IP Protection

Many companies, particularly SMEs that discover their products are being infringed in China, contact the Department of Commerce for assistance. Because intellectual property rights are private rights, the Department can provide only limited direct assistance. In many cases, the United States government can provide companies with information in navigating China’s legal system, including lists of local investigative firms and attorneys and share our experience and expertise in China. However, the Department of Commerce cannot provide American companies with legal advice or advocate on a company’s behalf without the company first taking legal action.

When a company encounters blatant infringement of its IPR, the right holder should hire local counsel and pursue a preliminary investigation on one’s own or through a contracted professional firm, keeping in mind that U.S. companies should ensure compliance with Chinese law, which restricts private investigation to certain forms of “market research” investigations. Once the initial investigation is complete, the company should determine if further action and possible costs related with such actions are worth pursuing. Right holders will have the option to initiate actions or seek redress through either the judicial or administrative system. Foreign rights holders have had considerably less success in encouraging criminal prosecution of IPR violations, particularly when copyright infringements are involved.

Once a company decides to pursue a remedy, the Department of Commerce, through our Washington DC or China-based offices will monitor the case, if requested to do so by the company. The U.S. Government cannot intervene in the case, however we can inquire about its status or contact government officials about concerns related to the effective administration of legal remedies available to IP holders. The Department of Commerce is most likely to become involved in a case where evidence indicates China is not complying with its enforcement under the WTO TRIPs Agreement. As with other types of commercial disputes, the Department’s efforts in assisting with IPR disputes are aimed at achieving a fair and timely resolution in accordance with international commitments, Chinese laws and in advancing adequate legal and judicial protection for all parties.

We strongly emphasize that the information provided above by no means constitutes legal advice and should not be substituted advice of counsel. Its intended purpose is to provide an overview of China’s IPR environment, available enforcement mechanisms, and Chinese government offices sharing jurisdiction over IPR protection and enforcement. We recommend that U.S. companies seeking to do business in China or are facing IPR infringement issues, retain qualified U.S. and/or Chinese legal counsel and pursue their rights through China’s IPR enforcement regime.

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