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英文版电子书《知识产权在中国 Intellectual Property Rights in China 2nd Edition》

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内容提示: China BriefingThe Practical Application of China BusinessFor further volumes:http://www.springer.com/series/8839http://www.asiabriefingmedia.com Dezan Shira & Associates is a specialist foreign direct Investment practice, providingbusiness advisory, tax, accounting, payroll and due diligence services to multinationalsinvesting in China, Hong Kong, India and Vietnam. Established in 1992, the firm is aleading regional practice in Asia with seventeen offices in four jurisdictions, employing over170 busines...

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China BriefingThe Practical Application of China BusinessFor further volumes:http://www.springer.com/series/8839http://www.asiabriefingmedia.com Dezan Shira & Associates is a specialist foreign direct Investment practice, providingbusiness advisory, tax, accounting, payroll and due diligence services to multinationalsinvesting in China, Hong Kong, India and Vietnam. Established in 1992, the firm is aleading regional practice in Asia with seventeen offices in four jurisdictions, employing over170 business advisory and tax professionals.We also provide useful business information through our media and publishing house, AsiaBriefing. Chris Devonshire-Ellis ? Andy Scott ?Sam WoollardEditorsIntellectual Property Rightsin ChinaSecond Edition123 EditorsChris Devonshire-EllisAndy ScottSam WoollardDezan Shira & AssociatesAsia Briefing Ltd.Unit 1618, 16/F.,Miramar Tower, 132 Nathan Road,Tsim Sha Tsui, Kowloon,Hong Kong, People’s Republic of Chinae-mail: editor@asiabriefingmedia.comISSN 2191-0634e-ISSN 2191-0642ISBN 978-3-642-15407-2e-ISBN 978-3-642-15408-9DOI 10.1007/978-3-642-15408-9Springer Heidelberg Dordrecht London New YorkPublished by Springer-Verlag Berlin Heidelberg 2011? Asia Briefing Ltd. 2008, 2011This work is subject to copyright. All rights are reserved, whether the whole or part of the material isconcerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcast-ing, reproduction on microfilm or in any other way, and storage in data banks. Duplication of thispublication or parts thereof is permitted only under the provisions of the German Copyright Law ofSeptember 9, 1965, in its current version, and permission for use must always be obtained fromSpringer. Violations are liable to prosecution under the German Copyright Law.The use of general descriptive names, registered names, trademarks, etc. in this publication does notimply, even in the absence of a specific statement, that such names are exempt from the relevantprotective laws and regulations and therefore free for general use.Cover design: eStudio Calamar, Berlin/FigueresPrinted on acid-free paperSpringer is part of Springer Science+Business Media (www.springer.com) About China Briefing’sChina Business GuidesThank you for buying this book. China Briefing’s publications are designed to fill aniche in the provision of information about business law and tax in China.Produced by the foreign direct investment practice Dezan Shira & Associates,when we decided, several years ago to commence this series, we did so in theknowledge that much of such intelligence regarding China was expensive, orcontradictory. Much also did not adequately address the real on the ground issuesfaced by multinational businessmen—the practical knowledge that must be part ofthe armory of any business dealings in emerging markets. China Briefing isdesigned to deal with this gap and is aimed at providing both the regulatorybackground as well as detailed information concerning China business with a firmeye on the practicalities of turning a profit and remaining in compliance on themainland.Accordingly, we have made this guide informative, easy to read and inexpen-sive. To do so, we have engaged not just a team of journalists, but in many cases,Dezan Shira & Associates’ own team of legal and tax experts in their related fields.For this book however, the text has been graciously provided by Austria Wir-tschaftsservice (aws), an agency of the Austrian government that specializes inevaluating and providing for technological inventions. In China, they support theirclients with patent work, IP support and protection services. We thank them fortheir assistance with this work.This first edition of this book was compiled and written by Verena Nowotnyand edited by Andy Scott. The second edition of this guide was updated by MonikaVuong, Alex Blauensteiner and Georg Buchtela, and edited by Eunice Ku, TejaYenamandra and Shelly Zhao; the cover design was by Chris Wei; and the layoutwas by Chris Wei and Becky Jian.At China Briefing, our motto is ‘‘The practical application of China business,’’we hope that you feel we have accomplished this within these pages.Asia Briefing PublicationsHong Kong ContentsAn Introduction to IPR in China . . . . . . . . . . . . . . . . . . . . . . . . . . . .1IPR Laws in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7IPR Registration in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13Trade Fairs and Exhibitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21Protecting Your IPR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25Enforcement of IPR in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43Glossary of Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59vii An Introduction to IPR in ChinaOne of the first experiences a