Enforcement of intellectual property rights in the People's Republic of China

I I C

Volumn 32, Issue 2, 2001, Pages 141-161

  Xiaohai, Liu ^a  

^a NONE

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EID: 25444501810     PISSN: 00189855     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (96)

1. Cf. in particular, Part III (Art. 41 et seq.) on the enforcement of intellectual property rights.
2. See the overview of the development as a whole in GUO SHOUKANG, "Entwicklung und Perspektiven des geistigen Eigentums in der Volksrepublik China," 1997 GRUR Int. 949 et seq. (with numerous further references);
3. on the beginning of the development, see DIETZ (ed.), "Die Neuregelung des gewerblichen Rechtsschutzes in China" (Weinheim 1988);
4. on the more recent registration practice see SCHEIL & SCHEIL, "Praxis und Probleme der Anmeldung gewerblicher Schutzrechte in der Volksrepublik China," 1996 GRUR Int. 999 et seq.
5. See for details Art. 60 of the Patent Act, Art. 46 of the Copyright Act, Art. 42 et seq. of the Trademark Act, Art. 25 of the Act Against Unfair Competition.
6. 1989 Guowuyuan Gongbao (Official Gazette of the National Council), at 298;
7. German translation in MÜNZEL (ed.), "Chinas Recht" (loose-leaf ed., Hamburg, April 4, 1989/1).
8. See Sec. 44(2) of the Administrative Procedures Act, loc. cit.
9. 1993 Guowuyuan Gongbao 986; German translation in 1994 GRUR Int. 1001.
10. See Sec. 9 of the "Provisions of the State Office for the Administration of Industry and Trade concerning the Prohibition of Actions Infringing Trade Secrets," 1997 China Patents and Trademarks (CPT), No. 1, at 87 (Chinese) and at 89 (English).
11. See Secs. 45 and 46 of the Copyright Act, 1990 Guowuyuan Gongbao 753; German translation in 1990 GRUR Int. 944.
12. Implementing Regulation to the Copyright Act, 1991 Guowuyuan Gongbao 745; German translation in 1991 GRUR Int. 727.
13. See also Sec. 5.5 of the Action Plan concerning the Effective Protection and the Effective Enforcement of Intellectual Property Rights, 1995 Guowuyuan Gongbao 778.
14. See decision of the Shenzhen Intermediate People's Court and the Fuzhou Intermediate People's Court, in YANG JINQI (ed.), "Zui xin zhishi chanquan anli yu chuli zhinan" (Most Recent Intellectual Property Cases and a Guideline to their Treatment), at 467 et seq., 509 et seq. (Peking 1996).
15. 1991 Guowuyuan Gongbao 481; German in MÜNZEL (ed.), "Chinas Recht" (April 9, 1991/1).
16. See Sec. 107 of the "Opinion of the Supreme People's Court concerning a Number of Questions on the Application of the Civil Procedure Art (1992)," 1993 Zuigao Renmin Fayuan Gongbao (Official Gazette of the Supreme People's Court), No. 3, at 70, 78.
17. See Sec. 106, id.
18. See LU GUOQING, "Protection of Intellectual Property," IP ASIA, at 46 (October 1997).
19. See SHU CHI, "Shenli zhishi chanquan anjian suo shiyong de susong chengxu" (The Trial Procedures to Be Applied when Dealing with Intellectual Property Rights), Fahzi Ribao (Journal for the Legal System), at 6 (July 31, 1994).
20. See supra note 13.
21. See Intermediate People's Court of Shanghai, in LIU LU & GAO YAN (eds.), "Minshi susong fa - lijie shiyong yu anli pingxi" (Civil Procedure Act - Interpretation, Application and Case Analysis), at 336 et seq. (Peking 1996).
22. "Provisions of the Supreme People's Court on the Strict Application of the Civil Procedures Act in Judicial Hearings and Decisions concerning Economic Disputes," 1995 Zuigao Renmin Fayuan Gongbao, No. 1, at 18; see Sec. 16.
