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How to protect intellectual property rights in
by：VIPUTRANS
2020-09-04
1. International classification of intellectual property protection
Internationally, intellectual property rights are usually divided into two categories: industrial property rights and copyright (copyright). The Paris Convention for the Protection of Industrial Property (hereinafter referred to as the “Paris Convention”) adopted in 1883 determined the broadest scope of industrial property protection, including patents, trademarks, industrial designs, utility models, service marks, trade names, and geography. Mark and stop unfair competition. The Berne Convention for the Protection of Literary and Artistic Works (hereinafter referred to as the Berne Convention) adopted in 1886 established the protection of literary and artistic works, deductive works, works of applied art, and industrial designs. The two conventions jointly established the main content and procedural framework for the international protection of intellectual property rights. Then, with the development of the international intellectual property system, the object and procedural framework of intellectual property protection have been continuously enriched and improved.
2. International protection of industrial property rights
(1) Traditional 'Paris Convention' approach
According to the 'Paris Convention', in terms of industrial property protection, each member country of the Paris Convention must grant the nationals of other member countries the same treatment as its own nationals. Therefore, nationals of each member country can enjoy trademarks and patents in other member countries. , Industrial design, geographical indication and other industrial property rights. my country applied to join the Stockholm revision of the Paris Convention on December 19, 1984 [3], and officially became a member of the Paris Convention on March 19, 1985. On this basis, Chinese nationals can obtain industrial property rights in the exporting country in advance for trademark registration and patent application in accordance with the laws of that country.
(2) Through the WIPO service system
With the rapid development of globalization, a global service system of the World Intellectual Property Organization that is more convenient than the 'Paris Convention' approach is slowly established and matured. Today, the Madrid system for international trademark registration, the PCT system for international patent applications, and the Hague system for international industrial designs as the main global service systems have greatly simplified the procedures for obtaining international industrial property rights.
1. Use the Madrid system for international trademark registration
According to the 'Madrid Agreement' and 'Madrid Protocol', geographical indications can be registered as collective trademarks or certification trademarks or after the registration application is submitted, and they can be widely protected in member states through the Madrid system. my country joined the 'Madrid Agreement' and 'Madrid Protocol' in 1984 and 1995 respectively, becoming a member of the Madrid System. Therefore, before international trade, under the condition of satisfying the basic trademark principles, one trademark registration application and one language (English or French) can be registered in multiple member states at the same time, in the most convenient and cheap way. The target country completes the trademark layout.
2. Use the PCT system for international patent applications
The PCT system is an international patent application system established in accordance with the Patent Cooperation Treaty (PCT). So far, the PCT system has 152 member states, covering most countries in the world. The value of the PCT system is that applicants can request protection of their patents in all member states at the same time (excluding design patents) by submitting only one PCT patent application. my country joined the convention in 1994 and formally became a member of the system. Therefore, Chinese companies can make full use of the PCT system to deploy patents in export destination countries in advance to reduce the risk of infringement.
3. Use the Hague system for international registration of industrial designs
The Hague System is an international registration system for industrial designs established in accordance with the 'Hague Agreement Concerning the International Registration of Industrial Designs' (hereinafter referred to as the 'Hague Agreement') administered by the World Intellectual Property Organization. Similar to the Madrid system and the PCT system, through the Hague system, applicants only need to file an international application in one language (English, French or Spanish) and use one currency (Swiss francs) to obtain parity in all contracting parties. protection.
Currently, the Hague System has 68 members. Unfortunately, my country has not yet joined the Hague Agreement on the International Registration of Industrial Designs and is not a member of the Hague System. Obviously, this is not in line with my country's status as a major manufacturing country and a major exporter of goods. Even so, according to the 'Hague Agreement' and the 'Common Regulations', an applicant can submit an international application through the Hague System if one of the following conditions is met:
(a) be a national of a Party, or
(b) Have a domicile in the territory of the Contracting Party, or
(c) There is a real and effective business office in the territory of the Contracting Party, or
(d) Have a permanent residence in the Contracting Party.
Therefore, when my country has not yet joined the Hague Agreement, if Chinese companies or applicants have real and effective business offices in the contracting parties, they can use the Hague system to deploy industrial designs in the member states. However, this method is still a drop in the bucket compared to my country's huge design applications. We hope that China can join the 'Hague Agreement' as soon as possible, so that trademarks, patents and designs can help 'Made in China 2025'.
3. International protection of copyright
As an important part of intellectual property, copyright mainly includes copyright and related rights related to copyright. Enhancing the international protection capacity of copyright and neighboring rights is of great significance for enhancing my country's cultural soft power and improving the structure of my country's service trade.