visitor to China may have is a friendly and eagerinvitation by a Chinese vendor to follow them to their stand in order to buywatches, bags, DVDs or other items for a fraction of the amount one would pay inEurope or the United States. Although in recent years the Chinese government hasundertaken massive efforts to launch campaigns against counterfeiters and tried tocreate awareness that the theft of intellectual property rights actually is a crime,fake products are still ubiquitous in China.Statistics give an impression of the dimension of the business of counterfeitingin China: seven in ten European companies doing business in China say they havebeen victims of IPR theft. In 2006, European manufacturers estimated that IPRinfringements cost them one dollar in every five they made in China. More thanhalf of all the goods seized by EU customs come from China. Counterfeiting is notrestricted to luxury goods or famous brands; it takes place in all industry areas andincludes day-to-day products. Experts estimate that 10% of world trade is based onfakes. A 2010 report predicts job losses due to piracy to reach as high as 1.2million and €240 billion in lost retail revenue by 2015 for the European Union.1China is the second largest economy in the world, offering attractive businessopportunities and a huge potential market. However, as in all developing econo-mies, and China being a developing country, there are risks involved—the theft orinfringement of intellectual property rights being one of them. Being aware ofone’s intellectual assets, pursuing a clear strategy on how to use them, and pro-tecting and enforcing them is part of the necessary homework a foreign companydoing business in China still has to do.Surveys conducted by national chambers of commerce reveal that companiesthroughout the United States and Europe do not use existing legal measures to1Building a Digital Economy: The Importance of Saving Jobs in the EU Creative Industries,March 2010, Tera Consultants.C. Devonshire-Ellis et al. (eds.), Intellectual Property Rights in China,China Briefing, DOI: 10.1007/978-3-642-15408-9_1,? Asia Briefing Ltd. 20111 protect and defend their IPR in China. Although the risk of IPR infringement iswidely known, a vast majority of companies doing business in the country havenot filed their IP rights here, citing high costs as one of the main reasons.Filing for IP rights in China may also be appropriate for companies who are notdoing business in China. With the development of China’s export-oriented econ-omy, companies that refrain from operating in China can suffer from infringe-ments as well when encountering their faked products in third markets—exportedthere by Chinese counterfeiters. On the other hand, foreign companies also need topay attention to the rising awareness of IPR among Chinese companies thatincreasingly defend their intellectual property against infringements as well.Since China’s accession to the World Trade Organization and the third revisionof the 2008 Chinese Patent Law, the quality of Chinese IP laws has risen to meetinternational standards. Even though enforcement remains a real problem, it is notimpossible to successfully protect IP in China. It may not be an easy task, butsuccessful cases of foreign companies have proven that it is possible to protect andenforce one’s IPR in China.1 Historical Development of IPR Laws in ChinaAlthough the current legislation is no older than 25 years, some of the very earliestregulations concerning intellectual property in China date from the end of thenineteenth century. The ‘‘Regulation for the Award and Promotion of TechnologyDevelopment,’’ one of the first pieces of legislation regarding inventions, wasenacted by the Emperor Guangxu in 1889. This regulation offered protection ofexclusive rights for specific inventions in the shipping industry. Interestingenough, the legislation also included a grant for the protection of copies ofWestern technology. This praising and incitement for making good copies is atypical trait of Chinese culture, which might affect the current perception on theinfringement of intellectual property. The IPR systems were modernized between1928 and 1944 by the Kuomintang Republican government.The rise of the Communist Party and the foundation of the People’s Republic ofChina in 1949 coincided with a dramatic halt in the development of a modern IP setof norms and in particular of a modern patent law. The State automatically acquiredeconomic exploitation rights. In 1963, the concept of collective property of inven-tion’s rights was introduced, giving State units the right to exploit inventionsunconditionally.With the political and economic reforms of Deng Xiaoping in the late 1970s,China’s opening of relations with the outside world brought radical reforms to thecountry’s patent laws. In 1984, a new patent law was enacted. In 1985, Chinaacceded to the Paris Convention for the Protection of Intellectual Property, fol-lowed by the accession to the Madrid Trademark Agreement in October 1989. In1992, China became a party to the Berne Convention for the Protection of Literaryand Artistic Work. In 1993, a first revision of the patent law took place, increasing2An Introduction to IPR in China the duration of the protection of exclusive rights from 15–20 years for patents andfrom 5 to 10 years for design patents. In 1994, China acceded to the PatentCooperation Treaty (PCT). In 2001, there was a further revision of the patent lawto adapt to the standards of