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Manage your Intellectual Property in Mainland China, HongKong, Macao and Taiwan

Glossary

Arbitration – a method to resolve disputes outside the courts whereby a dispute, with the consent of all the parties, is submitted to one or more unbiased third persons for a decision.

‘Black box’ strategy – This is any strategy used in the transfer of technology whereby the party receiving the technology is prevented from knowing certain critical aspects required to practice the technology, which may include delivering stand-alone components necessary to practice the technology, but without disclosing how such stand-alone components work or are made.

CcTLD – Country code top level domain. Example: .cn (China)

Circumvention – refers to a company which, after acquiring another company’s technology, IP rights, confidential information, etc. through negotiation, cooperation or collaboration, by-passes that company and sells directly to the market.

Copyrights - A copyright protects intangible original intellectual creations in the fields of literature, art or science that can be reproduced in a tangible form from being reproduced without the permission of the copyright holder. Unlike trademarks and patents, registration of copyrights is not compulsory in order to obtain protection, but can help in proving the ownership of the copyright in the case of infringement.

Counterfeiting – Counterfeits are imitations of existing trademarks or products on the market. Anti-counterfeiting is a task which takes up resources as counterfeit manufacturers in China can be hard to track. Many SMEs that do not have an internal resource to engage in anti-counterfeit preparations in China contract external IPR consultants to take care of their needs in a given case.

Counterfeit sales – Sale of counterfeit products using your brand.

Creator-employees – Creator employees generally refers to employees who create creative works or invent inventions for their employer at the employer’s instruction or as part of the employee’s scope of employment, often using the financial and material resources of the employer.

Customs – Customs are the authorities in China that examine imports and exports to the country. Chinese customs can temporarily detain potential IP infringing shipments for up to three working days and notify the related companies that have recorded their rights with the General Administration of Customs (GAC). This process is inexpensive and straightforward, and recommended by China IPR Helpdesk experts.

Cybersquatting – Registering domain names that are identical to your company’s product or trade mark names, with the purpose of selling the domain names back to you (the rightful owner) at a premium price.

Disclosure requirements (for patents) – All patent applications must describe the invention clearly and completely enough to be carried out by a person specialised in the given field.

Divisional application – This refers to the procedure permitted in certain jurisdictions of splitting a patent application which discloses more than one distinct invention into several patent applications, each disclosing a distinct invention sufficient for patentability under the patent laws of the jurisdiction.

Drafting of patent claims – ‘Patent claims’ refers to language used in patents to define the scope of the patent. Patent claims define the parameters of inventions that are includable or excludable from the patent monopoly. Patent claims are usually drafted by a patent attorney, as the words used to draft the claims are critical in determining how broad or narrow the scope of protection of the patent is.

False affiliation – Criminals presenting themselves as authorised resellers.

Industrial applicability (for patents) – This is a requirement for all inventions across any kind of industry in order to qualify for a patent. For example, surgery, therapy and diagnostic methods practiced on the human body would not be regarded as having industrial applicability.

Injunction – A court order requiring the offender to immediately cease selling and producing the counterfeit items.

Injunctive relief – an order granted by the court requiring an individual or a company to do or not to do certain acts.

Intellectual Property Rights (IPR) - Intellectual Property Rights are legally enforceable rights over the use of inventions or other creative works. They confer a right to exclude others from their use. This includes patents and utility models, industrial designs (or design registrations), trade secrets, trademarks, Geographical indications and copyrights.

Invention patents – An invention patent is a patent that typically covers any new, inventive, and useful method, process, machine, article of manufacture, or composition of matter, although the subject matter patentable as an invention patent varies between jurisdictions.

Licensee – a person to whom a license is granted. Licensor – a person who gives or grants a license to another.

Licensing – Intellectual Property (IP) can be licensed by one company for use or redistribution by another. Licensing is sometimes regarded by SMEs as a cost effective way of working with local people who have the know-how to enter the market and an opportunity to tap into a local network. However, all licensed IP should be fully identified and registered, and protected contractually via a strong licensing agreement.

