The China (Shanghai) Pilot Free Trade Zone (the “FTZ) officially launched on September 29, 2013, marking the commencement of the exploration phase for the liberalization of six sectors: financial services, shipping services, commercial and trade services, professional services, cultural services and social services, thereby unveiling a “second reform and liberalization for the transformation of China”. The establishment of the free trade zone aims to nurture China’s new advantages in response to global competition, to construct a new platform for cooperation with other countries for development, and to explore new arenas for economic growth. This article provides a preliminary discussion of the establishment of IPR enforcement mechanisms in the FTZ.
- Status Quo and Issues in Chinese IPR Administrative Enforcement
Intellectual property rights are private rights of a public nature. A dual-track system has been applied to China’s IPR protection utilizing both judicial and administrative approaches. Although administrative IPR enforcement is regarded as one of the features of China’s IPR protection regime, problems relating to current Chinese IPR administrative enforcement still linger, as described below:
- IPR Enforcement System Fragmentation Resulting in Excessively Decentralized Enforcement Authority
Under the general framework of China’s IPR administrative enforcement, the management of patent authorization, trademark registration and copyright registration is separate. Administrative management and enforcement are integrated but stand individually as an independent system. A number of government bureaus are involved in IPR administrative enforcement. Administrative enforcement of IRP rights involves many government ministries such as public security, commerce, culture, agriculture, forestry, customs, industry and commerce and quality control, performing activities that are intimately involved with intellectual property rights. Every ministry has its own law enforcement team. Although these teams are small in size and personnel, their functions are quite comprehensive. However, some problems have arisen in this system -- lack of unified policies, overlapping law enforcement, decentralized management, conflicting rules and regulations, and differing law enforcement standards. A fragmented IPR administrative management system is detrimental to the image of the government and the dignity of the law, and frustrates market participants when they seek protection under laws and policies.
- A Decentralized Local IPR Management Structure Impairs Law Enforcement Authority
As far as vertical IPR management is concerned, a combination model exploiting centralized, unified government leadership and autonomous local management has been adopted. However, there still isn’t a unified standard in place for the establishment of local IPR bureaus; moreover, regional development is imbalanced. Under PRC law, patent authorization, trademark registration and copyright registration are subject to the centralized and unified management of the national government, while government entities at the provincial and municipal levels are responsible for administrative law enforcement. Oftentimes the establishment of local IPR bureaus depends not on the existing IPR regime but rather on how much attention the local government pays to IPR, resulting in a variety of coexisting models for the establishment of IPR bureaus. Such disparities reflect the different levels of importance local governments place on IPR and leads to divergent functions of local IPR administrative bureaus. Consequently, implementation in different regions differs dramatically, resulting in obstacles to communication between different regions during coordinated law enforcement initiatives.
- The Authority of IPR Administrative Enforcement Bureaus is Variable and the Development of Law Enforcement Resources is Unbalanced
At present, administrative law enforcement for patent and copyright cases has lagged behind enforcement for trademark cases both in terms of number of cases accepted and size of the enforcement teams. This situation can be attributed to the following factors: (i) the underdevelopment of patent law enforcement prerequisites such as the establishment of patent management institution s, team building, technical facilities, transport vehicles and communication tools; (ii) lack of authority by patent management bureaus to impose administrative penalties for patent infringement other than patent counterfeiting such that infringers do not receive the punishment they deserve and consequently repeat their offenses; and (iii) the impracticality of administrative law enforcement methods and procedures.
- FTZ Institutional Innovations in IPR Administrative Enforcement
Since the launch of the FTZ, “magnet effects” brought about by institutional innovations have emerged, as evidenced by an increasing number of enterprises, burgeoning market vitality and mounting international investment and trade transactions. Along with this, the number and types of IPR disputes has inevitably multiplied. New areas, new models, new types of business operation and modified laws and regulations are bound to give rise to new legal issues as well as new and complex cases that are unique to the FTZ.