the Agreement of Trade Related Aspects of IntellectualProperty Rights (TRIPS) that was applicable to China at the moment of accessionto the WTO. Since that time TRIPS has been binding for China. All these con-ventions ensure a minimum standard of protection of IP rights. Finally, the thirdrevision of the 2008 Chinese Patent Law came into force in 2009. All reforms ofthe Chinese IP laws so far have been inspired by Western IP laws. In the patentfield especially, Chinese legislators have massively made use of European patentlaw experiences.China’s accession to the WTO has put IPR high on the agenda of Chinesepoliticians. In 2009, Chinese courts handled 30,626 IP law cases, 4,422 of whichdealt with patent law suits.2However, the Chinese system still faces problems withthe implementation of the written norms. The sometimes inconsistent and unclearcourt or administrative enforcement practices have led to political reactions byvarious Western countries, which are threatening to initiate WTO infringementprocedures against China for noncompliance with the TRIPS norms. However, italso should be mentioned that China’s own activities in patent applications haverisen and will continue to increase in the future. Foreign companies being sued bya Chinese company in China is also not that uncommon anymore.2 Trends in China’s IPR EnvironmentReforms of the patent laws took place in 1992 and 2000. In 2005, Chinese expertsat the State Intellectual Property Office (SIPO) started working on the thirdrevision of the Patent Law that finally came into force in 2009. The aim of the thirdrevision was improvement in the quality of the patents, protection of national andother public interests as well as the balancing between patent protection and publicinterests. The major changes affect the patent granting procedure. This includesthe absolute novelty standard, the protection of genetic resources meaning thatinventions based on genetic resources will not be patentable, and the introductionof compulsory licensing under certain circumstances. Also, the requirement thatinventions completed in China have to be filed in China first has been nullified.However, China now requires the patentee to apply for the confidentiality exam-ination before filing abroad. Foreign observers are concerned, however, as therevisions are also designed ‘‘to better balance the interests of patent holders andthe public, and to safeguard national interests and economic security.’’ This isusually synonymous for protecting Chinese economic interests.2Source: China IP News/SIPO1Historical Development of IPR Laws in China3 The Chinese government openly pursues the strategic aim of building up self-innovation capabilities and wants to become an innovative country by 2020.‘‘In 2001, China ranked 28th in 49 major countries in terms of comprehensivescientific and technological innovation capability,’’ said the Minister of Scienceand Technology, Xu Guanhua, in March 2006. ‘‘We have to move 10 places aheadand enter the ranks of the first 20 before we can say that we have succeeded inachieving our target.’’ The ‘‘Outline of the National Intellectual Property Strategy’’issued by the State Council in June 2008, clearly states the importance of IPR fromthe Chinese perspective. ‘‘In the world today, with the development of theknowledge-based economy and economic globalization, intellectual property isincreasingly becoming a strategic resource in national development and a coreelement in international competitiveness, an important force in building an inno-vative country and the key to hold the initiative in development.’’ (Please see theAppendix for the full text.) Since then, China has been in the fast lane according tothe report ‘‘An Assessment of China’s Position and Impact in the ScientificWorld’’ published by the Institute of Scientific and Technical Information of China(ISTIC) in the first quarter of 2010. China ranks 4th out of 19 countries in nationalscientific strength and 13th in worldwide scientific influence.3Both Chinese and foreign entity applications in China have grown substantiallyduring the last years. However, domestic applications grew at a more rapid paceand outnumbered foreign applications by 2003 as shown in Fig. 1 below. Fur-thermore, margins between domestic and foreign applications have become evenwider over the last 4 years.4However, there was a clear difference in the quality of the patents, as theChinese applicants often resort to the less strictly examined utility model or designpatents for their products. Approximately half of all Chinese patents filed in 2009were utility models, which are less rigorous, more affordable forms of patents that-50,000100,000150,000200,000250,000300,000350,000400,0001997 1998 1999 2000 2001 2002 2003 2004 20051997 1998 1999 2000 2001 2002 2003 2004 2005InnovationUtility ModelDesign patentInnovationUtility ModelDesign patentApplications of Chinese originApplications of foreign origin 100,00080,00060,00040,00020,0000Fig. 1.1 Domestic vs. foreign Chinese patent filings (applications) Source: The Present andFuture State of Innovation in China, Thomson Rueters, 20103http://opinion.globaltimes.cn/commentary/2010-03/510838.html, accessed March 7th, 20114The Present and Future State of Innovation in China, Thomson Reuters, 20104An Introduction to IPR in China provide 10 year of protection (versus 20 years for invention patents). The use ofutility model patents in China has grown at a rate of 18 percent per annum since2001. Utility models are also a potentially valuable strategy for foreign filings inChina.5The goal of the recent revision of China’s Patent Law was to improve thequality of patents. However, the Chinese government will continue to encourage asmany patent applications as possible among Chinese enterprises. Furthermore, theChinese government is well aware that future competitiveness is not only aquestion of innovation but also of international standards. According to the new IPstrategy, the State Council seeks to ‘‘formulate and improve policies related tostandards,’’ and ‘‘regulate the process of turning a patent into a standard. Enter-prises and industry organizations should be supported in actively participating inthe formulation of international standards.’’ The patent offices of the US, Japan,Europe (EPO), South Korea and China account for 75% of all patents filed and74% of patents granted worldwide. Especially in the areas of telecommunications,semiconductors, pharmaceuticals and computers, Western countries hold between70 and 90% of all patents. An analysis of patent volumes over the last five yearsfrom these five major offices shows that inventions from China have been growingat a faster rate than any other region.6Comparatively, more than 90% of all Chinese companies have no patent rightsat all; about 60% do not even have a trademark. In realizing that the high costs oflicenses are impeding competitiveness, the Chinese government is pursuing apolicy of technology import. This policy often leads to a certain pressure onforeign companies to allow technology transfers, and thus transfers of valuableknowledge.The most common ways of these involuntary technology transfers take placeare through obligatory co-operations in the form of joint ventures or with designinstitutes, patent registration procedures for pharmaceutical products, the defini-tion of local content, or procedures and obligations in public tenders. Consideringthe ambitious goals of the Chinese government concerning the improvement ofinnovation capacity, the new measures regarding technology transfer in conjunc-tion with the third revision of the Patent Law are particularly meaningful.In this competitive environment it is more important than ever for foreigncompanies to actively manage their intellectual assets and have their intellectualproperty rights adequately, protected before they enter the Chinese market.5http://www.whatsonxiamen.com/invest299.html6The Present and Future State of Innovation in China, Thomson Rueters, 20102Trends in China’s IPR Environment5 IPR Laws in ChinaSince China’s accession to the World Trade Organization in 2001, the country’slaws concerning intellectual property rights have had to come in line with inter-national standards. Recent developments such as the third revision of China’spatent law underline this. Similar to Western countries, the various types of IPrights are defined in the Chinese Patent Law, the Trademark Law, the CopyrightLaw, and the Law on Unfair Competition. Further regulations and interpretationsissued by the Supreme Court aim at clarifying certain questions such as IP rightsinfringements on the internet.1 Patents (Inventions, Utility Models, Design)A patent gives the owner the exclusive right, for a limited period, to prevent othersfrom making, using or selling an invention without permission, in return for theinventor telling the public how to carry out the invention. Like other forms ofproperty, a patent right can be bought, sold, rented or hired. Patents are territorialrights: a Chinese patent will only give the patentee rights in China; by the sametoken a patent for European countries or the United States does not protect one’spatent in China.The Chinese Patent Law of 2008 protects ‘‘inventions’’ (or ‘‘patents’’ in thestrict sense or according to the international terminology), utility models anddesign. The term used by the law when referring to all the three categories togetheris ‘‘invention–creation.’’The Chinese Patent Law is inspired by the German Patent Law in particularwith respect to the part regarding utility models. Design patents have beenincluded in the law for the practical reason of avoiding the drafting of scatteredlegislation in the field of IP.‘‘Inventions’’ are new technical solutions relating to a product, a process or animprovement thereof. This means that any innovation in the field of technology isC. Devonshire-Ellis et al. (eds.), Intellectual Property Rights in China,China Briefing, DOI: 10.1007/978-3-642-15408-9_2,? Asia Briefing Ltd. 20117 patentable. However, it is important that the result of the innovation is somethingmaterially perceivable. That is the meaning of the word ‘‘technical.’’ In order to bepatented an invention must be novel. Patent rights are granted for a period of20 years from the date of filing.