Action Plan to Protect the IPRs of Foreign-invested Enterprises
(Source: ZY Partners)
On September 8, 2017, twelve authorities, including the Office of the National Leading Group for Crackdown on the Infringement of IP Rights and the Production and Sale of Counterfeit and Shoddy Goods, the State Intellectual Property Office (“SIPO”), the Ministry of Public Security (“MPS”), the Ministry of Agriculture, the Ministry of Commerce (“MOFCOM”), General Administration of Customs (“GAC”), the State Administration for Industry & Commerce (“SAIC”), the State Administration of Press, Publication, Radio, Film and Television, the State Forestry Administration, the State Post Bureau, the Supreme People’s Court and the Supreme People’s Procuratorate, have jointly issued the Action Plan for the Protection of Intellectual Property Rights Owned by Foreign-invested Enterprises (the “ActionPlan”).
According to the Action Plan, the authorities will conduct a special campaign from September to December 2017 to attack IP infringement upon foreign investors. It is the first time China has started a nationwide campaign to protect foreign investors’ IP rights. This campaign is part of the government’s broader effort to attract foreign investment. It is in large part responding to the State Council’s Circular  No. 39 (the Notice on Measures to Promote Foreign Investment Growth) policy initiative, which is intended to further liberalize foreign investment, and calls on China to actively utilize foreign capital in an optimal way.
The Action Plan proposes 11 missions, and mainly takes the following measures to protect IP rights of foreign-invested companies:
l Cracking down infringement of trade secrets and patent rights;
l Fighting trademark squatting and free-riding of foreign famous brands;
l Combating copyright infringement and piracy on the Internet;
l Strengthening the customs protection of IPRs for certain products with large import/export volume;
l Strengthening the criminal law enforcement and judicial protection of IPRs for certain industries with severe piracy problems.
The campaign assigns each department a particular focus. For example, the SAIC takes a leading role in trademark infringement; the MPS is in charge of investigation of criminal offences; and the GAC focuses on IP infringement in the import/export process. Meanwhile, the Supreme Procuratorate and the Supreme Court should facilitate the prosecution and trial of relevant IP cases.
Foreign-invested enterprises may refer to this Action Plan in its legal briefs to TMO/TRAB/courts requesting a well-known status recognition and protection for their registered marks. During the special campaign period, TMO/TRAB/courts have more incentive and are more likely to grant well-known status protection to foreign renowned brands.
It seems more effective for foreign-invested enterprises to cooperate with local AICs to crack down counterfeits as local AICs are encouraged and required by the SAIC to do so during the term of the special campaign. According to the statistics, the AICs during special campaigns are reported to have handled much more cases involving trademark infringement and counterfeit than the average level; the amount of administrative fines imposed by the AIC is usually three times higher than the average amount.
This campaign will help foreign-invested enterprises have a better cooperation with local Customs to seize and confiscate infringing goods at the borders.