(1) International protection of copyright (excluding neighboring rights)
The principles of national treatment and automatic protection of the Berne Convention stipulate that nationals of member states and nationals of non-member states who have a habitual residence in member states shall enjoy national treatment in all member states regardless of whether their works are published or not; non-member states of the convention Nationals, as long as their works are published in any member state, or in a member state and a non-member state at the same time (within 30 days), they shall also enjoy national treatment in all member states. In both cases, the author All member states enjoy copyright. Therefore, the nationals of our country enjoy copyright in all member states after the work is completed and fixed in some material form. In 1996, on the basis of the 'Bern Convention', the 'World Intellectual Property Organization Copyright Convention' as a special agreement of the former, included the compilation (database) of computer programs and data and other materials into the object of copyright protection.
(2) International protection of neighboring rights
At the International Summit of Heads of State held in Rome in 1961, the first Rome Convention for the Protection of Performers, Producers of Audiovisual Products and Broadcasting Organizations (referred to as the Rome Convention) on the protection of neighboring rights was concluded. The convention ensures the protection of performers’ performances, phonograms of producers of phonograms, and broadcast programs of broadcasting organizations. After that, the 'Convention for the Protection of Producers of Phonograms Against Unauthorized Copying of Phonograms' signed in 1971, the 'Trade-related Intellectual Property Agreement' passed in 1993, and the 'World Intellectual Property Organization Performance and The Phonograms Treaty and the Beijing Treaty on Audiovisual Performances concluded in Beijing, China in 2012 (not yet in force) both reaffirm the protection of related neighboring rights. Although my country has not joined the Rome Convention, it has joined the subsequent international treaties for the protection of neighboring rights. Therefore, the legitimate rights of my country’s performers, audio and video producers and broadcasting organizers can still be protected in the treaty member states .
Four, summary
Intellectual property protection is the foundation of international trade and an important guarantee for reducing the risk of infringement in international trade. In international trade in goods and services, what is traded is not only the product itself, but also the intellectual property that condenses human wisdom. Respect and make full use of the international intellectual property system, take the initiative in the layout of industrial property rights such as patents, trademarks, and designs, and take the initiative to incorporate and use international copyright (copyright) rules. This is not only an important protection for the achievements of intellectual labor, but also for Chinese enterprises to participate in the international Safe escort of trade.
Internationally, intellectual property rights are usually divided into two categories: industrial property rights and copyright (copyright). The Paris Convention for the Protection of Industrial Property (hereinafter referred to as the “Paris Convention”) adopted in 1883 determined the broadest scope of industrial property protection, including patents, trademarks, industrial designs, utility models, service marks, trade names, and geography. Mark and stop unfair competition. The Berne Convention for the Protection of Literary and Artistic Works (hereinafter referred to as the Berne Convention) adopted in 1886 established the protection of literary and artistic works, deductive works, works of applied art, and industrial designs. The two conventions jointly established the main content and procedural framework for the international protection of intellectual property rights. Then, with the development of the international intellectual property system, the object and procedural framework of intellectual property protection have been continuously enriched and improved.
2. International protection of industrial property rights
(1) Traditional 'Paris Convention' approach
According to the 'Paris Convention', in terms of industrial property protection, each member country of the Paris Convention must grant the nationals of other member countries the same treatment as its own nationals. Therefore, nationals of each member country can enjoy trademarks and patents in other member countries. , Industrial design, geographical indication and other industrial property rights. my country applied to join the Stockholm revision of the Paris Convention on December 19, 1984 [3], and officially became a member of the Paris Convention on March 19, 1985. On this basis, Chinese nationals can obtain industrial property rights in the exporting country in advance for trademark registration and patent application in accordance with the laws of that country.
(2) Through the WIPO service system
With the rapid development of globalization, a global service system of the World Intellectual Property Organization that is more convenient than the 'Paris Convention' approach is slowly established and matured. Today, the Madrid system for international trademark registration, the PCT system for international patent applications, and the Hague system for international industrial designs as the main global service systems have greatly simplified the procedures for obtaining international industrial property rights.
1. Use the Madrid system for international trademark registration
According to the 'Madrid Agreement' and 'Madrid Protocol', geographical indications can be registered as collective trademarks or certification trademarks or after the registration application is submitted, and they can be widely protected in member states through the Madrid system. my country joined the 'Madrid Agreement' and 'Madrid Protocol' in 1984 and 1995 respectively, becoming a member of the Madrid System. Therefore, before international trade, under the condition of satisfying the basic trademark principles, one trademark registration application and one language (English or French) can be registered in multiple member states at the same time, in the most convenient and cheap way. The target country completes the trademark layout.
