On March 19, 2025, the State Council of China published the Regulations on Handling the Foreign-Related IP Disputes (the Regulations), which will become effective on May 1, 2025. The Regulations contain 18 provisions with key points.
The Regulations request the departments under the State Council to handle the jobs related to the foreign related IP disputes, such as: 1) the IP management departments in charge of trademarks, patent, copyright, etc. (“the IP Management Departments”), as well as the commercial department to enhance the guidance and service to citizens and organizations regarding the foreign related IP dispute; 2) the IP Management Departments, the commercial department, and the judicial administrative department, etc. to timely collect and publish foreign IP law information, improve the IP information public service system, and provide foreign IP service information search service; 3) the IP Management Departments, the commercial department to strengthen the tracking of key information on changes in foreign intellectual property laws and systems, conduct analysis and research on typical cases, issue timely risk alerts, and provide the public with early warning on foreign-related intellectual property rights; 4) the IP Management Departments, the commercial department to improve the working institution and working procedures for guiding the handling of foreign-related IP disputes, and provide citizens and organizations with guidance and assistance in dealing with foreign-related IP disputes.
The Regulations also support non-governmental subjects participating in the resolution of foreign-related IP disputes. For example, it supports or encourages: 1) Commercial mediation organizations and arbitration institutions to participate in foreign-related IP disputes, provide citizens and organizations with efficient and convenient ways to resolve foreign-related intellectual property disputes, and encourage and guide citizens and organizations to quickly resolve foreign-related intellectual property disputes through reconciliation, mediation, and arbitration. 2) Law firms, intellectual property service institutions, and other institutions to improve their foreign-related IP service capacity, set up practice abroad through the establishment of branches, joint operations, and other means, and provide citizens and organizations with high-quality and efficient foreign-related intellectual property-related services. 3) Enterprises to set up mutual aid funds for the protection of foreign-related IP rights and insurance institutions to carry out foreign-related IP rights-related insurance business in accordance with the principle of marketization so as to reduce the cost of enterprises to protect their rights. 4) Chambers of commerce, industry associations, cross-border e-commerce platforms and other organizations to build foreign-related IP rights protection and assistance platforms, open service hotlines, and provide consulting, training, and other public welfare services, and so on.
It is also noted that, compared to its draft for public opinions issued last year, the formally published Regulations adds the following new provisions (Article 12-17):
Article 12 is regarding the service of legal document, as well as the investigation and evidence collection, within China, which should be in compliance with the international treaties that China participates in, and laws, such as the PRC Civil Procedure Law, the Law on International Mutual Legal Assistance in Criminal Matters, etc.; whereas Article 13 provides that Chinese participants in a foreign related IP litigation or investigation shall compl with laws and administrative regulations on state secrets, data security, personal information protection, technology export management, judicial assistance, etc., as well as the relevant legal procedure, when such party is requested to provide overseas with evidence or relevant materials.
Article 14 provides the investigation and necessary measures taken by the commercial departments under the State Council regarding matters as follows: 1) the imported goods infringe on intellectual property rights and jeopardize the order of foreign trade; 2) the owner of intellectual property rights has prevented the licensee from challenging the validity of the intellectual property rights in a licensing contract, carried out mandatory blanket licensing, or stipulated exclusive relicensing conditions in the licensing contract, and has jeopardized the order of fair competition in foreign trade; 3) other countries or regions do not grant national treatment to their citizens or organizations in the protection of intellectual property rights, or fail to provide adequate and effective intellectual property rights protection for goods, technologies, or services originating in China.
It is worth noting that Article 16 provides that neither organization nor individual may implement or assist in the implementation of discriminatory restrictive measures taken by foreign countries against Chinese citizens and organizations on the pretext of intellectual property disputes. Otherwise, they may be sued by Chinese citizens or organizations in accordance with the law in the people's court and requested to cease the infringement and compensate for the losses. Since this Article was not included in the draft of the Regulations, more issues need to be specified regarding the application of this Article, including but not limited to, what kind of measures can be defined as “discriminatory restrictive measures taken by foreign countries against Chinese citizens and organizations on the pretext of intellectual property disputes”, how to How to distinguish between a legitimate actions in defense of intellectual property rights and “discriminatory restrictive measures … on the pretext of intellectual property disputes”, and in case of such a lawsuit is brought up under this Article, what should be the burden of proof born by the concerned parties.
