Promulgation date: 01-10-2006

Effective date: 03-01-2006

Department:      MINISTRY OF COMMERCE
STATE ADMINISTRATION FOR INDUSTRY & COMMERCE
STATE BUREAU OF COPYRIGHT
STATE INTELLECTUAL PROPERTY OFFICE

Subject: IN      INTELLECTUAL PROPERTY RIGHTS

Measures for the Protection of Intellectual Property Rights during Exhibitions

The Measures for the Protection of Intellectual Property Rights (IPRs) during Exhibitions, which were adopted by the Ministry of Commerce, the State Administration for Industry and Commerce, the State Bureau of Copyright and the State Intellectual Property Office upon deliberation, are hereby promulgated and shall come into force as of March 1, 2006.
Minister of the Ministry of Commerce Bo Xilai
Director of the State Administration for Industry and Commerce Wang Zongfu
Director of the State Bureau of Copyright Long Xinmin
Director of the State Intellectual Property Office Tian Lipu
January 10, 2006
Measures for the Protection of Intellectual Property Rights during Exhibitions

Chapter I General Provisions

Article 1 The present Measures are formulated according to the Foreign Trade Law of the People’s Republic of China, the Patent Law of the People’s Republic of China, the Trademark Law of the People’s Republic of China, and the Copyright Law of the People’s Republic of China as well as the relevant administrative regulations for the purpose of intensifying the IPRs protection during exhibitions, safeguarding the order of the exhibition industry and promoting the sound development thereof.
Article 2 The present Measures shall apply to the protection of relevant patents, trademarks and copyrights in all kinds of exhibitions, trade fairs, expositions, commodity fairs and shows involving economic and technical trade as held within the territory of the People’s Republic of China.

Article 3 The administrative department of exhibitions shall intensify the coordination, supervision, examination regarding the IPRs protection during exhibitions and safeguard the normal trading order therein.

Article 4 An exhibition sponsor shall safeguard the legitimate rights and interests of IPRs holders according to law. An exhibition sponsor shall, when inviting investment and canvassing exhibitions, intensify the IPRs protection for participants to the exhibition as well as the examination of the IPRs status of the items on exhibition (including exhibited items, exhibition boards and relevant publicity materials, etc.). During an exhibition, the sponsor shall actively coordinate with the administrative IPRs department in the IPRs protection.
An exhibition sponsor may, by concluding an article or contract on the IPRs protection with the participants to the exhibition, intensify the IPRs protection during the exhibition.

Article 5 A participant to an exhibition shall take part in an exhibition according to law, shall not injure the IPRs of any other person or entity and shall assist the administrative IPRs department or judicial department in the relevant investigation.

Chapter II Treatment for Complaints

Article 6 Where an exhibition lasts for 3 days or more and if the administrative department of exhibitions believes it so requires, the relevant exhibition sponsor shall establish an office in charge of IPRs complaints during the exhibition. Where an office in charge of IPRs complaints is established, the administrative IPRs department at the locality of the exhibition shall dispatch its personnel to station therein and handle the case of infringement according to law.
In case no office in charge of complaints is established for an exhibition, the administrative IPRs department at the locality shall intensify the guidance for and supervision over the IPRs protection during the exhibition as well as the handling of relevant cases therein. An exhibition sponsor shall publicize the contact persons and ways of the administrative IPRs department at the locality of the exhibition in an eye-catching place of the exhibition venue.

Article 7 An office in charge of IPRs complaints in an exhibition shall be comprised of the personnel from the sponsor of the exhibition, the administrative department of exhibitions, the administrative IPRs department in charge of patents, trademarks, and copyrights and shall perform the following functions and duties:
(1) Receiving complaints from IPRs holders and suspending any exhibition item as suspected of infringement on IPRs during the exhibition;
(2) Transferring the relevant complaint materials to the competent administrative IPRs department;
(3) Coordinating and supervising and urging the treatment for complaints;
(4) Carrying out statistical analysis on the information regarding the IPRs protection during the exhibition; and
(5) Any other relevant matters.

Article 8 An IPRs holder may file a complaint with the office in charge of IPRs complaints during an exhibition or with the administrative IPRs department. The IPRs holder shall, when filing a complaint with the office in charge of IPRs complaints, submit the following materials:
(1) A legitimate and effective certificate of IPRs ownership: where any patent is involved therein, the patent certificate, the text of patent announcement, the identity certification of the patent owner, the certification on the legal status of the patent shall be submitted; where any trademark is involved therein, the certification documents of trademark registration shall be submitted, which shall be confirmed by means of the seal affixed by the complainant, and the identity certification of the trademark owner shall be submitted as well; where any copyright is involved therein, the certification of copyright and the identity certification of the copyright owner shall be submitted;
(2) The basic information about the parties as suspected to have committed any infringement;
(3) The explanations and evidence for any suspected infringement; and
(4) Where an agent is entrusted to file a complaint on behalf of any person, the relevant Power of Attorney shall be submitted.

