Op-Ed Contributors

Court cases indicate better IPR protection

By Haifeng Huang and Tony Chen (China Daily)
Updated: 2011-04-29 07:56

For most intellectual property rights (IPR) infringements in China, IPR owners can choose to lodge complaints with administrative agencies or sue in the local courts. But while administrative agencies continue to handle a large portion of IPR infringements, taking cases to court has been a growing trend in recent years, particularly for significant and complex cases.

For example, trademark infringement cases handled by the local administrations for industry and commerce have been fairly stable in terms of numbers: 50,534 in 2006, 50,318 in 2007, 56,634 in 2008, and 51,044 in 2009, with around one-fifth of them filed by foreign parties.

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However, there has been a huge increase in the number of trademark infringement cases filed with the courts - 2,521 in 2006, 3,855 in 2007, 6,233 in 2008, and 6,906 in 2009. And that trend is still continuing, as 8,480 cases were taken to court in 2010, a 22.5 percent increase on 2009, according to the White Paper on Judicial Protection of Intellectual Property issued by the Supreme People's Court on April 12, 2011.

What factors are driving this trend?

While administrative agencies can act swiftly and conduct proactive investigations, there are serious "issues" with administrative enforcement: no due process, delays, limited knowledge and resources in handling complex cases, limited deterrence, and the agencies are frequently afraid of being sued by the infringers, which results in deals being struck over penalties in many cases.

Recent policy changes in the Chinese judiciary and its attitudes toward IPR have played an important role in the move toward taking cases to court. "Judicial activism" has been explicitly adopted by the Supreme People's Court in recent years as a formal judicial policy, which requires all levels of courts in China to be more responsive to society's needs and more active in "resolving" issues by utilizing judicial discretion.