This term is provided by the "Rule of Law Encyclopedia" project leading group office of China Law Society.
Industrial property rights refer to the exclusive rights that people enjoy in a certain area and within a certain period of time in accordance with the law for the creation of inventions, prominent marks and other intellectual achievements used in the production and circulation of goods. It is an international legal term and a general term for the ownership of invention patents, utility models, designs and trademarks.
(1) According to Item 2, Article 1 of the Paris Convention for the Protection of Industrial Property, "the objects of industrial property protection include patents, utility models, designs, trademarks, service marks, manufacturer names, source marks or names of origin, and the suppression of unfair competition."[1]
(2) According to the Paris Convention for the Protection of Industrial PropertyThe third paragraph of Article 1 stipulates that "industrial property rights should be understood in the broadest sense, and should be applied not only to industry and commerce itself, but also to agriculture and extractive industries, and to all manufactured products or natural products, such as alcohol, grains, tobacco leaves, fruits, livestock, mineral products, mineral water, beer, flowers, and cereal flour."[1]
Terminology
(1) Connotation: "Industrial property" refers to some exclusive rights of creative ideas or distinctive signs or marks similar to property rights in the industrial and commercial field, plus some rules to prevent misconduct in the same field.(Commentary on the Paris Convention for the Protection of Industrial Property Rights) It is the exclusive right that the law gives people to enjoy the creative ideas they have made and the distinctive signs and marks they have used in various industrial fields.[2]
(2) Extension: The scope of industrial property rights is relatively wide.Paragraph (2) of Article 1 of the Paris Convention for the Protection of Industrial Property stipulates that "the objects of industrial property protection include patents, utility models, designs, trademarks, service marks, manufacturer names, source marks or names of origin, and the suppression of unfair competition".
With the development of time and the progress of social science and technology, the scope of industrial property rights has become more and more extensive. In addition to the above protection objects, it also includes trade secrets and other protection objects.
The scope of industrial property protection in China is relatively small, mainly including trademark exclusive right and patent right.
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Although industrial property is a kind of right with property content, there is a big difference between industrial property and property ownership.
The object of industrial property rights is an intangible property
Property can be divided into tangible property and intangible property.The object of property ownership is something that occupies a certain space and can be easily controlled by people.The object of industrial property rights is the spiritual result created by mental labor. It does not have a certain material form and does not occupy a certain space. Therefore, the object of industrial property rights is intangible property.As the spiritual achievement as the object of industrial property does not have a certain material form, in fact, it is difficult to control the spiritual achievement, even it can be said that it cannot be possessed or controlled.This characteristic determines that industrial property rights are easy to be infringed by others, and when infringed by others, it is not easy to be found and identified, and it is also very difficult to deal with such disputes.Therefore, the industrial property laws of various countries have many different legal provisions from the protection of property ownership.In addition, it is precisely because the object of industrial property rights is intangible property, which determines the attachment of industrial property rights to tangible property.To spread and promote a spiritual achievement, it is often necessary to transform it into tangible property.However, the object of industrial property rights is not such a tangible carrier, but a spiritual achievement embodied in these material carriers.[3]
Generally, the acquisition shall be approved by the administrative authority in accordance with the legal order
The acquisition of civil rights can be directly generated according to law, can be generated according to authorization, or can be generated according to agreement.The production of industrial property rights is different from that of other civil rights.Under normal circumstances, the law requires that the spiritual achievements that wish to obtain industrial property rights be examined or registered.After examination, only those applications that meet the legal requirements can be approved.For example, the acquisition of patent rights needs to be examined by the national patent office, which only grants patent rights to inventions and creations that meet the requirements;The acquisition of trademark rights shall be subject to the examination of the Intellectual Property Office. Only qualified trademarks can acquire trademark rights.
Industrial property rights are exclusive
The exclusivity of industrial property rights is mainly shown as follows: First, only one industrial property right can be set on the same object of industrial property rights, and two or more industrial property rights cannot be set at the same time.Second, unless otherwise stipulated by law, the implementation or use of industrial property rights is completely under the control of the industrial property owner.Whether an industrial property right is implemented or used depends entirely on the will of the industrial property owner. Any other person who intends to implement or use the industrial property right must obtain the consent of the industrial property owner;The exploitation or use of the industrial property rights of others without consent constitutes an infringement of the industrial property rights of others.Third, no one other than the industrial property owner shall illegally interfere with or obstruct the industrial property owner's exercise of rights.