In addition, if a foreign country violates international law and the basic norms of international relations, uses disputes over intellectual property rights as a pretext to contain and suppress China, takes discriminatory restrictive measures against Chinese citizens and organizations, and interferes in China's internal affairs, the relevant department of the State Council can include organizations and individuals in a countermeasures list and take corresponding countermeasures and restrictive measures against those that have directly or indirectly involved in formulating, deciding or implementing discriminatory restrictive measures in accordance with the relevant laws, such as the Law on Foreign Relations of the People's Republic of China, the Anti-foreign Sanctions Law of the People's Republic of China (Article 15). Other measures will also be taken in accordance with the relevant laws by said departments in case of using intellectual property disputes to jeopardize China's sovereignty, security, and development interests, as well as abusing the intellectual property rights to exclude or restrict competition or commit unfair competition, and so on (Article 17).
[Comment]
Compared to the draft of the Regulations published last August, the Regulations to be effective has kept most of the original content, and those Articles (Articles 1-11) are mainly regarding 1) enhancing the roles of the relevant departments of the State Council in providing service and guidance in the foreign-related IP disputes, 2) supporting commercial mediation organizations and arbitration institutions participating in resolving the foreign-related IP disputes, 3) encouraging law firms and IP service agencies to enhance their foreign-related service capability, and 4) strengthening the enterprises’ capability, etc.
It is also worth noting that the Regulations adds six new Articles (12-17) which focus on the following two aspects: 1) regulating overseas investigation and evidence collection (Articles 12-13), such as serving documents, investigating, and collecting evidence in accordance with the international treaties concluded by China, as well as the relevant laws; and 2) counteracting unfair treatment (Articles 14-17), such as listing issues that may initiate investigations by the relevant State Council departments, as well as the relevant countermeasures in accordance with the laws.
The Regulations request the departments under the State Council to handle the jobs related to the foreign related IP disputes, such as: 1) the IP management departments in charge of trademarks, patent, copyright, etc. (“the IP Management Departments”), as well as the commercial department to enhance the guidance and service to citizens and organizations regarding the foreign related IP dispute; 2) the IP Management Departments, the commercial department, and the judicial administrative department, etc. to timely collect and publish foreign IP law information, improve the IP information public service system, and provide foreign IP service information search service; 3) the IP Management Departments, the commercial department to strengthen the tracking of key information on changes in foreign intellectual property laws and systems, conduct analysis and research on typical cases, issue timely risk alerts, and provide the public with early warning on foreign-related intellectual property rights; 4) the IP Management Departments, the commercial department to improve the working institution and working procedures for guiding the handling of foreign-related IP disputes, and provide citizens and organizations with guidance and assistance in dealing with foreign-related IP disputes.
The Regulations also support non-governmental subjects participating in the resolution of foreign-related IP disputes. For example, it supports or encourages: 1) Commercial mediation organizations and arbitration institutions to participate in foreign-related IP disputes, provide citizens and organizations with efficient and convenient ways to resolve foreign-related intellectual property disputes, and encourage and guide citizens and organizations to quickly resolve foreign-related intellectual property disputes through reconciliation, mediation, and arbitration. 2) Law firms, intellectual property service institutions, and other institutions to improve their foreign-related IP service capacity, set up practice abroad through the establishment of branches, joint operations, and other means, and provide citizens and organizations with high-quality and efficient foreign-related intellectual property-related services. 3) Enterprises to set up mutual aid funds for the protection of foreign-related IP rights and insurance institutions to carry out foreign-related IP rights-related insurance business in accordance with the principle of marketization so as to reduce the cost of enterprises to protect their rights. 4) Chambers of commerce, industry associations, cross-border e-commerce platforms and other organizations to build foreign-related IP rights protection and assistance platforms, open service hotlines, and provide consulting, training, and other public welfare services, and so on.