To ensure that IPR enforcement adapts to the new situation in the FTZ and to overcome existing institutional defects arising from fragmented administrative law enforcement, the State Council specified in its Overall Plan for the China (Shanghai) Pilot Free Trade Zone that, “…Reform of the administrative management system shall be intensified. The Pilot Zone shall construct a collective and uniform market regulation system and a comprehensive law enforcement system to achieve efficient regulation of quality and technical supervision, food and drug administration, intellectual property rights and industrial and commercial taxation, and shall actively encourage social forces to participate in market supervision.”
The Shanghai Municipal Government enacted the Administrative Measures for the China (Shanghai) Pilot Free Trade Zone (hereinafter referred to as the "Measures") on September 22, 2013. The Measures are local regulations formulated in accordance with the State Council’s Overall Plan, and they contain the following provisions concerning IPR administrative enforcement and protection in the FTZ:
Article 4 provides that Shanghai must set up a China (Shanghai) Free Trade Zone Management Committee (hereinafter referred to as the "Management Committee"). The Management Committee, dispatched by the Shanghai Municipal Government, will be responsible for reform of the Pilot Free Trade Zone as well as overall planning for the management and coordination of administrative affairs, including IPR-related administrative management.
Article 5 provides the functions, including IPR-related matters that the Management Committee must fulfill in the FTZ. These responsibilities specifically include initial approval of submissions from patent agencies and the issuance of patent advertising certification, registration of overseas book publication contracts, registration of licensing contracts granting copyrights for overseas audiovisual products, the recording of imported books printed in Shanghai, and other administrative matters entrusted by the intellectual property management bureau. Meanwhile, the Management Committee will be responsible for administrative mediation and the handling of patent disputes in the FTZ.
Article 6 provides that the Management Committee’s comprehensive law enforcement bureau must carry out intellectual property management in accordance with the law, including the centralized exercise of administrative penalty rights, administrative compulsory measures and administrative inspection rights in relation to the administrative penalty rights that were previously exercised by Shanghai agencies in charge of IPR matters.
Article 8 provides that Customs, the Administration for Industry and Commerce, the quality supervision agency, the public security bureau and other agencies must establish administrative offices in the FTZ to supervise and administrate IPR customs protection, geographical indicators and trademarks according to the law.
Article 31 of the Measures provides that the FTZ must encourage and support professional institutions to provide services such as IPR mediation, safeguarding of legal rights and the provision of assistance for intellectual property protection. Article 37 further provides that the arbitration center of Shanghai Municipality must improve its arbitration rules, and enhance the professionalization and internationalization of the arbitration of commercial affairs in the FTZ in accordance with applicable law. The FTZ must also adopt various methods, such as mediation and arbitration, to solve IPR-related disputes in the FTZ.
We can infer from the foregoing that IPR administrative enforcement in the FTZ will be characterized as follows:
- The FTZ will establish a Management Committee-centered comprehensive and centralized law enforcement system. The Management Committee must implement centralized law enforcement functions within the FTZ with respect to patents and copyrights, and must exercise the right to impose administrative penalties, administrative compulsory measures and administrative inspections. The negative influence of a fragmented IPR management and law enforcement model is expected to be alleviated; and the current situation, characterized by too many law enforcement bureaus and inconsistent standards, can be improved to some extent
- The AIC will continue to enjoy independent administrative law enforcement authority over trademark and unfair competition cases; however, the existing Bonded Area Comprehensive AIC Branch in the FTZ will be renamed the FTZ Branch.
- Customs, public security and other bureaus will station themselves or establish offices in the FTZ to exercise regulatory and administrative duties in the FTZ in accordance with the law.
- The FTA will explore the establishment of a centralized and unified market supervision and law enforcement system to strengthen inter-bureau coordination, to further clarify the functions and cooperation mechanisms of the regulatory bureaus, and to enhance supervision and regulatory efficiency for the purpose of building a coordinated, open, fair, honest and orderly competitive market environment for the FTZ.
