Frequently Asked Question
A simple and quick overview of the most frequently asked questions on trademark, patent, copyright, customs etc.
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Why it is advisable to conduct trademark availability search before filing?
Conducting a preliminary trademark search before filing application with China Trademark Office (CTMO) helps increase the chances of success for obtaining the final registration. CNPTlaw provides free identical search which reveals prior identical marks as the searched mark in the report. We also provide a deep search which provides a detailed search report with analysis of registration availability, with certain fees. The detailed report includes: 1. Analysis on whether the searched mark complies with China Trademark Law (inherent registrability); 2. Citation of prior identical and similar marks; 3. Methods to overcome the cited marks and improve the chances of success. In the meanwhile, we also provide you trademark search with the competitor’s mark to cope with your business plan in China.
What is a design patent?
A design patent refer to the design of industrial products. Design patent is not a technical solution, which makes it different with invention or utility design.
According to Article 2 of Rules for the Implementation of the Patent Law of the People’s Republic of China, “Design” as mentioned in the Patent Law means any new design of a product’s shape, pattern or a combination thereof, as well as its combination with the color and the shape or pattern of a product, which creates an aesthetic feeling and is fit for industrial application.
Based on above article, a design patent shall meet the following requirements:
- Design of the shape, pattern, color or combination thereof;
- Design of the appearance of the product;
- Rich in aesthetic appeal;
- Fit for industrial application.
What is “Utility Model”? What can be applied as a Utility Model Patent?
“Utility Model” as mentioned in the Patent Law means any new technical solution relating to a product’s shape, structure, or a combination thereof, which is fit for practical use. Different from invention patent, Utility Model Patent lies in: 1. Utility model is limited to product with certain shape. A method or a product without a fixed shape are not applicable; 2. Utility model focuses on the practicability rather than creativity.
Product shape refer to the space shape that can be observed from outside. Technical solution relating to a product’s shape could refer to three-dimensional space form such as improvement on the shape of cam and cutter and also two-dimensional space form such as improvement on the shape of fracture section of extrudation.
Product structure refers to the arrangement, organization and relations of the composing parts. Product structure can be mechanical structure or line structure. Mechanical structure refers to the relation of relative position, connection and necessary mechanical cooperation of the accessories. Line structure refers to the confirmed relation of connection for components.
Composite layer could be regarded as structure of product. Carburized layer and oxide layer belong top composite layer structure.
What is invention patent?
“Invention” as mentioned in the Patent Law means any new technical solution relating to a product, a process or an improvement thereof. The characteristics of an invention patent are: 1. Invention is a new technical solution which uses natural rules to solve problems in production, scientific research and experiment and is composed of several technical characteristics; 2. Invention can be divided to product invention and method invention. Product invention refers to the object created by human and method invention refers to the methods created by adopting natural rules. Method invention can be divided to manufacture method and operation method. In addition, invention patent protected by patent law could also be improvements on the current product or method.
Inventions for which patent rights are to be granted shall be ones which are novel, creative and of practical use.
Novelty means that the invention or utility model concerned is not an existing technology; no patent application is filed by any unit or individual for any identical invention or utility model with the patent administration department under the State Council before the date of application for patent right, and no identical invention or utility model is recorded in the patent application documents or the patent documentations which are published or announced after the date of application.
Creativity means that, compared with the existing technologies, the invention possesses prominent substantive features and indicates remarkable advancements, and the utility model possesses substantive features and indicates advancements.
Practical use means that the said invention or utility model can be used for production or be utilized, and may produce positive results.
What is Intellectual Property litigation?
Intellectual Property litigation refers to litigation carried out within the people’s court involving IP matters, including civil litigation, administrative litigation and criminal litigation.
What are the types of Intellectual Property civil litigation?
1) Intellectual Property infringement litigation
Infringement on the civil rights as provided for in the Civil Law as well as unfair competition behaviors;
2) Intellectual Property ownership litigation
Dispute over the ownership of intellectual property rights;
3) Intellectual Property contract litigation
Dispute caused by acquisition, assignment, use of intellectual property. Somehow overlap with IP ownership litigation.
What are the types of Intellectual Property administrative litigation?
1) Caused by administrative decisions made by state administrative organs. Any party who is dissatisfied with the decisions made by administrative organs for confirming the ownership of intellectual property rights could file review application with administrative adjudication organs (namely Patent Reexamination Board of SIPO and Trademark Review and Adjudication Board). If again dissatisfied with the review decision, the concerned party could file an administrative litigation;
- Caused by specific administrative act made in accordance with related IP laws, including administrative decision, license, penalty carried out in the process of confirmation of ownership, assignment and use of intellectual property
- Cased by administrative enforcement act by local IP managing organs. The concerned party could file a litigation against the administrative penalty or meditation decision made by local IP organs.
What is administrative litigation concerning decisions on ownership of trademark?
It refers to administrative litigation filed with the people’s court where the concerned party or interested party is not satisfied with the trademark refusal review decision, opposition review decision of rejecting a trademark, cancellation review decision, invalidation decision as well as invalidation review decision made by Trademark Review and Adjudication Board (TRAB).
What intellectual rights could be applied for recordal with the Chinese customs?
According to Article 2 of PRC Customs Protection of Intellectual Property Rights Regulations, “customs protection of intellectual property rights” refers to the implementation of protection by customs of the exclusive rights to use a trademark, copyrights and the rights related thereto, and patent rights that are related to import and export goods and that are protected by PRC laws and administrative regulations. So the following IP rights could be applied for recordal:
- Trademark approved by China Trademark Office (CTMO), except service mark;
- International trademark approved by World Intellectual Property Organization (WIPO) and extended to China, except service mark;
- Invention, Utility model and design patent granted by State Intellectual Property Office (SIPO) including those granted by the previous China Patent Office;
- Copyright and Copyright related rights enjoyed by citizen or organization of members of Berne Convention for the Protection of Literary and Artistic Works
How long it takes to register trademark in China?
According to Trademark Law of China, the examination of trademark application shall be finished within 9 months. Trademarks which are preliminarily approved by China Trademark Office (CTMO) will be published for opposition for 3 months. If no trademark opposition is received by CTMO, the applied mark will be registered. Generally speaking, for a smooth trademark application, the whole procedures will take around 13 to 15 months.