This step-by-step guide sets out the actions to be taken upon discovering an infringement of an intellectual property right (IPR) in the People’s Republic of China (China). The IPRs addressed in this guide include copyright, trademark, patent, and unfair competition (including counterfeiting).
STEP 1: DEFINE YOUR RIGHT, CLAIM, AND DAMAGES CAUSED BY THE INFRINGEMENT
If your IPR is registered in China, you may rely on the following statutes. In practice, it is possible that a certain right could be protected under more than one IPR.
- Trademark Law of China
- Copyright Law of China
- Patent Law of China
- Regulations on Computers Software Protection
- Regulations on Protection of New Varieties of Plants
- Regulations on Protection of Integrated Circuit Layout Design
In most cases, an IPR that has not been registered in China may not be enforced in China. However, an owner of an unregistered IPR may claim against the infringer for unfair competition under the Anti-Unfair Competition Law of China (the AUCL) as unfair competition is not based on any registered IPRs.
STEP 2: COLLECT EVIDENCE
Unlike the United States, China does not have a system for conducting discovery.
It is important that evidence is secured and notarized before you start any official action. Once the infringer becomes aware of a potential claim, it may become difficult to collect evidence, as the infringer may destroy it.
You should collect three types of evidence:
- Evidence that proves you are the IPR owner (i.e., certificates).
- Evidence that proves the act of infringement by the infringer, including sale, manufacture, and so forth (e.g., suspected infringement samples, publicity materials).
- Evidence that supports the amount of compensation you request from the infringer.
We highly advise you to consult a law firm with a presence in China or a private investigator to assist in collecting evidence. You may consider cooperating with the administrative enforcement authorities in China (see below) or China Customs (see below) as additional means of collecting evidence.
Read full article at https://www.natlawreview.com/article/guide-how-to-enforce-intellectual-property-rights-china