- Legal Analysis of the Administrative Law Enforcement Authority of the FTZ Management Committee
As mentioned previously, the Overall Plan approved by the State Council has for the first time proposed that the FTZ build a collective and uniform market regulation system and a comprehensive law enforcement system. The Shanghai Municipal Government subsequently formatted the Measures in accordance with the Overall Plan, specifying that the Management Committee dispatched by Shanghai Municipal Government must fulfill duties such as comprehensive administrative law enforcement within the FTZ in connection with patents and copyrights. Does the Management Committee enjoy the capacity of an independent administrative entity because it was established under the Measures? Is there a specific legal basis for the Management Committee to exercise law enforcement authority over patents and copyrights? Does the Management Committee’s administrative law enforcement under the municipal government’s regulations constitute administrative authorization or administrative delegation? Taking both the rule of law and the encouragement of innovation into account when creating a new situation in the course of reform and opening-up renders these questions particularly worthy of reflection and discussion.
- An Analysis of the Political Status of the Newly-Established Management Committee
Article 4 of the Measures provides that the Management Committee is an agency dispatched by the Shanghai Municipal Government to implement reform tasks in the FTZ and to coordinate and manage certain administrative affairs, including those involving intellectual property rights. The dispatched agency is a branch or representative agency established by the state administrative authority in a particular area. “Government-dispatched agency” refers to a representative agency established and authorized by the government or government bureaus to fulfill certain administrative functions in a certain area or within a particular organization. In light of this, as a newly dispatched agency does the Management Committee enjoy the legal capacity of an independent administrative body?
The Management Committee was established in accordance with the Administrative Measures for the China (Shanghai) Pilot Free Trade Zone, an organization based on local administrative regulations rather than on the Constitution or the Organization Law. Because of this, it is not considered an independent administrative body. In the course of fulfilling specific management duties, however, the Management Committee may acquire independent administrative body capacity if it is explicitly authorized by law with respect to a specific matter. So far the National People’s Congress and its Standing Committee have not passed any statute or regulation so authorizing the Shanghai Municipal Government or the Management Committee. For this reason, currently the Management Committee is merely an agency of the Shanghai Municipal Government, without independent administrative entity capacity.
- An Analysis of the Legality of the Management Committee’s Administrative Law Enforcement Rights
The legal basis of administrative authority generally includes: (i) the administrative body’s inherent authority under the Constitution and the Organization Law; and (ii) the authority with which the administrative body is endowed by other laws and regulations. Of these two sources of authority, the former is the basic authority possessed by an administrative body due to the fact that it was established pursuant to the Constitution or the Organization Law, with its primary authority granted upon its establishment; in other words, inherent authority. The authority of the People’s Government at all levels prescribed by the Constitution and the Organization Law is a typical example of inherent authority. In addition to the inherent authority of an administrative body, laws and regulations other than the Constitution or the Organization Law might also grant authority to an administrative body. This authority, however, is acquired rather than inherent, because it did not originate from the Constitution or the Organization Law.
The Measures of the Shanghai government provided that the Management Committee is responsible for the overall administrative management of IPR-related issues, including the lawful enforcement of administrative penalties, administrative compulsory measures and administrative inspections in relation to administrative penalty rights that were previously exercised by the municipal IPR administration authority against illegal acts connected to copyrights and patents. In light of this, do the Overall Plan approved by the State Council and the Measures issued by the Shanghai municipal government constitute a legal basis for the Management Committee to exercise IPR administrative law enforcement authority?
- The Overall Plan and the Measures are not Statutes or Regulations, thus does not Constitute Legal Bases
In accordance with the PRC Legislation Law and the Regulations on the Procedures for the Formulation of Administrative Regulations, legal procedures including project establishment, drafting, examination, decision and promulgation, should be undertaken to formulate administrative regulations. In addition, legislative principles and the provisions of the Constitution and the law must be observed. Administrative regulations should be called “ordinances”, “regulations” or “measures”, etc. Moreover, administrative regulations must be executed by the Premier and released by the State Council for implementation.