Industrial property rights have timeliness
The law endows creators with exclusive rights to their spiritual achievements.On the one hand, this has stimulated the creators' desire to continue their creative activities, but on the other hand, it will undoubtedly have a certain impact on the dissemination and wide application of spiritual achievements.In order to develop science and technology, spiritual achievements should not be monopolized by industrial property owners for a long time. Therefore, the law also gives certain restrictions on the protection period while protecting industrial property rights.Within the time limit prescribed by law, the industrial property owner may enjoy the exclusive right.After the expiration of the protection period, these spiritual achievements will enter the common domain, and anyone can use them freely without the consent of the owner of the spiritual achievements or the payment of royalties.
Industrial property rights are regional
The regionality of industrial property rights mainly includes the following aspects: First, whether a spiritual achievement can obtain industrial property rights is completely determined by the laws of various countries or regions.Second, the industrial property rights granted or recognized by a country or region are only protected by the laws of that country or region and have legal effect only in that country or region. Other countries or regions have no obligation to protect them.Third, the invalidation of industrial property rights in one country does not affect the effectiveness of industrial property rights in other countries in any way.
Due to the development of the internationalization trend of industrial property rights, the regionality of industrial property rights in some regions has been opened a gap.The feature of industrial property rights tells us to pay attention to the following issues:
First, if we want to protect an industrial property right in a foreign country, we must file an application in the requesting country or in accordance with the relevant international treaties in accordance with the international conventions for the protection of industrial property rights to which we are both parties or the agreements signed by both parties.Otherwise, this spiritual achievement cannot be protected by foreign laws.
Second, foreign industrial property rights enjoyed by foreigners have not been applied for in China or in accordance with relevant international treaties, and Chinese laws do not protect the foreign industrial property rights.
Third, technologies that have not obtained industrial property rights in China can be freely used because they are not protected by our laws.
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Main types
(1) Patents
(2) Trademark right
(3) Manufacturer name
(4) Source mark
(5) Name of origin
(6) Stop unfair competition
Related subjects involved
(1) The subject of the patent right refers to the person who enjoys the patent right, including the inventor and designer who enjoy the right, the unit of service invention creation, the patentee and the country under specific circumstances.[4]
(2) The legal transferee of a patent right refers to the person who acquires the property rights in the patent right by others according to law or contract.After obtaining the patent right, others become the subject of the patent right.The legal transferee includes both the transferee of a non service invention creation and the transferee of a service invention creation.
(3) The patent law of our country has made specific provisions on the issue of foreigners' invention and creation applying for and obtaining patent rights in China and becoming the subject of patent rights.Foreigners with permanent residence in China or foreign enterprises or other organizations with business offices in China enjoy the principle of national treatment, that is, they have the same right to apply for patents and obtain patent rights as Chinese citizens or units, so that they can become the subject of patent rights in China.
Whether foreigners who do not have a permanent residence in China and foreign enterprises or other organizations that do not have a business office in China can become the subject of Chinese patent rights, China's Patent Law stipulates: 1. It shall be handled in accordance with the bilateral agreement signed between their home country and China.2. It shall be handled in accordance with the international treaties signed between its home country and China.3. It shall be handled on the principle of reciprocity.
(4) Subject of trademark right: refers to the person who has exclusive rights to registered goods.Any legally operated enterprise can apply for trademark registration and become the subject of trademark rights, without taking whether it has the status of a legal person as the condition for obtaining the qualification of the subject of trademark rights.
(5) Foreign subjects of trademark rights: foreigners and foreign enterprises can also become subjects of trademark rights in China as long as they follow the provisions of trademark agreements or international treaties to which they are party, or follow the principle of reciprocity.
Specific rights
(1) The patentee of an invention or utility model has five exclusive rights to the patented product: the right to manufacture, the right to use, the right to promise to sell, the right to sell and the right to import.
(2) The patentee of a design shall have the right to manufacture, the right to promise to sell, the right to sell and the right to import the design.
(3) Exclusive right of trademark
The exclusive right is the right of exclusive use of the registered trademark.
The use of trademarks includes the use of trademarks on commodities, commodity packages or containers and commodity transaction documents, or in advertising, exhibitions and other commercial activities.The scope of the exclusive right to use a trademark refers to the use of an approved registered trademark on the goods approved for use, that is, the exclusive right to use a registered trademark, which is limited to the approved registered trademark and the goods approved for use.
(4) Trademark prohibition right: the prohibition right means that the trademark owner has the right to prohibit others from using its registered trademark without permission. The prohibition right and the exclusive right are two interrelated rights. The exclusive right is designed for the trademark owner to use the registered trademark, and the prohibition right involves the illegal use of the registered trademark by others.The scope of effect of the prohibition right is larger than that of the exclusive right.The trademark owner has the right to prohibit the unauthorized use of the same or similar trademark on the same or similar goods.
