1. What different types of intellectual property rights exist to protect: (a) Inventions (e.g. patents, supplementary protection certificates, rights in trade secrets, confidential information and/or know-how); (b) Brands (e.g. trade marks, cause of action in passing off, rights to prevent unfair competition, association marks, certification marks, hallmarks, designations of origin, geographical indications, traditional speciality guarantees); (c) Other creations, technology and proprietary interests (e.g. copyright, design rights, semiconductor topography rights, plant varieties, database rights, rights in trade secrets, confidential information and/or know-how).
(a)
The followings are available for inventions: patents, rights in trade secrets, confidential information and/or know-how.
(b)
The followings are available for brands: trademarks, cause of action in passing off, rights to prevent unfair competition, association marks, certification marks, hallmarks, designations of origin, geographical indications, trade name, domain name.
(c)
The followings are available for other creations, technology and proprietary interests: copyright, design rights, semiconductor topography rights, plant varieties, database rights, rights in trade secrets, confidential information and/or know-how.
2. What is the duration of each of these intellectual property rights? What procedures exist to extend the life of registered rights in appropriate circumstances?
Invention patent: 20 years from filing date; Utility model patent: 10 years from filing date; Design patent: 15 years from filing date; Semiconductor topography:10 years from filing date or 15 years from the creation date, whichever is earlier; Plant varieties:15-20 years depending on the specific variety.
There is no procedure to extend the life of the above IP rights, except for the patent related to a new pharmaceutical product approved for marketing in China to compensate for the time taken for review and approval. The patent term extension shall not exceed 5 years, and the resulting total effective patent term shall not exceed 14 years from the approval for marketing of the new drug.
Trademarks: 10 years since registration date. Renewable for 10 years each time (1) within 6 months before the expiration, or (2) within a grace period of 6 months beyond the expiration.
Copyright: For a work of a natural person, the lifetime of the author plus 50 years after his death for protection of the right of publication and the rights as provided in (5) to (17) in Article 10.1 in the PRC Copyright Law, expiring on December 31 of the fiftieth year after his death. In the case of a joint work, the lifetime of the surviving author plus 50 years after his death, expiring on December 31 of the fiftieth year after his death.
For a work of a legal person or unincorporated organization, and a work for hire whose copyright (excluding the right of authorship) is enjoyed by a legal person or unincorporated organization, the term of protection for the right of publication shall be fifty years, expiring on December 31 of the fiftieth year after the completion of its creation; and the term of protection for the rights as provided in (5) to (17) in Article 10.1 of the PRC Copyright Law shall be fifty years, expiring on December 31 of the fiftieth year after the first publication of such a work; but if a work is not published within fifty years after the completion of its creation, it shall no longer be protected.
For an audiovisual work, the term of protection for the right of publication shall be fifty years, expiring on December 31 of the fiftieth year after the completion of its creation; and the term of protection for the rights as provided in (5) to (17) in Article 10.1 of the PRC Copyright Law shall be fifty years, expiring on December 31 of the fiftieth year after the first publication of such a work; but if a work is not published within fifty years after the completion of its creation, it shall no longer be protected.
3. Who is the first owner of each of these intellectual property rights and is this different for rights created in the course of employment or under a commission?
Patents, semiconductor topography and plant varieties: the entities or individuals who have made the invention-creation, unless otherwise agreed upon in advance. For service invention-creation, the first owner is the employer unless otherwise agreed upon in advance.
Trademarks: trademark applicant who has filed in bona fide or on case-by-case basis, the first bona fide user of the trademark.
Copyright: The owner of copyright in a work is its author. The author of a work is a natural person who creates the work. IF a work is created under the auspices of, representing the will, and under the responsibility of a legal person or unincorporated organization, such a legal person or unincorporated organization shall be deemed the author of the work.
4. Which of the intellectual property rights described above are registered rights?
Patents, trademarks, semiconductor topography rights and plant varieties are registered rights.
A copyright shall subsist on the date when a work is created. Copyright registration is optional and advisable.
5. Who can apply for registration of these intellectual property rights and, briefly, what is the procedure for registration?
Patents, trademarks, semiconductor topography rights and plant varieties: Any individual, legal entity or other organisation. The registrations of patents in China can follow either Paris conventional route or PCT route (not for design). But for semiconductor topography rights and plant varieties, there is only one route: directly filing the application with the competent authority in P.R. China.
The registrations of trademark in P.R. China can follow either domestic filing route or international filing route.
Copyright: Authors and legal persons or unincorporated organizations as authors register their works with a registry recognized by the copyright authority in P.R. China.
6. How long does the registration procedure usually take?
Patents, semiconductor topography and plant varieties: For invention patent, it takes on average 2.5 years from filing to granting. For utility model patent, it takes on average 10 months from filing to granting. For design patent, it takes on average 6 months from filing to granting. For semiconductor topography, it takes on average 2 months from filing to registration. For plant varieties, it takes on average 4 years from filing to registration.
Trademarks: 1 year on average.
Copyright: 3 months on average.
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Originally published by Legal500.
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