A “two-track system of judicial protection and administrative protection ” is adopted in China for protecting the IP rights, i.e., when the legitimate right of the right owner is infringed, the following two ways are available for securing the protection:

Way I: Judicial protection, i.e., to institute legal proceedings in the people’s court;
Way II: Administrative protection, i.e., to request the administrative authority for IP affairs to handle the matter.
The Judicial Way: to institute legal proceedings in the people’s court having such jurisdiction.

Courts in China are at four levels: the basic people’s court, the intermediate people’s court, the higher people’s court and the supreme people’s court. In China, the people’s court practices the system of two instances, the first and the final. If the parties concerned are not satisfied with the decision made by the court of first instance, they may appeal to the court of second instance. The decision made by the court of second instance is final.

There are 42 courts of first instance having jurisdiction over patent infringement cases throughout the country, including 7 intermediate people’s courts in Beijing, Shanghai, Tianjin and Chongqing, intermediate people’s courts in the capital cities of the 27 provinces and autonomous regions, intermediate people’s courts in the 4 special economic zones of Shenzhen, Zhuhai, Shantou and Xiamen, and intermediate people’s courts in Dalian, Qingdao, Fushan and Wenzhou, which were designated by the Supreme People’s Court. The higher people’s court of each province, municipality and autonomous regions is the court of second instance.

The courts of first instance having jurisdiction over trademark and copyright infringement cases are generally basic people’s courts in the locality where the infringement takes place, while courts of second instance are corresponding people’s courts at higher level.

For those cases, which involve huge amount of litigation object or great social impact, the court of first instance for handling trademark and copyright infringement cases may be an intermediate people’s court with the corresponding court at higher level as the court of second instance.

When the court considers, upon examination, that infringement is established, it will make the decision to order the infringer to cease the infringing act, compensate for the damage and eliminate bad effects. The parties concerned must abide by the judicial decision of final effect. If any party refuses to do so, the opposite party may approach the people’s court for compulsory execution, or the case may be directly transferred by the judge to the executor for execution.

The Administrative Way: to request the administrative authority for IP affairs in the locality where the infringement takes place to handle the matter.

Administrative authority for IP affairs in the locality where the infringement takes place may be requested for handling patent infringement disputes.

The regulations for handling patent infringement disputes of various local administrative authorities for IP affairs may be found in relevant implementing rules promulgated by these authorities.

Take Beijing as an example, the following conditions shall be fulfilled for requesting the handling of patent infringement disputes:
( I ) The party who files the request shall be an entity or individual having direct interest with the patent dispute;
( II ) The requested party shall be definite;
( III ) The requested item, fact and reason shall be stated in detail;
( IV ) The residence of the requested party or the locality where the infringing act takes place shall be within the jurisdiction of the Administrative Authority for IP Affairs of Beijing;
( V ) The right to apply for a patent or the patent right shall be valid when the dispute takes place;
( VI ) The request shall be filed within the prescription as provided by law;
( VII ) Any party concerned has not instituted legal proceedings with the people’s court for the patent dispute.

Administration for industry and commerce in the locality where the infringement takes place may be requested for handling trademark infringement disputes.

The right owner may request the administration for industry and commerce at or above the county level to handle the infringing act on the exclusive rights to the use of a registered trademark. The administration for industry and commerce has the power to order the infringer to cease the infringing act immediately and compensate for the damage of the infringed. The amount of compensation shall be the amount of the profit that the infringer has earned as a result of the infringement during the period of the infringement, or the losses the infringed has suffered as a result of the infringement during the period of the infringement. Where the infringement on the exclusive rights to the use of a registered trademark does not constitute a crime, the administration for industry and commerce may impose a fine.

As compared with the judicial protection, the administrative protection for trademark infringement dispute is featured by its high efficiency. This can be seen from the number of the cases received. The number of cases received by administrative departments for industry and commerce at various levels amounts to about 90% of the total. In particular, as far as the measures taken to handle the cases are concerned, the administration for industry and commerce has the power to order the infringer to cease the infringing act immediately. Besides, normally, a shorter period of time is needed for the administration for industry and commerce to decide to impose the administrative punishment as compared with the time needed for a court to make its decision. Even if the case in question is very complicated, and instructions shall be obtained from administration at a higher level, the efficiency is still high as administrations for industry and commerce at various levels are working within the same system.

Administrative department for copyright in the locality where the infringement takes place may be requested for handling copyright infringement disputes.

The competent authorities for handling copyright infringement disputes, which are responsible for imposing administrative punishment for infringement on copyright, are the National Copyright Administration and the local copyright administrations. If the party requesting the administrative punishment for foreign-related infringement is a foreign citizen, legal person or entity which is not a legal person, he or it shall appoint an agent designated by the National Copyright Administration to file the request.

Lian & Lien IP Attorneys is qualified to represent foreign clients in the above-mentioned IP litigation, arbitration and mediation of patent, trademark and copyright infringement cases, in monitoring IP infringement acts, in conducting infringement investigation and evidence collection, and also in requesting administrative handling and claiming infringement compensation.