(5) Trademark licensing right and transfer right: licensing means that the owner of a registered trademark authorizes others to exercise his exclusive right to use the registered trademark.Assignment means that the owner of a registered trademark transfers his ownership of the registered trademark to another person.
Relevant procedures
1. Procedures for trademark registration
(1) Query
Trademark inquiry refers to the inquiry of whether the trademark applied for by the trademark registration applicant or its agent is the same or similar to the prior right trademark before filing the registration application.The inquiry is not a necessary procedure for trademark application registration. The scope of inquiry is limited to the registered trademarks and the trademarks in the application that have entered the database of the Trademark Office since the date of inquiry, and does not contain the information of prior rights in the review status. The results are not legally valid and are only for reference, and are not the basis for the Trademark Office to approve or reject the application.
(2) Review
Trademark examination is divided into formal examination and substantive examination. ①The trademark form examination (3-4 months) is very important to establish the application date. Since China's trademark registration adopts the principle of application first, once the application date occurs, it becomes the legal basis for determining the trademark right. The application date of trademark registration is subject to the date when the Trademark Office receives the application. The Trademark Office receives the trademark application and issues the acceptance notice for the application that meets the form requirements. ②Trademark substantive examination (12 months): the trademark substantive examination is a series of activities conducted by the trademark registration authority to check, search, analyze, compare, investigate and study whether the trademark registration application conforms to the provisions of the Trademark Law, and decide to give preliminary approval or reject the application.
(3) Announcement
Examination and approval of a trademark refers to the decision to allow the registration of a trademark that conforms to the relevant provisions of the Trademark Law after the application for trademark registration has been examined.And shall be announced in the Trademark Announcement.If no one raises any objection to the preliminarily approved trademark within three months from the date of publication of the preliminary approval announcement, the trademark shall be registered.
(4) Special procedures
The remedy procedure adopted in case of contradiction, conflict or other reasons in the process of trademark registration is not a necessary procedure, which mainly includes three procedures: trademark rejection review, trademark objection review, and trademark dispute.
2. Patent registration procedure
(1) Acceptance stage
After receiving the patent application, the Patent Office will examine it. If it meets the acceptance conditions, the Patent Office will determine the application date, give the application number, and after verifying the list of documents, issue the acceptance notice to notify the applicant.If the application documents are not typed, printed, illegible or altered;Or the drawings and pictures are not drawn with drawing tools and black ink, or the pictures are blurred or altered;Or the application documents are incomplete;Or the request is missing the name or address of the applicant;Or patent applications whose categories are not clear or can not be determined, and patent applications sent directly by foreign entities and individuals without foreign patent agencies will not be accepted.
(2) Preliminary review stage
Where an accepted patent application pays an application fee in accordance with the provisions, it shall automatically enter the preliminary examination stage.Before the preliminary examination, the patent application for invention shall first be subject to confidentiality examination, and if confidentiality is required, it shall be handled according to the confidentiality procedure.
At the time of preliminary examination, it is necessary to examine whether the application has obvious defects, mainly including whether the examination content falls within the scope of non patent right granted in the Patent Law, whether the obvious lack of technical content cannot constitute a technical solution, whether there is a lack of unity, whether the application documents are complete and whether the format meets the requirements.If it is a foreign applicant, qualification examination and application formalities examination shall also be carried out.If the application is unqualified, the Patent Office will notify the applicant to make corrections or state opinions within the specified time limit. If the applicant fails to reply within the specified time limit, the application will be deemed to have been withdrawn.If the defect is still not eliminated after reply, it shall be rejected.Where an application for a patent for invention passes the preliminary examination, a notification of passing the preliminary examination will be issued.In addition to the above examination, the application for a patent for utility model and design shall also be examined whether it is obviously the same as the existing patent, is not a new technical solution or a new design, and no reason for rejection is found after preliminary examination.It will enter the authorization order directly.
(3) Publication stage
An application for a patent for invention enters the publication stage from the date of issuance of the notification of passing the preliminary examination. If the applicant does not make a request for early publication, it will be published at the end of 18 months from the date of application.If the applicant requests early disclosure, the Patent Office may, at the request of the applicant, publish the application at an early date.After the application was published, the applicant obtained the right of temporary protection.
The stage of publication before the patent application for utility model and design is authorized.