23. See Lu GUOQING, 1995 Zuigao Renmin Fayuan Gongbao, loc. cit., at 36.
24. See Sec. 3 of the "Reply by the Supreme People's Court to a Number of Questions on the Hearing of Patent Disputes," 1993 Zuigao Renmin Fayuan Gongbao, No. 1, at 27.
25. See supra note 10.
26. See supra note 7.
27. See ANDY SEE, "Protection of Trade Secrets under the Labour Law and the Anti-Unfair Competition Law," IP ASIA, at 43 (October 1997).
28. 1986 Guowuyuan Gongbao 388; German translation in MÜNZEL (ed.), "Chinas Recht" (April 12, 1986/1).
29. See Sec. 54 of the "Provisions of the Supreme People's Court on a Number of Problems in the Hearing of Disputes in the Field of Science and Technology," 1995 Zuigao Renmin Fayuan Gongbao 96. See also the Intermediate People's Court of Foshan, 1995 Zuigao Renmin Fayuan Gongbao 135; the Intermediate People's Court of Xuzhou, Zhongguo Zhuanlibao (Patent Journal of China), at 1 (June 24, 1996);
30. Superior People's Court Tianjin, Renmin Faguanbao (Journal for Judges at the People's Courts), at 1 (January 2, 1997);
31. Superior People's Court of Hubei, Fazhi Ribao (Magazine for the Legal System), at 2 (November 14, 1994).
32. See People's Court of Qingdao, Shidongqu district, Dazhong Ribao (Magazine for the Masses), at 1 (May 16, 1995). In the case decided here, four of the plaintiff's former employees took with them customer information without authorization when they both left the plaintiff's employment. They then competed with the plaintiff using this information at their new place of employment. The court imposed a time-limited restraint on these employees and their new employer, according to which they were not allowed to use the plaintiff's customer information to compete with the plaintiff for three years.
33. See Fazhi Ribao, at 6 (May 18, 1998); an appeal has been filed against this decision to the No. 1 Intermediate People's Court of Beijing.
34. See supra note 26.
35. See WANG LIMING, FANG LIUFANG & GUO MINGRUI, "Minfa xinlun" (New Study of Civil Law), at 486 (Beijing 1986);
36. WANG LIMING & YANG LIXIN, "Zhongguo qinquan xingweifa" (Chinese Criminal Law), at 52 (Beijing 1998).
37. See Secs. 99, 103 and 154 of the "Opinions of the Supreme People's Court on a Number of Questions concerning the Implementing of the General Principles of Civil Law," 1988 Zuigao Renmin Fayuan Gongbao 75; German translation in MÜNZEL (ed.), "Chinas Recht" (April 2, 1988/1).
38. See YANG JINGI, loc. cit. (supra note 11), at 205.
39. See Intermediate People's Court Fuzhou in YANG JINQI, loc. cit., at 239 et seq.
40. See GAO YAN & ZHOU ZHENYI, "Zhuzuoquanfa - lijie shiyong yu anli pingxi" (Copyright Act - Interpretation, Application and Case Analysis), at 283 et seq. (Beijing 1996);
41. YANG JINQI, "Zhuzuoquanfa - lijie shiyong yu anli pingxi" (Copyright Act - Interpretation, Application and Case Analysis), loc. cit., at 772 et seq., 775 et seq.
42. See YANG JINQI, "Zhuzuoquanfa - lijie shiyong yu anli pingxi" (Copyright Act - Interpretation, Application and Case Analysis), loc. cit., at 714 et seq.; the decision referred to here is based on a case in which the infringing party made and sold machines through the unauthorized use of drawings delivered to him subject to an obligation to maintain secrecy; the court ordered the destruction of the unsold machines, since the infringed party had not itself yet manufactured and sold such machines, with the result that there was a greater risk that the resale of the machines would disclose the secret in question.
43. See Superior People's Court of Shaanxi, 1996 Zhishi Chanquan (Intellectual Property), No. 1, at 41;
44. Superior People's Court of Tianjin, 1996 Zhishi Chanquan (Intellectual Property), loc. cit. (supra note 26), at 1;
45. Superior People's Court of Fujian, 1995 Zuigao Renmin Fayuan Gongbau 28; Intermediate People's Court of Foshan, 1996 Zhishi Chanquan (Intellectual Property), loc. cit. (supra note 26), at 134.
