Haworth & Lexon Law Newsletter
No.3, 2001 (Total:No.3) November 19, 2001
Edited by Haworth & Lexon
?SPAN style="FONT: 7pt 'Times New Roman'"> Deputy Head of Regulation Department of Shanghai Customs, Mr. Chen Xudong lectured in our firm on the issue of “intellectual property rights through customs enforcement
?SPAN style="FONT: 7pt 'Times New Roman'"> Eight chief points of amendment to Trademark Law
?SPAN style="FONT: 7pt 'Times New Roman'"> Latest Laws and Regulations
1 Amended Copyright Law was put into force on Oct. 27th
1 Foreign Invested Company Limited by Share can issue stocks as listed company
1 Provisions on Responding to Actions of Antidumping of Export Products
On Oct.17th, deputy head of Regulation Department of Shanghai Customs, Mr. Chen Xudong lectured in our firm on the issue of customs protection of intellectual property rights. With the focus of scope and basic procedure of customs protection of intellectual property rights”, the lecture also covered following aspects: the background, relevant laws and regulations as well as principles of customs protection of intellectual property rights. Meanwhile, Mr. Chen also exchanged ideas and experience on the existing problems in the practice area with attorneys in our firm.
Customs protection of intellectual property rights”, in short, means that commodities infringing upon intellectual property rights under protection by laws of People's Republic of China (only refer to copyright, trademark, patent) will be banned from import and export by the customs.
Firstly, The right-holders or their agents should hand in an written application to the Customs General Administration with the content of 7 points: title or name of the proprietor; place of registration; the person or persons authorized or allowed to use intellectual property rights; the title and origin of goods related to intellectual property rights, etc.
The Customs General Administration shall inform applicants of its decision to grant or refuse recording within 30 days after receiving all application documents. The Customs General Administration shall issue certificates of recording if it decides to grant recording, or provide justification if it decides to refuse recording.
The proprietor recorded at the Customs General Administration can, upon discovery of cases of imminent entry or exit of goods suspected of right infringement, apply to local customs offices for taking intellectual property right protection measures. Meanwhile, Should customs offices over the country suspect import or export goods of infringing upon intellectual property rights recorded at the Customs General Administration, they shall have the right to take measures to protect proprietors right and interest, and the customs offices also have obligation to notice the proprietor once the infringing clues were found.
The customs has right to detain the goods of infringing upon intellectual property rights at the request of the applicant after they pay customs offices guarantees with equal value to the goods.
If no objections are raised by the consignee or the consignor, customs offices shall have the right to, after investigation, dispose of the detained goods suspected of right infringement as right-infringing goods, and punish the relevant infringers using administrative ways. If objections are raised, customs offices shall immediately inform, in written form, the applicant of the objections.
The applicant shall have the right to apply to departments in charge of intellectual property rights for handling disputes over right infringement or raise lawsuits with people's courts in the fixed period of time provided by the laws.
In order to meet the needs of China economy development and keep pace with TRIPs after China's entry into WTO, the Standing Committee of NPC adopted amended “Trademark Law” on Oct. 27th. The new Trademark Law shall enter into force on Dec. 1st, 2001. Here just comment 8 chief points of amendment with great influence:
1. Natural person has right to apply trademark registration.
2. The scope of the protection for objects has bee extended.
3. Abolish the strict principle First to File. Instead, any application for registration of a trademark shall not create any prejudice to the prior right of another person.
4. Provide the judicial review for trademark application.
5. Delete the element knowing, which is formally regarded as a necessity to infringement.
6. Amend some other provisions in order to provide better protection of applicant and other relevant parties.
7. Provide exclusive right to administrative authorities for industry and commerce during the process of infringement investigation.
8. Provide additional protection for well-known trademark.
1. The amended Copyright Law was adopted on Oct. 27th by the Standing Committee of NPC, and became valid on the same day. The new law extends the scope of the protection for object to 17 items, including “right of rental” and “right of communication of information on Internet.
2. In order to normalize foreign investment enterprises entry into stock market and their stocks issuing, Ministry of Foreign Trade and Economic Cooperation and China Securities Regulatory Commission jointly released The Several Opinions on Issues Related to Listed Companies That Involve Foreign Investment
3. In order to better organize Chinese export enterprises to respond the action of antidumping investigations, Ministry of Foreign Trade and Economic Cooperation Promulgated “Provisions on Responding to Actions of Antidumping of Export Products” on Oct 11th. The provisions shall enter into force on Dec. 1st, 2001. The provisions can be applied to alarming, responding and reviewing of antidumping investigation cases.