compensation as a primary tool and punishment as an auxiliary tool, and set out to crack down the problem of “low compensation” in IP infringement lawsuits.
2. Enhancing the punishment of illegal acts of IP infringement and reducing the costs in safeguarding rights. Where there are circumstances of repeated infringements, malicious infringement and other serious infringement circumstances, we shall effectively restrain and deter the IP infringement acts by enhancing the compensation according to law, raising the compensation amount, and asking the losing party to afford the costs for safeguarding rights, so as to make the infringers to pay a heavy price. We shall work hard to create a legal atmosphere in which there is no courage or intention to perform infringement, so as to realize a historic conversion to strong protection of intellectual property rights.
(iii) Promoting reform of adjudication manners conforming to the law of IP litigation
We shall further bring in play the leading role of judicial protection of intellectual property rights, strengthen the judicial review of IP administrative acts in accordance with law, and promote the consistency between the standards of administrative enforcement and the standards of judicial protection in relation to intellectual property rights. We shall strengthen the research and application of judicial big data, perfect the IP case guidance system, improve the adjudication manners, promote the shunting of complicated and simple IP cases, practically enhance the convenience and timeliness of IP judicial remedy, and set out to crack down the problem of “long cycle” in hearing IP cases.
III. Strengthening the construction of intellectual property court system
(i) Establishing and perfecting the specialized IP court system
1. In accordance with the requirements of the “Outline of National Intellectual Property Strategy”, by seriously summarizing the basic rules and experience of IP cases, reinforcing the analysis of current situations as well as the research and judgment of international trends, from the strategic height of building a country with powerful intellectual property and great power of science and technology in the world, we shall study to establish a national level IP case appeals hearing mechanism, to effectuate specialized hearing, centralized jurisdiction, intensive procedure and professionalization of staffs of related IP cases, and radically solve the institutional difficulties restraining scientific and technological innovation such as the inconsistent judgment scales of intellectual property cases and the complex litigation procedures.
2. By comprehensively summarizing the experience in setting, running, building and developing Beijing, Shanghai and Guangzhou IP courts, we shall set forth measures that can be replicated and promoted, and implement them in accordance with legal procedures. We shall further improve the specialized court system conforming to the law of IP judicial protection, and effectively satisfy the judicial needs of scientific and technological innovation for specialized hearing of intellectual property rights.
(ii) Exploring the off-site hearing mechanism of trans-regional IP cases
By adequately integrating the superior judicial resources of the Beijing-Tianjin-Hebei courts, and exploring a centralized jurisdiction of technical IP cases in the Beijing-Tianjin-Hebei areas by Beijing Intellectual Property Court, we shall adequately bring in play a unique role of specialized hearing of intellectual property cases in the aspect of promoting the innovation-driven development of Beijing-Tianjin-Hebei, and provide a firm judicial support for Beijing-Tianjin-Hebei to form a coordinated innovation community, and realize economic transformation and scientific development.
(iii) Improving the human, finance and material support system of IP courts
1. We shall establish a dynamic adjustment mechanism of judges of the IP courts by combining classified management, target training, tracking assessment and timely adjustment. We shall dynamically adjust the number of judges, resolve unbalance between judges and cases and enhance the judicial efficiency according to the accepted amount, the growth trend and the difficulty of the cases.
2. We shall perfect the funding support mechanism, identify the basis for the IP courts to purchase social services and promote standardization of the financial work of the IP courts according to the affiliation relation and operational practices of the IP courts.
IV. Strengthening the buildup of the IP trial team
(i) Enhancing the training and selection of IP trial talents
1. On the premise of maintaining a stable IP trial team, we shall establish diversified forms of personnel exchange mechanisms among IP courts, among specialized IP trial institutions, and among superior and inferior courts, and make plans to select and assign IP judges having a high comprehensive quality, an outstanding expertise, and training potential to hold a position or take a temporary post in relevant party or government organs. We may openly select IP judges from legislators, lawyers and law experts, and further stimulate the positivity, activity and creativity of the IP trial team.
2. By enhancing the pertinence and effectiveness of the training, improving the ideological and political qualities, professional buildup and expertise level of the IP trial team, and strengthening foreign exchanges and cooperation, we shall strive to create a group of IP trail talents with a firm political stance, a perspective of the overall situation, proficiency in law, acquaintance in technology and a global outlook.
(ii) Strengthening the construction of technical investigator team
By exploring to select and manage technical investigators according to a manner such as appointment, refining the selection conditions, the appointment types, the duty scopes, the management modes and the training mechanisms, and standardize the admissibility examination of technical investigation comments, we shall adequately bring in play a positive role of a technical investigator in effectively ascertaining technical facts and improving the IP trial quality and efficiency, and reinforcing the neutrality, objectivity and scientificity in determining technical facts.