Nevertheless, the Overall Plan for the China (Shanghai) Pilot Free Trade Zone has not undergone the preceding legal procedures of project establishment, drafting, examination, decision and promulgation. On the contrary, it was passed at an executive meeting of the State Council and issued by the State Council in official document Guo Fa  No. 38 without being submitted to Premier Li Keqiang for signature or released for implementation in the form of an order by the State Council. Hence, the Overall Plan is an administrative regulatory document approved by the State Council, rather than an administrative regulation formulated by the State Council. From the perspective of the issuance and formulation of regulatory documents, the Overall Plan can be categorized as regulations at the bureau or municipal level. From the perspective of the legal effect of the regulatory document however, the Overall Plan took effect upon approval by the State Council. Accordingly, its legal authority is weightier than that of ordinary bureau or municipal regulations .
The Administrative Measures of the China (Shanghai) Pilot Free Trade Zone enacted by the Shanghai Municipal Government were formulated in accordance with the State Council’s Overall Plan, and announced for implementation as an Order of the Shanghai Municipal People's Government No.7 after being passed at the executive meeting of the Shanghai municipal government and signed by Mayor Yang Xiong. Consequently, the Measures are administrative regulations formulated by the Shanghai municipal government.
The Overall Plan and the Measures are an administrative regulatory document and administrative regulations of local government, respectively and do not function as statutes or regulations. As the basis for the establishment of the FTZ Management Committee and the authorization of IPR administrative law enforcement authority, they both contain certain formal legal defects.
- The National People’s Congress and the Standing Committee Did not Authorize the Modification of Statutes and Regulations
Currently the Standing Committee of the National People’s Congress has temporarily modified the implementation of the provisions of the Wholly Foreign-owned Enterprise Law", the Sino-Foreign Equity Joint Venture Law and the Sino-Foreign Cooperative Joint Venture Law with respect to administrative examination and approval procedures, while IPR provisions remain unaffected.
The Patent Law expressly provides that the Patent Administration Bureaus are responsible for the implementation of administrative law enforcement for purposes of patent protection. Patent administration bureaus refer to functional bureaus of local governments that are in charge of work-related patents. The Implementing Rules of the Patent Law further provide that patent administration bureaus are the bureaus responsible for administrative work on patent affairs established by the government of any province, autonomous region or municipality directly under the central government; or by the government of any city that consists of districts, has a large amount of patent administration work to attend to, and has the ability to deal with such administrative work. In Shanghai this role was taken by the Intellectual Property Administration. The PRC Copyright Law has similar provisions regarding copyright administration protection bureaus, i.e. the local Copyright Administration.
Since the Management Committee is not a functional bureau of the Shanghai Municipal Government, it is questionable whether it can serve the functions previously undertaken by the Intellectual Property Administration and the Copyright Administration. No matter what, the transfer of authority from one legally authorized bureau to another bureau is beyond the authority of local regulatory bodies. Thus, the administrative enforcement authority that the Management Committee acquired under the Measures might conflict with statutes established by higher authorities.
- Analysis of the Management Committee’s Administrative Law Enforcement Model
If the basis of the Management Committee’s law enforcement authority is legal and sufficient, should such an enforcement model be characterized as administrative authorization or administrative entrustment?
- Analysis of the Administrative Authorization Model
Administrative authorization refers to the authorization by statute or regulation of all or some administrative authority concerning a certain matter to an organization outside of the administrative bureau. The organization being authorized should exercise administrative authority in its own name and assume legal liability arising therefrom. According to relevant provisions of Chapter 3, “Bureaus Imposing Administrative Penalties”, of the Administrative Penalties Law, administrative penalties must be imposed by administrative bureaus that have the authority to impose them within the scope of their statutory functions and authority. The State Council or the People's Government of a province, autonomous region or municipality directly under the control of the central government that is authorized by the State Council, may decide to allow one administrative bureau to exercise another administrative bureau’s authority to impose administrative penalties; except that the authority to impose administrative penalties involving restrictions on the freedom of persons may only be exercised by public security bureaus. Organizations that are authorized by laws and regulations to deal with the administration of public affairs may impose administrative penalties within the scope of their legal authority.
