Measures for the Protection of Intellectual Property Rights of Exhibitions
Measures for the Protection of Intellectual Property Rights during Exhibitions is reviewed and approved by Ministry of Commerce, General Administration of Industry and Commerce, National Copyright Administration and State Intellectual Property Office, and will be enforced from Mar. 1st, 2006.
Chapter I General Provisions
Article 1 These Measures are formulated in accordance with the Foreign Trade Law of the People’s Republic of China, the Patent Law of the People’s Republic of China, the Trademark Law of the People’s Republic of China, and the Copyright Law of the People’s Republic of China as well as the relevant administrative regulations for the purpose of intensifying the protection of intellectual property rights during exhibitions, safeguarding the order of the exhibition industry and promoting the sound development thereof.
Article 2 These Measures shall apply to the protection of relevant patents, trademarks and copyrights in all kinds of exhibitions, trade fairs, expositions, commodity fairs and shows involving economic and technical trade held within the territory of the People’s Republic of
Article 3 The administrative department of exhibitions shall intensify the coordination, supervision, examination of the protection of intellectual property rights during exhibitions and safeguard the normal trading order therein.
Article 4 An exhibition sponsor shall safeguard the legitimate rights and interests of the holders of intellectual property rights according to law. An exhibition sponsor shall, when inviting investment and canvassing exhibitions, intensify the protection of intellectual property rights for the exhibitors as well as the examination of the status of intellectual property rights of the items on exhibition (including items on display, exhibition boards and relevant publicity materials, etc.). During an exhibition, the sponsor shall be actively cooperative in the protection of intellectual property rights of the administrative department concerned.
An exhibition sponsor may intensify the protection of intellectual property rights by concluding a clause or contract with exhibitors on the protection of intellectual property rights.
Article 5 An exhibitor shall participate an exhibition according to law, shall not violate the intellectual property rights of any other person, and shall be cooperative in the investigation made by the administrative department of intellectual property rights or judicial department.
Chapter II Treatment for Complaints
Article 6 Where an exhibition lasts for more than three days (including three days) and if the administrative department of exhibitions thinks it necessary, the exhibition sponsor shall establish an office for handling the complaints on intellectual property rights during the exhibition. Where such office is established, the administrative department of intellectual property rights at the area the exhibition is held shall dispatch their staffs to station therein and handle the case of infringement according to law.
As for the exhibition without an office for complaint, the administrative department of intellectual property rights at the locality shall intensify the guidance for and supervision over the protection of intellectual property rights during the exhibition as well as the handling of relevant cases therein. An exhibition sponsor shall publicize the name of contact persons and contact information of the administrative department of intellectual property rights at the locality of the exhibition in a marked place of the exhibition venue.
Article 7 The office for the complaints on intellectual property rights of an exhibition shall be comprised of the staffs from the sponsor of the exhibition, the administrative department of exhibitions, the administrative department of intellectual property rights in charge of patents, trademarks, and copyrights and shall perform the following functions and duties:
(1) Receiving complaints from the holders of intellectual property rights and suspending any exhibition item suspected of infringement on intellectual property rights during the exhibition;
(2) Transferring the relevant complaint materials to the relevant administrative department of intellectual property rights;
(3) Coordinating, supervising and urging the treatment for complaints;
(4) Carrying out statistical analysis on the information regarding the protection of intellectual property rights during the exhibition; and
(5) Any other relevant issues.
Article 8 An holder of intellectual property rights may complain to the office for complaints on intellectual property rights during an exhibition or directly to the administrative department of intellectual property rights. Whoever takes a complaint to the office for the complaints should submit following materials:
(1) A legitimate and effective certificate of the ownership of intellectual property rights: where any patent is involved therein, the patent certificate, the text of patent announcement, the credential of the patent owner, the certification on the legal status of the patent shall be submitted; where any trademark is involved therein, the certification documents of trademark registration shall be submitted, which shall be confirmed by the complaints by affixing a seal, and the credential of the trademark owner shall be submitted as well; where any copyright is involved therein, the certification of copyright and the credential of the copyright owner shall be submitted;
(2) The basic information of the person being suspected of any infringement;
(3) The explanations and evidence for any suspected infringement; and
(4) Where an agent is entrusted to take a complaint, the relevant trust deed shall be submitted.
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Article 10 Where a complainant causes any losses to the relevant respondent by submitting any false complaint material or by any other fabricated complaint, he should bear legal liabilities.
