Intellectual Property Right Infringement

An Expert's View about Business Practices in China

Last updated: 22 Feb 2011

8.3 Protection Against Intellectual Property Rights Infringement

China's intellectual property legislation stipulates that infringement of intellectual property rights (IPRs) are dealt with by administrative procedures and legal proceedings. In terms of civil liabilities, the infringer may be ordered to stop the infringing act, eradicate the damage done, make public apologies or compensate for damages. In terms of administrative measures and criminal liabilities, they include warnings, orders to stop the infringing act, confiscation of unlawful gains, fines, and compensation for damages.

When an IPR infringement dispute arises, the interested parties may resort to mediation. If mediation is not a preferred option, or mediation has failed, or one of the interested parties refuses to abide by the outcome of mediation, legal proceedings may be instituted with the people's court. The interested parties may also request the relevant administrative authorities for actions.

8.3.1 Legal Proceedings

When an IPR infringement dispute arises, the infringed party may institute legal proceedings directly with the people's court at the place of the infringer's domicile or where the infringing act takes place.

Under China's current judicial system, intermediate people's courts are courts of first instance for patent infringement cases. Civil cases involving copyright are dealt with by people's courts at above intermediate level. High people's courts can, based on the actual circumstances in the districts under their respective jurisdiction, assign people's courts at lower levels to handle first hearings of civil cases involving copyright disputes.

If an interested party finds that due to emergency circumstances any delay to stop the infringing act may cause irreparable damages to his legitimate rights, he may, before instituting legal proceedings, request the people's court to freeze the assets of the infringer.

In handling IPR infringement cases, the people's court will see to it that the infringer, if convicted, is made to bear civil liabilities for the infringing act. Where the case is so serious as to constitute a crime, the infringer will be prosecuted for his criminal liabilities.

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Posted: 19 February 2011, last updated 22 February 2011

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