Administrative authorization possesses the following legal characteristics:
- The functions and authority of administrative authorization are generated by the express provisions of statutes and regulations; hence the organization, content and scope of the functions and authority should be specified directly by these statutes and regulations;
- Administrative authorization means a simultaneous shift of administrative functions, authority and duties; hence, an organization to which administrative functions and authority is delegated must simultaneously accept corresponding administrative duties;
- Administrative authorization results in the authorized organization obtaining the capacity of an independent administrative entity capable of independently exercising the authorized scope of authority and bearing legal liability in its own name.
- Analysis of the Administrative Entrustment Model
Administrative entrustment means that within its scope of authority an administrative bureau entrusts an organization legally established for the management of public affairs to exercise certain administrative authority. The entrusted organization exercises the delegated authority in the entrusting bureau’s name instead of its own name, and legal liability remains with the entrusting bureau. Article 18 of the Administrative Penalties Law provides that “Administrative bureaus may, in accordance with the law and their own scope of authority, entrust organizations qualified under the conditions stipulated in Article 19 of this Law to implement administrative punishment, and administrative bureaus shall not entrust another organization or person to implement administrative punishment. The entrusting administrative bureau shall be responsible for supervision of the acts of the entrusted organization to implement administrative punishment and shall bear all legal liability arising from such acts. The entrusted organization shall, within its scope of authorization, implement administrative punishment in the name of the entrusting administrative bureau, and shall not entrust another organization or person to implement administrative punishment.”
Generally speaking, administrative entrustment is characterized as follows:
- The entrusting party in an administrative entrustment must be an administrative bureau. Entrustment conducted by a non-administrative bureau should not be deemed an administrative entrustment;
- The matter entrusted must fall within the administrative bureau’s scope of legal authority, since the administrative bureau cannot entrust beyond its own authority;
- The organization involved in administrative entrustment should generally be an administrative organization legally established for the management of public affairs;
- The organization being entrusted must exercise the authority entrusted in the name of the entrusting administrative bureau within its scope of authorization, and the entrusting administrative bureau bears any legal liability arising from such acts.
- Analysis of the Management Committee’s Law Enforcement Model
Under the Measures, it seems that the FTZ Management Committee may perform nine types of administrative management duties, in its own name and within the FTZ. In terms of comprehensive law enforcement concerning centralized market supervision and management, the Management Committee seems able to exercise administrative penalty rights as well as administrative compulsory measures and administrative inspections in relation to patent and copyright matters in its own name.
Where the Management Committee performs administrative duties and exercises IPR administrative penalty rights in its own name, the system looks more like an administrative authorization model. The organization being authorized can implement administrative actions in its own name and assume independent legal liability because its administrative functions and authority are expressly authorized under applicable law. An organization can take part in administrative reconsideration as a respondent and in administrative litigation as a defendant. In an administrative authorization model, the Management Committee is an embodiment of the unification of “function authority and duty”. Nevertheless, as the foregoing analysis suggests, in an administrative authorization model the authority of the organization authorized to perform administrative functions and duties can arise only from express provisions of law; and the organization being authorized as well as the content and scope of the delegated authority must be directly prescribed by law. The authorized organization enjoys the legal status of an independent administrative entity under the Administration Law. The establishment and the functions and duties of the Management Committee, however, arose from Shanghai municipal government regulations, not national statutes or regulations. As an agency dispatched by the municipal government, the Management Committee is not an independent administrative entity. Moreover, individual IPR laws and regulations such as the Trademark Law, the Patent Law and the Copyright Law do not specifically authorize the Management Committee to implement IPR law enforcement. For these reasons, under current circumstances, should the Management Committee carry out IPR law enforcement administrative activities its legal status as well as the source of its administrative authority could be challenged.