Article 11 The office for the complaints on intellectual property rights of an exhibition should transfer the complaint materials as prescribed in Article 8 of these Measures within 24 hours after receiving them.
Article 12 Where any local administrative department of intellectual property rights receives a complaint or claim, it shall inform the exhibition sponsor and the relevant respondent to the complaint or claim in time.
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Article 14 Where a respondent to a complaint or claim submits his Statement of Defense, the local administrative department of intellectual property rights shall make a decision thereon and deliver it to the two parties concerned in time, unless any necessary further investigation is required. Where a respondent to a complaint or claim fails to submit his Statement of Defense within a time limit, it shall not influence the local administrative department of intellectual property rights to make a decision.
Article 15 Where an exhibition is concluded, the relevant administrative department of intellectual property rights shall notify the exhibition sponsor of the relevant decision on treatment in time. The sponsor shall do the works of statistical analysis well for the protection of intellectual property rights during the exhibition and report the relevant information to the administrative department of intellectual property rights of the exhibition in time.
Chapter III Patent Protection during Exhibition
Article 16 Where any office for the complaints on intellectual property rights needs the assistance of any local intellectual property bureau, the local intellectual property bureau shall be cooperative actively and participate in the protection of intellectual property rights during the exhibition. The local intellectual property bureau may carry out following works during the exhibition:
(1) Accepting a complaint of being suspected infringement on intellectual property rights transferred by the office for the complaints on intellectual property rights in the exhibition and handling it according to the relevant provisions of law and regulations for patent;
(2) Accepting a claim of treatment for any dispute over suspected infringement on patent relating to any exhibits and handling it according to the provisions of Article 57 of the Patent Law; and
(3) Accepting tip-offs on any exhibited item that is suspected of passing off the patent of others or imitating a patent, or investigating into and punishing any activities of passing off the patent of others or imitating a patent according to the relevant provisions of Articles 58 and 59 of the Patent Law.
Article 17 Under any of the following circumstances, the local intellectual property bureau may not accept and handle any complaint of patent infringement or claim for treatment:
(1) Where a complainant or claimant has filed a litigation concerning infringement on patent with the people’s court;
(2) Where any patent is in the procedures for declaring invalidation of patent right;
(3) Where any dispute over the ownership of a patent is subject to the trial procedures of the people’s court or to the mediation procedures of the administrative department of patent; or
(4) Where any patent has been terminated and its owner is attempting to resume the patent.
Article 18 When notifying the respondent to a complaint or claim, the local intellectual property bureau shall conduct instant investigation to obtain evidence, consult and copy the relevant documents relating to the case, inquire of the parties concerned, carry out on-the-spot inspection by taking a photograph or video camera shooting, or may collect evidence by sampling.
The local intellectual property bureau shall, when collecting evidence, make relevant transcripts that shall be signed and affixed the seal by relevant handlers and parties concerned under investigation for evidence collection. Where any party concerned under investigation for evidence collection refuses to put his signature or seal on the relevant transcripts, the reason shall be indicated in the transcripts. Where any other person is on the spot, the very person may as well sign his signature on the relevant transcripts.
Chapter IV Trademark Protection during an Exhibition
Article 19 Where the office for the complaints during an exhibition needs the assistance of the local industrial and commercial administrative department, the local industrial and commercial administrative department shall be actively cooperative and participate in the protection of intellectual property rights during the exhibition. The local industrial and commercial administrative department may undertake the following works during the exhibition:
(1) Accepting complaints of suspected infringement on trademark transferred by the office for the complaints of the exhibition and handling them according to the relevant provisions of law and regulations for trademark;
(2) Accepting the complaints of infringement on the right to the exclusive use of trademark as prescribed in the provisions of Article 52 of the Trademark Law; and
(3) Investigating into and handling any case involving trademark irregularity according to its functions and power.
Article 20 Under any of the following circumstances, the local industrial and commercial administrative department may refuse to accept and handle any complaint or claim concerning infringement on the right to the exclusive use of trademark:
(1) Where a complainant or claimant has filed a litigation of infringement on trademark with the people’s court; or
(2) Where any right to the exclusive use of trademark has been invalidated or cancelled.
Article 21 The local industrial and commercial administrative department may, after deciding to accept any complaint or claim, investigate into and handle it according to the relevant provisions of law and regulations on trademark.