46. See Sec. 7(1) of the "Provisions," loc. cit. (supra note 7) and the Superior People's Court of Hubei, loc. cit. (supra note 26), at 2.
47. See 1995 Zuigao Renmin Fayuan Gongbao 133 et seq.
48. See supra note 7.
49. See CHEN YONGSHUN, "Zhuanli susong" (Patent Litigation), at 129 (Beijing 1994).
50. See Intermediate People's Court of Foshan, loc. cit. (supra note 26); Intermediate People's Court of Yuzhou, loc. cit. (supra note 26).
51. See Intermediate People's Court of Beijing, 1995 Zuigao Renmin Fayuan Gongbao 101 et seq.
52. See No. 1 Intermediate People's Court of Beijing, 1997 CPT, No. 4, at 84 et seq. (Chinese), and at 87 et seq. (English).
53. For this reason, BOHNET, "Das Markenrecht in der Volksrepublik China und Russland" 158 (Cologne, etc. 1996), is incorrect to state: "The public apology is specified as a possible form of civil law liability in Art. 134 of the GPC and is expressly laid down in Art. 120 as the legal consequence of infringements of name rights, the rights to one's own image, injurious falsehood and defamation."
54. See WANG LIMING, FANG LIUFANG & GUO MINGRUI, loc. cit. (supra note 30), at 489 et seq.
55. See WANG LIMING, FANG LIUFANG & GUO MINGRUI, loc. cit.; CHEN YONGSHUN, loc. cit. (supra note 40), at 130.
56. See WANG LIMING & YANG LIXIN, loc. cif. (supra note 30), at 56.
57. See Superior People's Court of Heilongjiang, 1995 Zuigao Renmin Fayuan Gongbao 26; and Superior People's Court of Shanghai, 1997 Zuigao Renmin Fayuan Gongbao 24. Interestingly, the Superior People's Court of Heilongjiang applied Sec. 134 of the GPC instead of Sec. 118 to order an infringing party to publish an apology in a newspaper; nor did the Superior People's Court of Shanghai regard it as an error for the Intermediate Court of Shanghai not to apply Sec. 118 alone but in combination with Sec. 134(1) to order the defendant to make a public apology in a newspaper. Sec. 118 of the GPC does not specify apology as a consequence of liability.
58. See Superior People's Court of Beijing, 1996 Zuigao Renmin Fayuan Gongbao 133 et seq.; Superior People's Court of Shanghai, 1997 Zuigao Renmin Fayuan Gongbao 68 et seq.
59. 1996 Zuigao Renmin Fayuan Gongbao 21 et seq.
60. See YANG JINQI, Zuigao Renmin Fayuan Gongbao loc. cit., (supra note 11), at 685.
61. See Sec. 4 of the "Reply," Zuigao Renmin Fayuan Gongbao loc. cit. (supra note 21), at 27.
62. Zuigao Renmin Fayuan Gongbao Loc. cit. (supra note 26), at 133.
63. See Sec. 4(2)(1) of the "Reply," Zuigao Renmin Fayuan Gongbao loc. cit. (supra note 21), at 27.
64. Summary report of the Fourth Consultation Session of the Courts of a Number of Provinces and Towns concerning the Treatment of Cases relating to Intellectual Property Rights, 1997 Zhishi Chanquan (Intellectual Property), No. 5, at 44.
65. Sec. 4(2)(2) of the "Reply," loc. cit., at 27.
66. See People's Court of Shanxi, Jiaocheng district, 1995 Zuigao Renmin Fayuan Gongbao 136 et seq., and YANG JINQI, loc. cit. (supra note 11), at 715.
67. Thus the Superior People's Court of Fujian, loc. cit. (supra note 36), at 29; the No. 1 Intermediate People's Court of Beijing, 1998 Zhuzuoquan (Copyright Law), No. 1, at 44 et seq.; and the report of the Senate for Intellectual Property of the Superior People's Court of Shanghai, loc. cit. (supra note 55), at 44.
