In almost every case, starting up a business carry on the need to make own business stand out through intellectual property rights, as trademark, patent or website domain. This involves the proper knowledge about the related protection.

How does it work in China?

First of all your intellectual property rights have to be registered in order to be protected by PRC Government. It is advisable to apply for the registration of trademark, patent, copyright or domain name as soon as possible, so avoiding that between the start-up and the registration any infringement takes place. In fact, without a prompt registration, such infringements won't have any form of protection.

If the IP right would be used within the territory of China, the application should be filed before the "Trademark Office", otherwise, it you want the IP right to be internationally used, the application should be filed on the trademark international platform provided by the WIPO (World Intellectual Property Organization) for all the signers of the Madrid Convention, like China.

The protection in case of IP right's infringement is deeply different from the Italian and European system: how does China ensure protection?

The main difference between Chinese and other country legal is that according to the first one the evidence collected by a private deem to be not enough in itself, regardless whether they are web screenshot, photos or contracts. So, how to deal with this?
Find a notary.

According to Chinese legal system, the only evidence that may be successfull in a lawsuit - either it would be civil action or administrative route - is the notarized one. First of all the counterfaiter should be individuated, thus the IP right's owner should collect as many evidence materials as possible, like photos, brochures, contracts, documents, advertisiments.

Once the evidence materials have been collected, it is advisable to appoint a legal advisor to handle the notarization issue, and prior to this, to verify that the collected material is proper and enough.

The following documents are required before going to the notary:
- the business licence of the company or, if an individual, the copy of the identity certificate;
- the registration certificate of the IP right;
- renewal or amendment certificates of the registration one;
- the power of attorney in case of having appointed a legal advisor;
- the licence of the appointed law firm.

It has to be pointed out that whether one of the aformentioned documents has been issued outside of China, the translation in Chinese and/or, in some cases, the legalization may be required.

As concerns the kind of evidences likely to be collected, it would be better to:
- make a purchase of the infringing product by notary deed;
- take photos of the sale of the infringing product by the counterfaiter;
- collect advertisements of the infringin product.
All these material should be notarized and kept by the notary within the "evidence box", so being ensured for a potential lawsuit. As concerns documents (i.e. the purchase deed), they are required to be issued in one original for each side of the lawsuit: in the easier case, one for the plaintiff, one for the counterfaiter and one for the Court.
The notarized evidence is the most important one, as it is stronger than the witness.

BLB Law Firm, through its Asia Desk, provides to Italian and European clients an efficient and complete advisory legal service in starting-up a business in China, applying for IP rights registration and ensuring protection to the latter.

A new business to be successful need a legal advisor, as its armed branch! 

For further information, please contact:
blbasiandesk@blblex.it