Chapter V Copyright Protection during Exhibition
Article 22 Where an office for the complaints of an exhibition needs the assistance of the local copyright administrative department, the local copyright administrative department shall be actively cooperative and participate in the protection of intellectual property rights during the exhibition. The local copyright administrative department may undertake the following works during the exhibition:
(1) Accepting complaints of suspected infringement on copyright transferred by the office for the complaints of the exhibition and handling them according to the relevant provisions of law and regulations on copyright; and
(2) Accepting the complaints of infringement on copyright as prescribed in the provisions of Article 47 of the Copyright Law and giving a punishment according to the relevant provisions of the Copyright Law.
Article 23 The local copyright administrative department may, after accepting a complaint or claim, adopt the following means to collect evidence:
(1) Consulting and copying the documents, archives, account books or any other written materials relating to any suspected infringement;
(2) Collecting evidence by sampling any duplicate suspected of infringement; and
(3) Registering and preserving any duplicate suspected of infringement.
Chapter VI Legal Liabilities
Article 24 Where the local administrative department of intellectual property rights believes the claim for suspected infringement on intellectual property right is tenable, it should punish the exhibitor concerned together with the administrative department of exhibitions according to law.
Article 25 Where the local administrative department of intellectual property rights believes that a claim for the treatment of suspected infringement on any invention or new utility model is tenable, it should make the decision according to the provisions of paragraph 1 of Article 11 of the Patent Law about prohibiting promised sale as well as the provisions of Article 57 of the Patent Law about ordering the infringer to stop his infringement immediately, instructing the respondent to withdraw all the exhibited items of infringement, destroy all the publicity materials about the exhibited items of infringement, and change the exhibition board of introducing the infringed exhibited items.
Where the local administrative department of intellectual property rights believes that a claim for the treatment of suspected infringement on any patent of exterior design, by which the respondent sells his items on exhibition, is tenable, it shall make a decision according to the relevant provisions of paragraph 2 of Article 11 of the Patent Law on prohibited sales or Article 57 of the Patent Law on ordering the infringer to stop his infringement immediately, ordering the respondent to withdraw any exhibited item of infringement from the exhibition.
Article 26 Where anyone fabricates any other’s patent or fabricates any unpatented product as patented one, or fabricates any non-patented method as patented method, the local intellectual property bureau shall give a punishment according to the provisions of Articles 58 and 59 of the Patent Law.
Article 27 Where the local industrial and commercial administrative department believes that a claim for treatment of any infringement on trademark is tenable, it shall give a punishment according to the relevant provisions of the Trademark Law and the Regulations for the Implementation of the Trademark Law, etc..
Article 28 Where the copyright administrative department believes that a claim for treatment of any infringement on copyright and related rights is tenable, it shall give a punishment according to the provisions of Article 47 of the Copyright Law, confiscating, destroying the relevant exhibited items of infringement and changing the exhibition boards of introducing to exhibited items of infringements.
Article 29 Where, upon investigation, the people’s court or the administrative department of intellectual property rights has ruled that an infringement exist or makes a decision that has taken legal effect regarding any exhibited item under complaint or claim of infringement, the local administrative department of intellectual property rights may directly make a decision how to handle it according to the provisions prescribed in Article 26, 27, 28 or 29.
Article 30 Where a claimant pleads not only to prohibit an infringing exhibition conducted by the respondent to the claim but also any other infringement on intellectual property rights committed by the said respondent, the local administrative department of intellectual property rights may handle the suspected infringement that occurs within its jurisdictions according to the relevant provisions of law, regulations and rules on intellectual property rights.
Article 31 Where any infringement committed by an exhibitor exists, the administrative department of exhibitions may make an announcement to the exhibitor concerned. Where any exhibitor commits any infringement for more than twice consecutively, the exhibition sponsor shall prohibit the said exhibitor from taking part in the next exhibition.
Article 32 Where a sponsor fails to fulfill its obligation regarding the protection of intellectual property rights during an exhibition, the administrative department of exhibitions shall give a warning thereto and disapprove any application thereof for holding any relevant exhibition again.
Chapter VII Supplementary Provisions
Article 33 Where any case hasn’t been concluded at the end of an exhibition, the relevant facts and evidence of the case may be confirmed by the exhibition sponsor and shall be transferred, by the administrative department of intellectual property rights at the locality of the exhibition within 15 workdays, to the administrative department with jurisdiction of intellectual property rights for treatment according to law.
Article 34 “Administrative department of intellectual property rights” in terms of these Measures refers to the administrative departments of patent, trademark and copyright. “Administrative department of exhibitions” in terms of these Measures refers to the department in charge of examination and approval or registration of exhibitions.
Article 35 These Measures shall come into force as of March 1, 2006.