Chinese Intellectual Property for Creatives: The Basics
date: 2018-10-18Nell Greenhouse
You’ve done it! Years of education and training and you’ve found your way to being considered a “creative”. You keep hearing about China’s dive into the innovation economy, but are not so sure if it’s for you - China is a daunting market to enter, and understanding intellectual property rights is vital to protecting your interests here. This series of articles is aimed at creative professionals, showing you how best to protect your work from infringement and what you can do when your rights are infringed.
Before we delve deeper into the subject, it’s important to understand the differences between the three major types of protection available: copyright, trademark and patent. Each of these confers a distinct set of rights and can be used in different ways as part of your intellectual property strategy.
²Automatic right over work created
²Timescale: around 30 days post-registration
²Registration acts as evidence of ownership
²Lasts for the life of the author plus fifty years
The most basic form of protection, copyright of a work exist upon creation, yet still most people choose to register their copyright; why? Registration is prima facie proof of ownership, so it makes dealing with infringers much easier, be that in court, sending a cease and desist letter or when applying for takedown of an infringing product online. In all these cases registering copyright in your work will save you time proving that you are the rights holder, so you can deal with infringement quickly and efficiently. So, be you an artist whose work is illegally being printed on t-shirts, an architect whose designs have been used, or even a teacher whose lesson plans have been published, copyright registration will make dealing with infringement much easier.
²Confers rights over a brand name or logo
²Timescale: granted one year post-application in a smooth case
²Stronger legal remedies available than those for copyright
²Renewable every ten years
Your trademark is so much more than just a logo or a name; it is your brand, your reputation, the quality of your work. If you are selling to the general public, make sure first that you have protected your trademark, be that your brand name, logo, signature or even your name – these are known as “marks”.
China has a “first to file” system, meaning that trademark rights are granted to the person or entity that first applies for them. So, to prevent others registering your mark, the best time to apply for your trademark is the moment you come up with it! When applying to register your TM you will need to choose which class/classes to register it in depending on the type of good or service you are providing, once your trademark is successfully registered others will not be able to register a similar trademark within the same class, so consumers who see your mark connect it with your brand.
²Confers rights over an invention or design in return for disclosure
²Registration takes between a few months to a few years depending on the type of patent and its complexity
²Length of protection: 10 years (design and utility model patents) 20 years (invention patents)
Patents offer protections over a technical invention or design. There are three types of patent within Chinese law: invention, utility model and design patents. Design patents are the major consideration in creative industries as they allow you to assert rights over a commercial design. These sorts of patents are especially useful for designers and architects, but could also be of use to fine artists making reproductions of 3D works.
How these protections can be used will vary from case to case, so for the best protection consult an attorney to determine the best strategy to protect your work. Intrigued by how proper intellectual property protection can help you? Keep your eyes peeled for the next in our series on IP for creatives!