If the Management Committee is treated as an agency dispatched by the municipal government that performs administrative duties and exercises IPR administrative penalty rights in the name of the municipal government, an administrative entrustment model is an appropriate framework for analysis. Under this model, the Management Committee exercises its authority within the scope entrusted by the municipal government, the legal liability for which must be borne by the entrusting body. The Management Committee, then, can only enforce the law in the name of the entrusting body and does not possess independent administrative entity capacity under the Administration Law. Article 25.4 of the PRC Administrative Proceedings Law specifies: “When specific administrative acts are performed by an organization empowered under statutes or regulations, such organization shall act as the respondent. Where specific administrative acts are performed by an organization entrusted by an administrative authority, the administrative authority that entrusts such organization shall act as the respondent.” Hence, the entrusted organization in an administrative entrustment does not enjoy independent administrative entity capacity, nor can it act as a defendant in administrative litigation. Instead, it can only exercise its delegated authority in name of the entrusting bureau, and legal liability for the entrusted acts is borne by the entrusting bureau. In theory, if patent- and copyright-related matters are centrally managed by the Management Committee, the importance of patent and copyright protection will be directly lifted to the municipal level, and the Management Committee’s authority would be significantly enhanced. However, it is likely that the rapid increase in administrative reconsideration and administrative litigation will adversely affect the municipal government.
In summary, the Management Committee still requires express authorization under the law or must otherwise undertake applicable legal procedures to act as an independent administrative entity and implement centralized patent and copyright administrative law enforcement. When it comes to law enforcement patterns, current regulations don’t provide in detail whether the Management Committee’s authority derives from administrative authorization or administrative entrustment by the Shanghai municipal government, or under the Law Enforcement Bureau of the State Intellectual Property Office. If the legality of the Management Committee’s law enforcement powers cannot be resolved as quickly as possible, the uniformity and authority of the Management Committee’s law enforcement activities in the FTZ will be affected, which will in turn exert a negative impact on the implementation of the spirit of the law.
The authors advise that, taking the example of the temporary amendment of the administrative examination and approval rules under the statutes concerning the three types of foreign-funded enterprises in the FTZ, the State Intellectual Property Office and the National Copyright Administration should coordinate with the Shanghai municipal government and the appropriate national government bureaus to file a proposal with the National People’s Congress that asks the NPC to amend IPR administrative law enforcement law to grant the FTZ Management Committee the authority to enforce patent and copyright administration law.
- Collaborative IPR Enforcement Innovations in the FTZ
To improve the IPR protection system, integrate IPR enforcement resources and resolve IPR protection problems such as fragmented enforcement and poor inter-bureau coordination, it is necessary to explore a new mechanism for synchronizing and coordinating IPR enforcement in the FTZ.
- Explore a “Three-In-One” Mechanism that Combines Trademark, Patent and Copyright Enforcement
The FTZ can take a “great leap forward” in IPR administrative management by combining trademark, patent and copyright enforcement into one system that allows administrative law enforcement to be undertaken entirely by a single bureau. Under current law, the Management Committee has already consolidated patent and copyright administrative enforcement rights. Trademark enforcement, however, is still implemented by the FTZ’s AIC Branch Office; and Customs, public security, the courts and the procuratorate continue to fulfill law enforcement functions at various stages in accordance with applicable law.
If feasible and proper, the AIC may authorize the Management Committee to carry out trademark administrative enforcement through the above-described legislative procedures in order to achieve a three-in-one administrative law enforcement model within the FTZ.