It is also noted that, compared to its draft for public opinions issued last year, the formally published Regulations adds the following new provisions (Article 12-17):
Article 12 is regarding the service of legal document, as well as the investigation and evidence collection, within China, which should be in compliance with the international treaties that China participates in, and laws, such as the PRC Civil Procedure Law, the Law on International Mutual Legal Assistance in Criminal Matters, etc.; whereas Article 13 provides that Chinese participants in a foreign related IP litigation or investigation shall compl with laws and administrative regulations on state secrets, data security, personal information protection, technology export management, judicial assistance, etc., as well as the relevant legal procedure, when such party is requested to provide overseas with evidence or relevant materials.
Article 14 provides the investigation and necessary measures taken by the commercial departments under the State Council regarding matters as follows: 1) the imported goods infringe on intellectual property rights and jeopardize the order of foreign trade; 2) the owner of intellectual property rights has prevented the licensee from challenging the validity of the intellectual property rights in a licensing contract, carried out mandatory blanket licensing, or stipulated exclusive relicensing conditions in the licensing contract, and has jeopardized the order of fair competition in foreign trade; 3) other countries or regions do not grant national treatment to their citizens or organizations in the protection of intellectual property rights, or fail to provide adequate and effective intellectual property rights protection for goods, technologies, or services originating in China.
It is worth noting that Article 16 provides that neither organization nor individual may implement or assist in the implementation of discriminatory restrictive measures taken by foreign countries against Chinese citizens and organizations on the pretext of intellectual property disputes. Otherwise, they may be sued by Chinese citizens or organizations in accordance with the law in the people's court and requested to cease the infringement and compensate for the losses. Since this Article was not included in the draft of the Regulations, more issues need to be specified regarding the application of this Article, including but not limited to, what kind of measures can be defined as “discriminatory restrictive measures taken by foreign countries against Chinese citizens and organizations on the pretext of intellectual property disputes”, how to How to distinguish between a legitimate actions in defense of intellectual property rights and “discriminatory restrictive measures … on the pretext of intellectual property disputes”, and in case of such a lawsuit is brought up under this Article, what should be the burden of proof born by the concerned parties.
In addition, if a foreign country violates international law and the basic norms of international relations, uses disputes over intellectual property rights as a pretext to contain and suppress China, takes discriminatory restrictive measures against Chinese citizens and organizations, and interferes in China's internal affairs, the relevant department of the State Council can include organizations and individuals in a countermeasures list and take corresponding countermeasures and restrictive measures against those that have directly or indirectly involved in formulating, deciding or implementing discriminatory restrictive measures in accordance with the relevant laws, such as the Law on Foreign Relations of the People's Republic of China, the Anti-foreign Sanctions Law of the People's Republic of China (Article 15). Other measures will also be taken in accordance with the relevant laws by said departments in case of using intellectual property disputes to jeopardize China's sovereignty, security, and development interests, as well as abusing the intellectual property rights to exclude or restrict competition or commit unfair competition, and so on (Article 17).
[Comment]
Compared to the draft of the Regulations published last August, the Regulations to be effective has kept most of the original content, and those Articles (Articles 1-11) are mainly regarding 1) enhancing the roles of the relevant departments of the State Council in providing service and guidance in the foreign-related IP disputes, 2) supporting commercial mediation organizations and arbitration institutions participating in resolving the foreign-related IP disputes, 3) encouraging law firms and IP service agencies to enhance their foreign-related service capability, and 4) strengthening the enterprises’ capability, etc.
It is also worth noting that the Regulations adds six new Articles (12-17) which focus on the following two aspects: 1) regulating overseas investigation and evidence collection (Articles 12-13), such as serving documents, investigating, and collecting evidence in accordance with the international treaties concluded by China, as well as the relevant laws; and 2) counteracting unfair treatment (Articles 14-17), such as listing issues that may initiate investigations by the relevant State Council departments, as well as the relevant countermeasures in accordance with the laws.