Article 9 In the case of any failure to satisfy the provisions of Article 8 of the present Measures, an office in charge of IPRs complaints during an exhibition shall inform the related complainant or claimant to supplement the relevant materials in a timely manner. In case it fails to make the supplement, the complaint shall not be accepted.

Article 10 Where a complainant incurs any damage to the relevant respondent by submitting any false complaint material or by any other fabricated complaint, he shall be subject to relevant legal liabilities.

Article 11 An office in charge of IPRs complaints during an exhibition shall, within 24 hours after receiving any complaint material as prescribed in Article 8 of the present Measures, transfer it to the relevant administrative IPRs department.

Article 12 Where any local administrative IPRs department receives a complaint or claim, it shall inform the relevant exhibition sponsor as well as the relevant respondent to the complaint or claim in a timely manner.

Article 13 In the procedures for handling any complaint or claim concerning infringement on IPRs, the local administrative IPRs department may, according to the exhibition period, designate the time limit for the relevant respondent to a complain or claim to file a defense.

Article 14 Where a respondent to a complaint or claim submits his Statement of Defense, the local administrative IPRs department shall make a decision thereon and service it on the two parties concerned in a timely manner, unless any further investigation is required.
Where a respondent to a complaint or claim fails to submit his Statement of Defense within a time limit, the local administrative IPRs department shall not be influenced when making a decision.

Article 15 Where an exhibition is concluded, the relevant administrative IPRs department shall notify the exhibition sponsor of the relevant decision on treatment in a timely manner. The sponsor shall do a good job in the statistical analysis for the IPRs protection during the exhibition and report the relevant situation to the administrative IPRs department in a timely manner.

Chapter III Patent Protection during Exhibition

Article 16 Where any office in charge of IPRs complaints requires the assistance of any local intellectual property bureau, the local intellectual property bureau shall provide positive coordination and participate in the IPRs protection during the exhibition. The local intellectual property bureau may carry out the following work during the exhibition:
(1) Accepting a complaint of suspected infringement on IPRs as transferred by the office in charge of IPRs complaints in the exhibition and handling it according to the relevant provisions of laws and regulations on patent;
(2) Accepting a claim of treatment for any dispute over suspected infringement on patent relating to any exhibited item and handling it according to the provisions of Article 57 of the Patent Law; and
(3) Accepting tip-offs on any suspected imitation of other’s patent or imitated patent relating to any exhibited item, or investigating into and punishing any suspected imitation of other’s patent or imitated patent relating to any exhibited item and giving a punishment according to the relevant provisions of Articles 58 and 59 of the Patent Law.

Article 17 Under any of the following circumstances, the local intellectual property bureau may not accept any complaint of patent infringement or claim for treatment:
(1) Where a complainant or claimant has filed a litigation concerning infringement on patent with the people’s court;
(2) Where any patent is in the procedures for declaring invalidation of patent right;
(3) Where any dispute over the ownership of a patent is subject to the trial procedures of the people’s court or to the mediation procedures of the administrative department of patent; or
(4) Where any patent has been terminated and its owner is attempting to resume the patent.

Article 18 The local intellectual property bureau shall, when notifying the respondent to a complaint or claim, conduct instant investigation to obtain evidence, consult and copy the relevant documents relating to the case, inquire of the parties concerned, carry out on-the-spot inspection by such means as camera shooting or video camera shooting, or may collect evidence by sampling.
The local intellectual property bureau shall, when collecting evidence, make relevant transcripts that shall bear the signatures or seals of relevant handlers and parties concerned under investigation for evidence collection. Where any party concerned under investigation for evidence collection refuses to render his signature or seal on the relevant transcripts, it shall be indicated in the transcripts. Where any other person is on the spot, the very person may as well render his signature on the relevant transcripts.

Chapter V Trademark Protection during an Exhibition

Article 19 Where an office in charge of IPRs complaints during an exhibition requires the assistance from the local administrative department for industry and commerce, the latter organ shall provide positive coordination and participate in the IPRs protection during the exhibition. The local administrative department for industry and commerce may undertake the following work during the exhibition:
(1) Accepting complaints of suspected infringement on trademark as transferred by the office in charge of IPRs complaints during the exhibition and handling them according to the relevant provisions of laws and regulations on trademark;
(2) Accepting complaints of infringement on the right to the exclusive use of trademark as prescribed in the provisions of Article 52 of the Trademark Law; and
(3) Investigating into and punishing any case involving trademark irregularity according to its functions and power.

Article 20 Under any of the following circumstances, the local administrative department for industry and commerce may refuse to accept any complaint or claim for treatment concerning infringement on the right to the exclusive use of trademark:
(1) Where a complainant or claimant has filed a litigation of infringement on trademark with the people’s court; or
(2) Where any right to the exclusive use of trademark has been invalidated or cancelled.

Article 21 The local administrative department for industry and commerce may, after deciding to accept any complaint or claim, carry out an investigation and give relevant treatment according to the relevant provisions of laws and regulations on trademark.

