1 FORM OF PROTECTION
1.1 Designs may be protected in the PRC
1.1.1 by registration as a design patent under the Patent
Law; or
1.1.2 by copyright protection eg. as an artistic or a graphic
work (such as technical diagrams or maps) - for which
registration is not mandatory;
1.1.3 by registration as a trade mark.
1.2 To protect a design, it is usually advisable to obtain a
registration of some kind to assist in enforcement. The PRC
authorities are more willing to act where a party can provide
specific proof of ownership in the design by showing a
certificate of registration.
1.3 The rest of this briefing note focuses on protection for
registration of a design as a patent. For details of how to
obtain copyright or trade mark protection, see separate
sections on these topics.
2 CRITERIA FOR AND SCOPE OF PROTECTION
2.1 A design may be registered in China as a "design patent' if:-
2.1.1 it is a new design of shape, pattern or colour (in
isolation or in combination) of a product which creates
an aesthetic feeling and is fit for industrial
application; and
2.1.2 is not identical with or similar to a design which has
been previously published, either inside the PRC or
abroad, or which has been previously used in the PRC.
2.2 A design patent may not cover more than one design for one
class of product (there is an exception for products belonging
to the same class which are sold or used in sets).
2.3 The maximum duration of a design patent is ten (10) years,
counted from the date of filing. An annual fee must be paid on
each anniversary of the filing date.
3 COMPULSORY LICENCE
3.1 If a design patent is not used to manufacture a product in the
PRC, a compulsory licence to a Chinese party may be granted.
Importation of relevant products should satisfy this "use"
requirement.
3.2 Compulsory licences may also be granted in cases of national
emergency if it is considered in the public interest to do so.
4 CLAIMING INTERNATIONAL PRIORITY
4.1 Priority may be claimed under the Paris Convention from design
applications filed in other convention countries, within the
six (6) month priority period.
5 MARKING REQUIREMENTS
5.1 There are no mandatory marking requirements. It is however
advisable for the design patentee to mark its products clearly
to indicate that it is a registered design patent or the
subject of a patent application.
1 May 1996
LINKLATERS & PAINES, HONG KONG OFFICE - Contact Partner Tom Hope
Internet address - thope@landp.com
Tel - 852 28424888
Fax - 852 28108133
FURTHER INFORMATION on the above may be obtained via Linklaters & Paines Hong Kong office or via any of the other nine Linklaters & Paines offices world-wide, located in Singapore, Tokyo, London, Brussels, Paris, Frankfurt, New York, Washington D.C. and Moscow. Contact details for the various L&P offices worldwide are available via the Linklaters & Paines corporate listing c/o Business Monitor Online - http://www.businessmonitor.co.uk