Novelty (for patents) – Novelty means that, before the date of filing, no identical invention or utility model has been publicly disclosed in publications in the country or abroad, or has been publicly used or made known to the public by any other means in the country, nor has any other person filed previously with the Patent Administration Department under the State Council and are recorded in the administration department.

Patents – Patents are licenses which protect innovations and must be filed before the invention becomes known to the public. In China there are three types of patent – invention (20 years duration), utility model (10 years duration), and design (10 years duration). It should also be noted that a European registered patent has no legal effect in China.

People ’s Procuratorate – The people’s procuratorates in China are state organs of legal supervision. Their organization corresponds to that of the people's courts.

Phishing – Attempting to acquire credit card information, usernames, and a password via electronic communication (fraudulent e-mails containing fake links). The term ‘phishing’ is a mix of ‘password’ and ‘fishing’.

‘Prior art’ search – ‘Prior art’ refers to disclosures of the patented invention in publications at least prior to the application date of the patent, that may refute the novelty and/or inventiveness of the invention for patent. Since an invention must be novel and inventive to be patentable, a prior art search is typically conducted either by a patentee or a person seeking to challenge the validity of the patent to determine whether a patent will be upheld as valid if challenged, either in an patent invalidation proceeding or in the course of a patent infringement litigation.

Recordal – The process of recording different forms of intellectual property rights.

Severability – If any portion of a contract is held unenforceable, such portion does not affect the validity of the rest of the contract.

Slamming – Fraud whereby resellers of domain name registrars contact European companies, claiming that another client of theirs has requested the registration of domain names identical to your trade mark or company name. Their objective is to encourage you to place a domain name registration using their company, and worst-case scenario would be having access to your credit card information. The advice is to simply ignore such e-mails.

Small and Medium Enterprises (SMEs) – SMEs are companies with less than 250 employees and with either a turnover of less than or equal to EUR 50 million, or a balance sheet total of less than or equal to EUR 43 million.

Technology transfer – This is the transferring of technical know-how, skills, technology or methods of production from one company to another. It often occurs between European and Chinese companies due to key Chinese policies that make joint ventures obligatory for foreign companies in exchange for market access in some industries.

Trade Dress - The visual appearance of a product and/or its packaging, that expresses the source of the product to consumers, though does not hold any functional use.

Trade fairs – Trade fairs are exhibitions which allow companies in a certain industry to showcase their products or services, the largest of which in China is the Canton fair held twice a year in Guangzhou, Southern China. Although attending a trade fair or exhibition in China can reap substantial benefits, SMEs should be aware of the associated risks from exposing IP to potential infringers.

Trade marks - A trademark is a visible sign composed of words, devices, letters, numerals or shapes, that indicates the source of goods or services, thus allowing consumers to distinguish goods or services of one producer from those of another. A trademark can be registered either through the 'national system' with China's Trademark Office (TMO) directly, or through the 'international system' with the World Intellectual Property Organisation (WIPO).

Trade secrets – A trade secret is any non-public information with actual or potential commercial value that is guarded by confidentiality measures. Trade secrets can ensure business advantage over competitors but must remain secret – once a trade secret becomes publicly known, it can no longer be protected as a trade secret. Most theft of trade secrets cases involve current or former employees.

Transferees and assignees – a person to whom an interest or right is transferred or assigned, which gives him or her the interest or right the owner had prior to the transfer or assignment.

Typosquatting – Registering domain names that are either visually similar to your domain name or are mistyped (one key off on the keyboard). Example: If Europe.eu is the domain name, europ.eu could be the typosquatted domain (visually similar); or if Europe.eu is the domain name, Euripe.eu could be the variant (the letter ‘i’ is next to the letter ‘o’ on the keyboard, making this a common typo). Omitting or doubling characters are also characteristics of typosquatting.

Utility Models – This refers to a sub-set of patents in some jurisdictions for inventions that have a lower degree of inventiveness than is required for invention patents. The subject matter patentable as a utility model varies between jurisdictions, and may exclude methods and compositions. A utility model often has a shorter term of protection than an invention patent.

Warranties – assurances, promises, or guaranties made by one party to another party that a particular statement of fact is true and may be relied upon.