Chapter VI Copyright Protection during Exhibition

Article 22 Where an office in charge of IPRs complaints during an exhibition requires the assistance from the local administrative department of copyright, the latter organ shall provide positive coordination and participate in the IPRs protection during the exhibition. The local administrative department of copyright may undertake the following work during the exhibition:
(1) Accepting complaints of suspected infringement on copyright as transferred by the office in charge of IPRs complaints during the exhibition and handling them according to the relevant provisions of laws and regulations on copyright; and
(2) Accepting complaints of infringement on copyright as prescribed in the provisions of Article 47 of the Copyright Law and giving a punishment according to the relevant provisions of the Copyright Law.

Article 23 The local administrative department of copyright may, after accepting a complaint or claim, adopt the following means to collect evidence:
(1) Consulting and copying the documents, archives, account books or any other written materials relating to any suspected infringement;
(2) Collecting evidence by sampling any duplicate as suspected of infringement; and
(3) Registering and preserving any duplicate as suspected of infringement.

Chapter VII Legal Liabilities

Article 24 Where the local administrative IPRs department believes that a complaint of suspected infringement on IPRs is well established, it may handle it in collaboration with the administrative department of exhibitions according to law.

Article 25 Where the local administrative IPRs department believes that a claim for the treatment of suspected infringement on any invention or new utility model is well established, relevant treatment shall be decided, according to the provisions of paragraph 1 of Article 11 of the Patent Law on prohibiting promised sale as well as the provisions of Article 57 of the Patent Law on ordering the wrongdoer to stop his infringement immediately, that the respondent to the claim is ordered to withdraw all the exhibited items of infringement, the publicity materials of introduction to exhibited items of infringement shall be destroyed and the exhibition board of introduction to exhibited items shall be changed.
Where the local administrative IPRs department believes that a claim for the treatment of suspected infringement on any patent of exterior design, by which the respondent to the claim sells his items on exhibition, is well established, relevant treatment shall be decided, according to the relevant provisions of paragraph 2 of Article 11 of the Patent Law on prohibited sales or Article 57 of the Patent Law on ordering the wrongdoer to stop his infringement immediately, that the respondent to the claim shall be ordered to withdraw any exhibited item of infringement from the exhibition.

Article 26 Where anyone fabricates any other’s patent or fabricates any unpatented product as patented one, or fabricates any non-patented method as patented method, the local intellectual property bureau shall give a punishment according to the provisions of Articles 58 and 59 of the Patent Law.

Article 27 Where the local administrative department for industry and commerce believes that a claim for treatment of any infringement on trademark is well established, it shall give a punishment according to the relevant provisions of the Trademark Law and the Regulation on the Implementation of the Trademark Law, etc..

Article 28 Where the administrative department of copyright believes that a claim for treatment of any infringement on copyright as well as the related rights is well established, relevant punishment shall be given according to the provisions of Article 47 of the Copyright Law, the relevant exhibited items of infringement as well as publicity materials of introduction to exhibited items of infringement shall be confiscated and destroyed, and the exhibition boards of introduction to exhibited items of infringement shall be changed.

Article 29 Where, upon investigation, the people’s court or the administrative IPRs department rules that an infringement is well established or makes a decision that has taken legal effect regarding any exhibited item under complaint or claim of infringement, the local administrative IPRs department may directly make a decision on treatment as prescribed in Article 26, 27, 28 or 29.

Article 30 Where a claimant pleads not only to prohibit an infringing exhibition conducted by the respondent to the claim and but also to prohibit any other IPRs infringement committed by the said respondent, the local administrative IPRs department may give treatment to any suspected infringement that occurs within its jurisdiction according to the relevant provisions of laws, regulations and rules on IPRs.

Article 31 Where any infringement committed by a participant to an exhibition is established, the administrative department of exhibitions may make an announcement to the relevant participants to the exhibition. Where any participant to an exhibition commits any infringement for more than twice consecutively, the relevant exhibition sponsor shall prohibit the said participant from taking part in the next exhibition.

Article 32 Where a sponsor fails to fulfill its obligation regarding the IPRs protection during an exhibition, the administrative department of exhibitions shall give a warning thereto and disapprove any application thereof for holding any relevant exhibition again.

Chapter VIII Supplementary Provisions

Article 33 Where any case hasn’t been concluded at the end of an exhibition, the relevant facts and evidence of the case may be confirmed by the exhibition sponsor. The administrative IPRs department at the locality of the exhibition shall, within 15 workdays, transfer it to the competent administrative IPRs department for treatment according to law.

Article 34 The term “administrative IPRs department” as mentioned in the present Measures refers to the administrative departments of patent, trademark and copyright. The term “ administrative department of exhibitions” as mentioned in the present Measures refers to the department in charge of examination and approval or registration of exhibitions.

Article 35 The present Measures shall come into force as of March 1, 2006.