By Shi Yusheng and Xia Fan, King & Wood's IP
The newly promulgated Tort Law of the People's Republic
of China came into force on July 1, 2010. The Tort Law,
positions itself as a fundamental doctrine in the protection of
one's civil and property rights in China. Intellectual property
rights, such as copyrights, patent rights, trademark rights, are
included in the scope of protection under the Tort Law.
Accordingly, relevant provisions of the Tort Law will have
substantial impact on IPR infringement. While there are many
intersects, one major impact is discussed below.
Before the promulgation of the Tort Law, the relevant IP laws,
such as the Trademark Law of the People's Republic of
China ("Trademark Law"), the
Patent Law of the People's Republic of
China("Patent Law"), and the
Copyright Law of the People's Republic of China
("Copyright Law"), do not address issues
in relation to contributory infringement and consequential
Contributory infringement of IPRs refers to an act where a party
provides assistance to another party in their IPR infringement, for
example, intentionally providing an operations site for
counterfeiters or intentionally providing materials or components
to counterfeiters for manufacturing patented products. In practice,
there is also no consensus on how to determine legal liabilities
for contributory infringement. For example, Paragraph 2 of Article
50 of the Implementing Regulations of the Trademark Law of the
People's Republic of China ("Implementing
Regulations") listed a number of acts which can be
deemed as contributory infringement of trademark rights. However,
the list cannot cover all types of such infringement. Similarly,
the Beijing Higher People's Court issued the Opinions on
Patent Infringement Issues (Trial Implementation)
("Opinions") in 2001, in which the Court
provided more specific descriptions on determination of
contributory infringement of patents.
In practice, the Opinions may only be used as reference in local
patent infringement trials, and lack legislative authority in all
patent infringement trials nationwide. Furthermore, the
Interpretation of the Supreme People's Court on Issues
Relating to Application of Law in the Trial of Copyright Disputes
over Computer Network ("Interpretation on
Copyright Disputes") and the Regulations on the
Protection of the Right to Network Dissemination of
Information ("Regulations on Information
Dissemination") regulate contributory infringement
acts in cases in relating to internet copyright infringement, but
there are also insufficiencies in relation to the applications of
these laws and regulations.
An increasing number of IPR infringement lawsuits involve claims
against infringers for contributory infringement. For example, in
Louis Vuitton v. the Beijing Xiushui Haosen Clothing Market
Company and Taiyuan Heavy Machinery Group Company v.
Taiyuan Electronic Systems Engineering Corporation, there were
no statutes which provided direct reference to contributory
infringement. As such, the judges could only rely on the provisions
regarding contributory infringement of civil rights in the
General Principles of the Civil Law of the People's
Republic of China ("General
Principles"). However, the General Principles merely
address contributory infringement in principle and does not provide
clear indications as to whether the party in contributory
infringement who provide help to the infringers of if direct
infringement bears legal liability or the type of such liability.
In short, there is a lack of a legislative framework the
People's Courts can apply when determining the legal
liabilities of contributory infringement in IPR infringement
The Tort Law fills the legislative void and solidifies the legal
basis in preventing contributory IPR infringement. Paragraph 1 of
Article 9 of the Tort Law provides that "[a] person who abets
or assists another person in committing a tort shall be jointly and
severally liable with the tortfeasor." This is to say that, a
person who assists another person's tortious infringement
conduct in relation to IPR will constitute contributory
infringement and shall be jointly liable. Compared with the listing
methodology used in the Implementing Regulations, the expression of
"assist" enables judges to significantly expand the room
for judicial application of this law.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
This article enunciates the recent, much awaited, and landmark judgment delivered on September 16, 2016 by Hon'ble Delhi High Court throwing light on the important provisions of the Copyright Act, 1962.
Department of Industrial Policy and Promotion recently issued an office memorandum pursuant to receiving representations from various stakeholders for guidance with respect to the applicability of the provisions of Section 31D of the Copyright Act, 1957.
An Invention Disclosure Form is the documentation of the invention. This is a means to document particulars of your invention and submitting it to the patent attorney who is filing your patent application.
The Patents Act 1970, along with the Patents Rules 1972, came into force on 20th April 1972, replacing the Indian Patents and Designs Act 1911. The Patents Act was largely based on the recommendations of the Ayyangar Committee Report headed by Justice N. Rajagopala Ayyangar. One of the recommendations was the allowance of only process patents with regard to inventions relating to drugs, medicines, food and chemicals.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).