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On 17 May 2023, the European Commission issued a new biennial report looking at those non-EU countries that the Commission feels require priority attention with regards to the protection and enforcement of intellectual property rights. China was listed once again as “Priority 1”, followed by India and Turkey as “Priority 2”, and then Argentina, Brazil, Ecuador, Indonesia, Malaysia, Nigeria, Saudi Arabia and Thailand as “Priority 3” countries.
The Commission has recognised that China has continued to improve its systems for the protection and enforcement of intellectual property:
“China has continued to strengthen its IPR protection through different measures, following the institutional and judicial reforms carried out in preceding years, as reported in 2021. This included the introduction of [more] specialised IP courts or tribunals and the creation of a specialised IP court as part of the Supreme People’s Court (SPC). China has also continued to make substantial efforts to review and update its legislation to improve the IPR protection and enforcement, for example through the changes to its civil procedure law and criminal law, the copyright law, patent law, trademark law, unfair competition law and e-commerce law. Many new judicial interpretations have been issued as guidance for enforcement and litigation, for example judicial interpretation on punitive damages. Importantly, China has joined the Hague Agreement on the International Registration of Industrial Designs.”
However, the report has certainly noted that stakeholders continue to point to areas that they would like to see improved:
“Stakeholders continue to report a number of important concerns. Some of the concerns relate to the lack of clarity of legal provisions and the need for specific clarifications to increase legal certainty and reduce the margin of discretion of authorities in the practical implementation of laws and regulations. They continue to stress the importance of non-discriminatory implementation of the new rules in practice. Stakeholders also continue to raise concerns about transparency in court decisions and the inconsistency of the court decisions among different provinces across China. Whereas useful guidance has been provided in several cases, including by the SPC, more coherence is needed, in particular at local level where the courts are, for example, reported to provide for lower penalties or favour local stakeholders.”
The report goes into detail regarding different types of intellectual property rights, noting that concerns regarding trademarks include the large number of bad faith filings that seem to be able to sail through examination with ease, whilst in relation to plant variety rights, concerns have been raised that the examiners are seeking too much confidential information during the DUS testing process. We can certainly relate to both of these issues, and can see how these areas can be improved.
As to enforcement, the report notes that despite the continued efforts by the Chinese government to fight counterfeiting and piracy, including through a number of targeted actions reported by the Chinese authorities, these remain a major concern. According to the joint EUIPO and DG TAXUD report on the EU enforcement of IPR, from December 2022, China is still ranked number source of counterfeits, being responsible for 70% of the world's counterfeits.
The Commission has recognised that China has continued to improve its systems for the protection and enforcement of intellectual property:
“China has continued to strengthen its IPR protection through different measures, following the institutional and judicial reforms carried out in preceding years, as reported in 2021. This included the introduction of [more] specialised IP courts or tribunals and the creation of a specialised IP court as part of the Supreme People’s Court (SPC). China has also continued to make substantial efforts to review and update its legislation to improve the IPR protection and enforcement, for example through the changes to its civil procedure law and criminal law, the copyright law, patent law, trademark law, unfair competition law and e-commerce law. Many new judicial interpretations have been issued as guidance for enforcement and litigation, for example judicial interpretation on punitive damages. Importantly, China has joined the Hague Agreement on the International Registration of Industrial Designs.”
However, the report has certainly noted that stakeholders continue to point to areas that they would like to see improved:
“Stakeholders continue to report a number of important concerns. Some of the concerns relate to the lack of clarity of legal provisions and the need for specific clarifications to increase legal certainty and reduce the margin of discretion of authorities in the practical implementation of laws and regulations. They continue to stress the importance of non-discriminatory implementation of the new rules in practice. Stakeholders also continue to raise concerns about transparency in court decisions and the inconsistency of the court decisions among different provinces across China. Whereas useful guidance has been provided in several cases, including by the SPC, more coherence is needed, in particular at local level where the courts are, for example, reported to provide for lower penalties or favour local stakeholders.”
The report goes into detail regarding different types of intellectual property rights, noting that concerns regarding trademarks include the large number of bad faith filings that seem to be able to sail through examination with ease, whilst in relation to plant variety rights, concerns have been raised that the examiners are seeking too much confidential information during the DUS testing process. We can certainly relate to both of these issues, and can see how these areas can be improved.
As to enforcement, the report notes that despite the continued efforts by the Chinese government to fight counterfeiting and piracy, including through a number of targeted actions reported by the Chinese authorities, these remain a major concern. According to the joint EUIPO and DG TAXUD report on the EU enforcement of IPR, from December 2022, China is still ranked number source of counterfeits, being responsible for 70% of the world's counterfeits.