2. Use the PCT system for international patent applications
The PCT system is an international patent application system established in accordance with the Patent Cooperation Treaty (PCT). So far, the PCT system has 152 member states, covering most countries in the world. The value of the PCT system is that applicants can request protection of their patents in all member states at the same time (excluding design patents) by submitting only one PCT patent application. my country joined the convention in 1994 and formally became a member of the system. Therefore, Chinese companies can make full use of the PCT system to deploy patents in export destination countries in advance to reduce the risk of infringement.
3. Use the Hague system for international registration of industrial designs
The Hague System is an international registration system for industrial designs established in accordance with the 'Hague Agreement Concerning the International Registration of Industrial Designs' (hereinafter referred to as the 'Hague Agreement') administered by the World Intellectual Property Organization. Similar to the Madrid system and the PCT system, through the Hague system, applicants only need to file an international application in one language (English, French or Spanish) and use one currency (Swiss francs) to obtain parity in all contracting parties. protection.
Currently, the Hague System has 68 members. Unfortunately, my country has not yet joined the Hague Agreement on the International Registration of Industrial Designs and is not a member of the Hague System. Obviously, this is not in line with my country's status as a major manufacturing country and a major exporter of goods. Even so, according to the 'Hague Agreement' and the 'Common Regulations', an applicant can submit an international application through the Hague System if one of the following conditions is met:
(a) be a national of a Party, or
(b) Have a domicile in the territory of the Contracting Party, or
(c) There is a real and effective business office in the territory of the Contracting Party, or
(d) Have a permanent residence in the Contracting Party.
Therefore, when my country has not yet joined the Hague Agreement, if Chinese companies or applicants have real and effective business offices in the contracting parties, they can use the Hague system to deploy industrial designs in the member states. However, this method is still a drop in the bucket compared to my country's huge design applications. We hope that China can join the 'Hague Agreement' as soon as possible, so that trademarks, patents and designs can help 'Made in China 2025'.
3. International protection of copyright
As an important part of intellectual property, copyright mainly includes copyright and related rights related to copyright. Enhancing the international protection capacity of copyright and neighboring rights is of great significance for enhancing my country's cultural soft power and improving the structure of my country's service trade.
(1) International protection of copyright (excluding neighboring rights)
The principles of national treatment and automatic protection of the Berne Convention stipulate that nationals of member states and nationals of non-member states who have a habitual residence in member states shall enjoy national treatment in all member states regardless of whether their works are published or not; non-member states of the convention Nationals, as long as their works are published in any member state, or in a member state and a non-member state at the same time (within 30 days), they shall also enjoy national treatment in all member states. In both cases, the author All member states enjoy copyright. Therefore, the nationals of our country enjoy copyright in all member states after the work is completed and fixed in some material form. In 1996, on the basis of the 'Bern Convention', the 'World Intellectual Property Organization Copyright Convention' as a special agreement of the former, included the compilation (database) of computer programs and data and other materials into the object of copyright protection.
(2) International protection of neighboring rights
At the International Summit of Heads of State held in Rome in 1961, the first Rome Convention for the Protection of Performers, Producers of Audiovisual Products and Broadcasting Organizations (referred to as the Rome Convention) on the protection of neighboring rights was concluded. The convention ensures the protection of performers’ performances, phonograms of producers of phonograms, and broadcast programs of broadcasting organizations. After that, the 'Convention for the Protection of Producers of Phonograms Against Unauthorized Copying of Phonograms' signed in 1971, the 'Trade-related Intellectual Property Agreement' passed in 1993, and the 'World Intellectual Property Organization Performance and The Phonograms Treaty and the Beijing Treaty on Audiovisual Performances concluded in Beijing, China in 2012 (not yet in force) both reaffirm the protection of related neighboring rights. Although my country has not joined the Rome Convention, it has joined the subsequent international treaties for the protection of neighboring rights. Therefore, the legitimate rights of my country’s performers, audio and video producers and broadcasting organizers can still be protected in the treaty member states .
Four, summary
Intellectual property protection is the foundation of international trade and an important guarantee for reducing the risk of infringement in international trade. In international trade in goods and services, what is traded is not only the product itself, but also the intellectual property that condenses human wisdom. Respect and make full use of the international intellectual property system, take the initiative in the layout of industrial property rights such as patents, trademarks, and designs, and take the initiative to incorporate and use international copyright (copyright) rules. This is not only an important protection for the achievements of intellectual labor, but also for Chinese enterprises to participate in the international Safe escort of trade.
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