(4) Substantive review stage
After the publication of an application for a patent for invention, if the applicant has filed a request for substantive examination and has taken effect, the applicant shall enter into the practical examination procedure.If the applicant has not filed a request for actual examination within three years from the date of application, or the request for actual examination has not become effective, the application shall be deemed to have been withdrawn.
During the actual examination, a comprehensive examination will be conducted on whether the patent application has novelty, inventiveness, practicality and other substantive conditions specified in the Patent Law.If, upon examination, it is found that the application does not meet the conditions for authorization or that there are various defects, the applicant will be notified to state his or her views or make amendments within the specified time. If the applicant fails to respond within the specified time limit, the application will be deemed withdrawn. If the application still does not meet the requirements after repeated replies, it will be rejected.
Applications for patents for utility models and designs have no substantive examination stage.
(5) Authorization phase
Where an application for a patent for utility model and design is preliminarily examined and an application for a patent for invention is substantially examined without finding any reason for rejection, the examiner shall make a notice of authorization, apply for registration of authorization, review the legal effect and integrity of the authorization text, and proofread and modify the bibliographic items of the patent application,Where the Patent Office issues a notice of authorization and a notice of registration formalities, the applicant shall, within two months after receiving the notice, go through the registration formalities and pay the prescribed fees in accordance with the requirements of the notice. If the registration formalities are completed on schedule, the Patent Office will grant the patent right, issue a patent certificate, record it in the patent register, and publish it in the Patent Gazette two months later,Failure to go through the registration procedures as required shall be deemed as waiver of the right to obtain the patent right.
(6) Review stage
The patent reexamination procedure is a relief way for the applicant when the patent application is rejected.According to Article 41 of the Patent Law, the Patent Reexamination Board accepted and examined the request for reexamination, and made a decision.The case of request for reexamination includes the case of request for reexamination of a patent due to dissatisfaction with the decision to reject the patent application in the preliminary examination and substantive examination procedures.Only patent applicants have the right to start the patent reexamination procedure, and must submit it to the Patent Reexamination Board of the State Intellectual Property Office within 3 months after receiving the notice of rejection.
(7) Invalid patent
According to Article 45 of the Patent Law, from the date when the patent administration department under the State Council announced the grant of the patent right, if any entity or individual considers that the grant of the patent right is not in conformity with the relevant provisions of this Law, it may request the Patent Reexamination Board to declare the patent right invalid.
The legal consequence of the invalidation of a patent right is that the patent right declared invalid is regarded as nonexistent from the beginning.If he is not satisfied with the decision declaring the patent right invalid or maintaining the patent right, he may, within three months from the date of receiving the notification, institute legal proceedings in the people's court.
The decision declaring the patent right invalid shall not have retroactive effect on the judgments and rulings of patent infringement made and executed by the people's court before the declaration of the patent right invalid, the decisions on the handling of patent infringement disputes that have been fulfilled or enforced, and the patent license contracts and patent right transfer contracts that have been fulfilled.However, compensation shall be made for losses caused to others due to the malicious intent of the patentee.
If, according to the above provisions, the patentee or the patent right assignor does not return the patent royalties or patent right transfer fees to the licensee or the patent right assignee, which obviously violates the principle of fairness, the patentee or the patent right assignor shall return the whole or part of the patent royalties or patent right transfer fees to the licensee or the patent right assignee.
Relevant laws
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（1） Paris Convention for the Protection of Industrial Property
Article 1
(1) The countries to which this Convention applies form an alliance to protect industrial property rights.
(2) The objects protected by industrial property rights include patents, utility models, designs, trademarks, service marks, manufacturer names, source marks or names of origin, and the suppression of unfair competition.
(3) Industrial property rights should be understood in the broadest sense. They should not only apply to industry and commerce itself, but also to agriculture and extractive industries. They should apply to all products or natural products, such as alcohol, grain, tobacco, fruit, livestock, mineral products, mineral water, beer, flowers and cereal flour.
(4) Patents shall include various industrial patents recognized by the laws of the Union countries, such as import patents, improvement patents, additional patents and additional certificates.
（2） Patent Law of the People's Republic of China
（3） Rules for the Implementation of the Patent Law of the People's Republic of China (revised in 2010)
（4） Trademark Law of the People's Republic of China (revised in 2013)
（5） Regulations for the Implementation of the Trademark Law of the People's Republic of China (2014 Revision)
（6） Detailed Rules for the Implementation of the Administrative Measures for the Adoption of International Standard Product Marks (for Trial Implementation)
（7） Anti Unfair Competition Law of the People's Republic of China (2017 Revision)