‘‘Utility models’’ are new technical solutions related to a product’s shape,structure or a combination thereof, which is fit for practical use. The descriptionclearly indicates that utility models are related to products that can be physicallyperceived. The law excludes the patentability of utility model for processes and allother material that cannot be classified as products like gases and fluids, biologicalmaterials, etc. Utility model rights are granted for a period of 10 years from thedate of filing. Utility models are considered the ‘‘little brother’’ of inventionpatents; it is definitely easier to get approval for a utility model as an in-depthexamination is not carried out.A ‘‘design’’ is any new design for a product’s shape, pattern or combinationthereof, as well as the color and the shape or pattern of a product, which creates anaesthetic feeling and is fit for industrial application. Like in the case of utilitymodels, a design can be granted only for products. Design rights are granted for aperiod of 10 years from the date of filing.2 TrademarksA trademark is any word, phrase, symbol, design, combination of colors, productconfiguration, group of letters or numbers, or combination of these, used by acompany to identify its products or services and distinguish them from theproducts and services of others. The primary purpose of trade marks is to preventconsumers from becoming confused about the source or origin of a product orservice.In practice, fours kinds of trademarks are recognized by the Trademark Law inChina:• general trademarks, in which ‘‘trademarks for goods’’ and ‘‘trademarks forservices’’ are included• collective marks, signs which are registered in the name of bodies, associationsor other organizations to be used by the members thereof in their commercialactivities to indicate their membership of the organizations• certification marks, signs which are controlled by organizations capable ofsupervising some goods or services and used by entities or individual personsoutside the organization for their goods or services to certify the origin, material,mode of manufacture quality or other characteristics of the goods or services• well-known trademarks, marks which have a strong reputation among the rel-evant public in China—where a dispute arises in the procedures of trademarkregistration and the party concerned believes that its trademark constitutes awell-known trademark, it may request the Trademark Office or the Trademark8IPR Laws in China Review and Adjudication Board to determine whether its trademark fulfills thecriteria for a well-known trademark.Three-dimensional trademarks were newly added to Trademark Law in 2001and reflected in Article 8 of the law. In 2009 this Article has been proposed to bechanged to the following, ‘‘Any visual sign capable of distinguishing the goodsand service … including words, devices, letters, numerals, three-dimensionalsymbols, colors, or any combination of the above elements may be applied forregistration of a trademark. Where appropriate, an application for registration of atrademark of sound, smell or motion may be accepted by the TMO. The concreteregulations for registration of such marks shall be released separately… ’’.Advertising slogans can be registered as trademarks if they possess exceptionaloriginality and distinctiveness.In addition, a new Article 34 has been introduced to protect trademarks. It states‘‘A trademark which is identical with or similar to another party’s mark in prioruse in China on identical or similar goods or services shall not be registered, wherethe applicant knows clearly the existence of the latter, due to his contract, businesstransaction, regional or other relation with the owner of the mark in prior use. Atrademark which is plagiarized from another party’s registered mark in respect tonon-identical or dissimilar goods or services shall not be registered, where theregistered one is of salient distinctive character and certain influence, and theplagiarized one is likely misleading for the public.’’The general principle governing trademark applications is that of ‘‘first to apply,first to be served.’’ The valid period of registration is 10 years from the day ofapproval and registration can be renewed for an unlimited number of times. Eachrenewal prolongs the trademark validity of another 10 years from the date ofexpiration of the previous period of validity.It is highly recommended when registering a trademark in China to also registerit in Chinese characters. Not only do Chinese customers recognize a trademarkmore easily in their own language, but a trademark owner also protects the Chinesecharacter trademark from being used by competitors.One should be aware that, unlike in many other countries, the trademark leg-islation does not include any regulation about ‘‘company names.’’ In addition, theadministration responsible for registration of company names is different from thetrademark authorities. This has led to registration by competitors of companynames containing other entities’ trademarks and vice versa.With the rapid expansion of the internet, more and more people have realizedthe importance of domain names. Usually, a company will register their trade-mark or their enterprise name as their domain name—an additional domain nameending ‘‘.cn’’ is often useful for marketing purposes in China. Domain nameregistration follows the principle of ‘‘first come, first served.’’ It is very importantto register the trademark or enterprise name before it is hijacked by others.A simple research of your company name or trademark on the internet will showthe importance of a domain name. The annual fees for registering such a domainname are very low.2Trademarks9 3 CopyrightCopyright is considered a ‘‘natural’’ right because it arises automatically oncreation of an original work or authorship. Original works of authorships can bebooks, plays, musical compositions, audio and video recordings, choreographicworks, motion pictures, filmstrips, TV programs, photographs, paintings, draw-ings, maps, architecture, scale models, sculpture, craft works, jewelry designs,fabric designs, computer programs, databases and even oral speeches and lectures.There is, therefore, no need to register one’s copyright in China in order for it toexist. Since, China is a member of the Berne Convention for the Protection ofLiterary and Artistic Works, the work of a foreign national will be automaticallyprotected in China if he or she is a national of a country which is a member ofBerne, or his or her work has been first published in a Berne member country.Generally, the term of copyright protection is the life of the author plus 50 years.New forms of protection are emerging with respect to IP rights against new formsof infringement through the internet.The copyright owner enjoys various personal and proprietary rights for thework. The neighboring rights under copyright include the rights enjoyed bypublishers, by performers, by record and video makers, and by radio and televisionstations. However, there are certain circumstances under which it is allowed to usea copyright without a license, such as for private studies or research, quoting anappropriate part, for use by teachers, and for performances free of charge.Problems with copyright protection in the manufacturing industry often arise inrespect of two issues:• protection of commercial and product catalogues;• protection of the form and shape of products.The pictures of products or designs and the drawings contained in technical orcommercial catalogues as well as on the internet (e.g. in the official web page ofthe rights holder) are protected by copyright. The reproduction of these picturesand drawings by competitors in their own catalogues or on the internet constitute acopyright infringement that can normally be enforced through the NationalCopyright Administration. The infringer will be ordered to remove the infringingpictures or the layouts from its catalogue or internet. The obligation to removeinfringements of copyright from the internet has been extended to internet serviceproviders. A specific procedure must be followed by the rights holder to enforcehis right through the service provider.The second issue arises when the passing-off of the shape and form of industrialproducts could be considered as a violation of a copyright. This question arises incases where a manufacturer has not timely protected the design of its product inChina through a design patent. The passing-off of the external shape of a product isnot sanctioned in China as an act of unfair competition and therefore the onlyprotection left might be that of copyright. This would imply that the design of thisindustrial product could be considered as a creation of applied art. This is,10IPR Laws in China however, against the wording of both the patent and copyright laws which clearlydefines the forms of protection for the shape respectively of industrial and artisticproducts. In case of industrial products the only protection for their shape is givenby design patents.Software is a literary work and enjoys copyright protection in China and doesnot need a registration to come into existence. However, registration is required asa precondition for filing a lawsuit against copyright infringement. Non-registeredsoftware is virtually a copyright without protection. Generally speaking, the reg-istration of software as copyright is advisable as it provides certain evidence aboutthe authorship and ownership of the copyright. Object of the copyright in case ofsoftware is not only the software as such in the form ready for being used in acomputer, but also all the related documentation which describe the content of thesoftware including the user’s manuals.4 Unfair CompetitionIn January 2007 the Interpretation of the Supreme People’s Court regarding CivilTrials of Unfair Competition Cases was published and is a guidance on how tohandle civil cases involving unfair competition. The law on unfair competitionitself has not been amended since 1993. To make things even more complicated,almost every province in China has its own regulations concerning unfair com-petition. It is a fact that in China, solid protection for intellectual property can onlybe obtained by registering one’s rights. If one does not have any registered patentor design to protect the product, one cannot expect to receive such protection fromthe unfair competition law.The Chinese Unfair Competition Law operates on a general principle that if anact is not defined as an act of unfair competition by the law, it is not an act ofunfair competition at all. Acts of unfair competition are only those explicitlyindicated by the same unfair competition law. Given the fact that there is nospecific norm sanctioning the illegality of ‘‘passing-off,’’ the latter is not protectedunder this law.‘‘Trade secrets’’ are a very broad concept, and may include all the informationand documents that will bring economic benefits to the company and that shouldbe protected by the company. This will include client information, price, design,production methods and procedures, and programs. Trade secrets should not onlybe protected from competitors, but also amongst key personnel of the company.For key personnel in charge of the company’s trade secrets a confidentialityagreement and sometimes also a non-competition agreement are recommended.For all those selling their products to China, it is very important to be aware ofthis difference with legal systems in Europe or the United States. The protection ofproducts with patents and design patents, therefore...

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