April 18 is "Invention's Day" / China's latest intellectual property situation | Other news

Asahi Nishimura Law Office Shanghai Office Representative Takashi Nomura

急速な発展と多面化

In recent years, the rapid change and development of China are surprising every day.The same is true for intellectual property, and technological innovation related to the Internet and mobile phones, such as cashlessness and the expansion of share business, shows the momentum of developing countries, but the old -fashioned imitation business does not decline.It is indispensable for understanding China, rather than forcing Japan's "common sense" to be forced.Introducing the latest intellectual property situation and the response of Japanese companies.

世界有数の出願大国に

[Intellectual property power, China -Sudden increase in registration application]

China was one of the world's leading applicants in patents, about 1,382,000 in 2017.There are about 1,688,000 applications for practical new proposals, and about 629,000 design applications.The number of trademark applications was about 5,539,000 in 2017 (up 57%year -on -year), and the number of applications and growth rate was a record high.

Both are far exceeding the number of applications in Japan (Table 1).

In recent years, the number of applications by Chinese companies has increased rapidly (the top 10 patents are all Chinese companies), and intellectual property lawsuits have increased.The number of new acceptance of intellectual property lawsuits (first instance) in 2017 was about 213,000.In recent years, the number of new acceptance of intellectual property -related civil lawsuits in Japan is about 500.

The cost of research and development of Chinese companies is increasing rapidly, and it can be said that both the Chinese and Chinese companies emphasize the intellectual property strategy.

[Actively utilization of practical new proposals]

It is important to note that the difference with Japan is that there are extremely many applications for applications for practical new proposals, and the exercise of rights such as litigation is actively performed.Unlike patents, the practical new plan is unlike a patent, so it is possible to register and exercise the right early.In fact, Chinese companies are actively raising new proposal infringement lawsuits.There are many cases of litigation that have been granted for more than 1 million yuan (about 16 million yen) for more than 1 million yuan (about 16 million yen), and there are many practical benefits than patents.

Recently, it seems that more and more Japanese companies have been considering active practical new proposal applications in China.

[Protect with know -how or apply for registration]

中国企業がR&D(研究開発)に力を入れて技術力を向上させつつ、その特許・実用新案出願を積極的に行う中で、日本企業の知財戦略も見直しを迫られている。

When the company has been kept secret of its core technology as know -how, it is possible that a competitive Chinese company will catch up and register a similar technology in reality (conversely, the risk of filing infringement litigation is increased.).It is necessary to reconsider the patent application strategy in China and reconsider whether it is necessary to promote aggressive registration application and exercise rights.

訴訟対応 極めて重要

[Increased infringement litigation / compensation amount]

Patients and other lawsuits are increasing, and Chinese companies have filed a lawsuit against foreign -affiliated companies and the number of infringement lawsuits among Chinese companies are increasing.Among them, the amount of compensation has also increased, for example, the average compensation for patents, practical proposals, and design infringement litigation, for example, at Beijing's Intellectual Property Law, was 1.41 million yuan (approximately 22.56 million yen.) It is said that the average compensation for trademark infringement lawsuits is 1.65 million yuan (about 26.4 million yen), and the average compensation for copyright infringement is 450,000 yuan (about 7.2 million yen).

The Supreme People's Court establishes a system in which the amount of damages in the lawsuit, mainly compensation for damages based on market value, is established, and the Supreme People's Court is compensated for the amount of damage based on market value.It states that it will improve the level.Combined with the accumulation of practical know -how of the damages proof in the lawsuit, it is expected that the tendency to increase the amount of damages will continue to increase in the future.

[Know -how on the defendant side]

While Chinese companies are strengthening both quality and quantity, Japanese companies have been sued by Chinese companies, as well as exercising the rights of litigation from the right holders and plaintiffs in China.The awareness that it should be prepared for the defendant's position is increasing.

In recent years, Chinese companies have appealed to Sony -affiliated Chinese corporations for those who have violated their mobile phone equipment for patent infringement, and in March 2017, Beijing Intellectual Property Law will stop selling to Sony side (approximately 100 million yuan (approximately 100 million yuan).It was noted that 44 million yen) ordered damages.

Litigation is extremely important in the protection of intellectual property rights in China, and the defendant needs to develop a correspondence system, but there are still few Japanese companies that have experience in authentic intellectual property lawsuits.It is the actual situation.

本社と現法、連携した対応を

[Use of unauthorized trade name of famous trademarks]

There are still many imitation damage such as trademark infringement.More than 20,000 trademark infringement and imitation cases in which the Industrial and Commercial Bureau took over the government.

We will discuss the case where a third party registers the company name and trademark of a famous company in the Industrial and Commercial Bureau as its business name.The schemes that straddle the multilateral are as follows.

First, a Chinese imitating product company establishes a dummy company in Japan and Hong Kong, and registers the company name that includes the name and trademark of a famous company to imitate.

Next, a company was established in China in the form of a subsidiary of the dummy company, etc., and registered as a trade name with a similar company name, and the company manufactured by this Chinese company was assigned the company name.Sell.The actual situation is a trademark infringement, but at first glance it is a display of the company's license from a foreign company, and the Industrial and Commercial Bureau tends to hesitate to crack down and has to deal with civil lawsuits.

In this case, in parallel with the demanding of the other companies in China to delete and changes the trade name based on the Unauthorized Competition Prevention Law, the dummy company in Japan and Hong Kong is also requested to delete the trade name through the lawsuit in the area.You need to go.Delimating the registration of a foreign dummy company will be a powerful evidence that the other party's legal use of trade names will be broken in Chinese lawsuits.The point is to proceed strategically in litigation that spans multiple countries and regions strategically.

Table 2 shows the tendency of the difference between Japanese and Chinese companies.

Based on the fact of China, more advanced intellectual property strategies and practical know -how are needed, and it can be said that the company's headquarters and the local side is urgently needed.

【略歴】のむら・たかし 弁護士、西村あさひ法律事務所 上海事務所代表。専門は中国関連の投資、M&A(合併・買収)、再編・撤退、知的財産、訴訟・紛争、独占禁止法など。中国に長く駐在し、多国籍クロスボーダー型案件を多数手がける。

[Industrial Observation District] The invention date special feature will be serialized 9 times until May 1.Please stay tuned.