- Build a Collaborative IPR Enforcement Agency
Considering the current situation in which the AIC is responsible for law enforcement with the Management Committee, the authors hold that by using the model adopted by the Pudong New Area as a reference, the FTZ can establish an “FTZ IPR Protection Center” to implement a new administrative enforcement system where a single contact window is available for case acceptance. The Center, which could be coordinated and led by the FTZ Management Committee, could set up a collaborative enforcement office composed of various law enforcement and arbitration bureaus including the FTZ AIC Branch Office, the People’s Courts, the procuratorate, the public security bureau, Customs and the FTZ Arbitration Tribunal, and it could install a public IPR protection hotline to receive IPR-related inquiries, complaints and enforcement requests from citizens and corporate entities by telephone, the Internet and in-person reception. A collaborative law enforcement mechanism such as this would act in essence a window to the public through which a case might be accepted. After complaints and cases accepted are sorted, they could be transferred to the appropriate law enforcement units upon notification for verification and handling. In this way administrative enforcement authority would not be transferred, making this model distinct from the current enforcement model in which the FTZ authorizes the Management Committee to directly implement law enforcement activities.
- Regulate Collaborative Law Enforcement through Regulations as Much as Possible
The author advises that the FTZ’s collaborative IPR law enforcement, as a rigid long-term mechanism, should be fixed by legislation as far as possible. Regulations may be used to deal with the following issues: (i) the scope of the implementation of joint law enforcement administration, authority and the coordination of views; (ii) the principles, disciplinary rules and responsibilities of collaborative law enforcement; (iii) the conditions, scope and methods employed in collaborative law enforcement, and the validity of the opinions of collaboration; and (iv) measures for handling those who impede collaborative law enforcement. Applying regulations to collaborative law enforcement can improve the quality of law enforcement, reduce unnecessary conflicts, and improve administrative efficiency.
- Establish a Shared IPR Law Enforcement Information Mechanism
Pursuant to Article 5 of the Measures, the FTZ Management Committee should also be responsible for IPR-related administrative management work; specifically, the initial approval of submissions from patent agencies as well as issues such as patent advertising, the registration of overseas book publication contracts, the registration of contracts granting licenses for overseas audiovisual products, the recordation of imported books printed in Shanghai, and related administrative matters.
Accordingly, the FTZ Management Committee may take a leading role to strengthen information sharing and communication with IPR regulatory agencies such as Customs, the AIC, the quality inspection and public security bureaus, etc., so as to reduce the adverse effect caused by limited information resources in supervision and management work. Through information sharing, personal training, communication and cooperation in the identification of infringing goods, a consolidated barrier against infringement can be constructed in the FTZ. International law enforcement cooperation can curb cross-border IPR infringing acts and further increase the influence of the FTZ’s various IPR regulatory agencies on IPR protection matters.
- Establish a Summary Procedure for IPR Administrative Cases
A large number of infringement cases are process, and the amount of infringing goods involved in most of them is relatively low. Nevertheless, the handling of such cases has not been separated from other cases with high claim amounts, resulting in the inability of administrative law enforcement agencies to reasonably allocate resources. In addition, since only a relatively few goods are involved, rights owners do not actively cooperate with administrative law enforcement actions, making it even more difficult for administrative law enforcement agencies to handle these cases.
To escape the foregoing dilemma, it’s might be wise to reform the FTZ’s IPR case procedures by categorizing infringement cases on the basis of the amount of goods involved and by the nature and intensity of the infringing acts. A summary procedure might make sense in cases involving a low value or a small quantity of infringing goods, so as to improve administrative law enforcement efficiency and focus the majority of resources on important cases. The Management Committee can perform its coordination and management functions as prescribed in the Measures by establishing minimum quantity standards for infringing products and by applying summary procedures to cases in which goods of smaller quantity or value are legally seized by the AIC, the quality inspection agency or Customs.
Under the Shanghai IPR Strategic Plan, Shanghai is expected to become an Asia-Pacific IPR center by the year 2020. The Free Trade Zone, as an area enjoying preferential policies, has more flexibility to meet the requirements of high efficiency, convenience and speed, all of which render innovation in IPR law enforcement mechanisms a pressing demand. An innovative IPR mechanism put into trial implementation in the FTZ might yield a good enough track record to justify nationwide duplication and promotion.
Yuxia Zhang & He Tao