V. Strengthening the organizational leadership
(i) Reinforcing organization and implementation
The relevant regions and departments shall attach great importance to the IP judicial work of people's courts, and take it as an important content for promoting comprehensively deepening of the reform, comprehensively administering of the country according to law and thoroughly implementation of the innovation-driven development strategy and national intellectual property strategy, so as to practically reinforce the organizational leadership. We shall formulate implementation regulations in no time, identify the departments of responsibility, determine the schedule and route chart, and ensure that various operational requirements are timely and effectively put into practice.
(ii) Strengthening the operational support
The relevant regions and departments shall seriously implement the requirements of the CPC Central Committee on bringing in full play the leading role of IP judicial protection, make an overall coordination and allocation of the existing judicial resources of the people’s courts and relevant trial forces, provide a favorable support and backup for the IP judicial work of the people’s courts in the aspects of funding support and material equipment, and vigorously promote a standardized, specialized, professional and international buildup of the IP trial team.
(iii) Improving the relevant laws and regulations
We shall positively promote the revision work of the relevant laws such as the Law on the Organization of the People's Courts, the Patent Law, the Copyright Law and the related Procedural Laws, study and formulate the special procedure law that conforms to the law of trial of IP cases, and strengthen the legalization and institutionalization of specialized trial organizations, litigation jurisdictions, evidence rules, trial procedures and adjudication manners of IP case
On February 1, 2010, the State Intellectual Property Office released the updated Electronic Patent Filing System (hereafter "EPFS"). The new version provides the applicants and agencies with more conveniences than before. CCPIT Patent and Trademark Law Office has already equipped with the technical and procedural conditions to submit patent applications electronically and has successfully filed some patent applications via EPFS since July 1, 2010. This marks that CCPIT has been qualified to provide the applicants with a quicker and easier way of submission of patent applications electronically.
Disgruntled with ruling by the Trademark Review and Adjudication Board (TRAB) under the State Administration for Industry and Commerce (SAIC) over registration of the their car model of A3, A4, A5, A6 as trademark, Audi sought legal remedy to reverse the decision before the Beijing No.1 Intermediate People’s Court. The court recently handed Audi another defeat. Trademark office under SAIC and TRAB also rejected Audi’s application of TT and Q7 as trademarks in class 12 and application of letters and numbers such as S3, S4 as trademarks in the similar commodities by territory extension of PCT.
The court held that characters such as A4 and A8 is constituted by common letters and numbers without special form of expression, which stand for Audi car model only and made the marks devoid of distinctiveness as a whole, so they can not be granted as trademarks. The trademark office and TRAB held the same reason of the rejection.
(Source: China Intellectual Property News)
With most applications globally, China looks to deter malicious filings
New standards of proof for ownership and a ban on malicious registration will be included in the next draft of China's trademark law, which has been under discussion, according to a senior government official.
Copying registered trademarks and applying to use the marks on other types of goods will also be illegal, Li Jianchang, chief of the trademark department of the State Administration of Industry and Commerce (SAIC), told China Daily.
Under current legal system, only well-known trademarks are eligible for protection beyond their specific industry. Well-known trademarks are the most vulnerable to counterfeit attack and have long been a priority worldwide.
"Since China joined the Paris Convention in 1985 and the World Trade Organization in 2001, our trademark system is in accordance with international practice," Li noted. "We fulfilled the promises we pledged to the WTO and provide like protection to both domestic and foreign well-known trademark holders."
Compared with most countries where only the courts settle issues surrounding infringement, China has a double mechanism that combines the judicial system and administrative departments in industry, commerce and customs, Li said.
Various levels of administration are also legally authorized to initiate investigations into suspected trademark violations.
The authorities' efforts also include regular visits to companies to gauge their needs in trademark protection, offering consultancy services for corporate brand-building and crackdowns on counterfeits, Li said.
To date, 112 foreign trademarks from 15 countries and regions have been recognized as well-known trademarks in China, accounting for 6 percent of the nation's total. Illustrating the appeal of its market, China is among the most popular nations for foreign trademark applicants, Li cited World Intellectual Property Organization Director Francis Gurry saying.
Increased protection of intellectual property and an improved investment environment have also contributed to boosting overseas business confidence in China, Li added.
Trademark applications by foreign-funded companies increased nearly 2 percent to about 6,600 in the first half of this year, bringing the total to some 148,000.
More than 490,000 applications from both home and abroad have been filed in China in the same period, a 35 percent year-on-year increase.
(Source: China Daily