68. See Intermediate People's Court of Xuzhou, loc. cit. (supra note 26), at 1.
69. See "Reply" dated November 6, 1985, China Current Laws, Vol. 1, No. 1, at 16 et seq. (Chinese and English).
70. See Sec. 4(2)(3) of the "Reply," loc. cit. (supra note 21), at 27.
71. See Sec. 4(1) of the "Reply," loc. cit.
72. Loc. cit. (supra note 36).
73. Thus the Intermediate People's Court of Nanjing, 1998 Zuigao Renmin Fayuan Gongbao 70.
74. Thus the Superior People's Court of Hubei, loc. cit. (supra note 26), at 2.
75. See Intermediate People's Court of Beijing, loc. cit. (supra note 42), at 101 et seq.; and BOHNET, loc. cit. (supra note 44), at 156. Likewise the Senate for Intellectual Property of the Superior People's Court of Shanghai, loc. cit. (supra note 55), at 43.
76. See Superior People's Court of Beijing, loc. cit. (supra note 49), at 139; Intermediate People's Court of Beijing, YANG JINQI (ed.), loc. cit. (supra note 11), at 955 et seq.
77. Thus the Superior People's Court of Hubei, loc. cit. (supra note 26), at 2, in a case of an infringement of trade secrets. See also Superior People's Court of Shanghai, 1996 Zuigao Renmin Fayuan Gongbao 66 et seq. - Portrait of Mao Zedong, 29 IIC 722 (1998), with comment by DIETZ, in a case of the application of a forged signature by a graphic artist to a painting not originating from him, and the painting's subsequent auction. In the opinion of the court, this led to a serious infringement of the artist's copyright and to material and mental damage. Although the court did not mention any specific items of damages, the attorney's costs in this case in fact represented the largest item of material damages. See also People's Court of Beijing, Haidian district, 1995 Zuigao Renmin Fayuan Gongbao 99 et seq. - CDW software, in a software infringement case, in which the plaintiff claimed damages of one million yuan, after the infringing party had sold 60 programs at a price of Yuan 600 each, with a total revenue of Yuan 36,000. In the opinion of the court, there had been a deliberate and serious infringement of copyright; the amount of damages was set at Yuan 56,000 in light of the circumstances and the consequences of the infringement. The court apparently also took into account attorney's costs.
78. See Superior People's Court of Beijing, loc. cit. (supra note 49), at 139; Intermediate People's Court of Nanjing, loc. cit. (supra note 64), at 70.
79. Act concerning the Protection of the Rights and Interests of Consumers, 1993 Guowuyuan Gongbao 1160 et seq.
80. See SONG RUFENG, Fazhi Ribao, at 6 (May 22, 1994).
81. See WANG LIMING, Faxue Yanjiu (Legal Research), No. 2, at 67, 79 (1997).
82. See Fazhi Ribao, at 2 (June 1, 1997).
83. See YANG JINQI, loc. cit. (supra note 11), at 87 et seq. (with comment).
84. For a different opinion, ZHENG CHENSI, 1993 CPT, No. 3, at 74.
85. According to Sec. 64(1) of the CPA, the People's Court itself must examine and collect the evidence that the parties and their attorneys cannot collect themselves for objective reasons, or that the People's Court regards as necessary for dealing with the case.
86. See Senate for Intellectual Property of the Superior People's Court of Shanghai, loc. cit. (supra note 55), at 43.
87. Id.
88. Id. at 44.
89. Id.
90. Id.
91. See Sec. 13 of the CPA, according to which the parties are entitled to dispose of their civil rights and litigation rights within the framework laid down by the law.
92. See inter alia 1996 Zuigao Renmin Fayuan Gongbao 75.
93. See Sec. 2 of the "Announcement by the Supreme People's Court concerning the Further Reinforcement of Judicial Protection of Intellectual Property Rights," 1994 Zuigao Renmin Fayuan Gongbao 139; and the Superior People's Court of Hubei, loc. cit. (supra note 26), at 2.
94. See also the Superior People's Court of Hubei, loc. cit.
95. 1997 Guoeuyuan Gongbao 457 et seq.
96. 1996 Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui Gongbao 246.