NEWS

Standing Committee of the 15th Shantou Municipal People's Congress

Announcement

No. 4

The "Regulations on the Protection of Intellectual Property Rights in Shantou Special Economic Zone" was adopted at the fifth meeting of the Standing Committee of the 15th People's Congress of Shantou City on May 30, 2022, and is hereby announced and will come into effect on July 1, 2022.

Shantou Municipal People's Congress Standing Committee

May 30, 2022

Shantou Special Economic Zone Intellectual Property Protection Regulations

(Adopted at the fifth meeting of the Standing Committee of the 15th Shantou Municipal People’s Congress on May 30, 2022)

Table of contents

Chapter 1 General Provisions

Chapter 2 Administrative Protection

Chapter 3 Social Co-Governance

Chapter 4 Legal Liability

Chapter 5 Supplementary Provisions

Chapter 1 General Provisions

Article 1 In order to comprehensively strengthen the protection of intellectual property rights, stimulate the innovation vitality of the whole society, enhance the core competitiveness of the city, create a business environment with fair competition, and promote high-quality economic development, in accordance with the basic principles of relevant laws and administrative regulations, combined with the Shantou Special Economic Zone (hereinafter referred to as the Special Zone) actually enacts these regulations.

Article 2 These regulations apply to the protection of intellectual property rights and related work in the special zone.

The term “intellectual property rights” as mentioned in these Regulations refers to the exclusive rights enjoyed by obligees in accordance with the law with respect to the following objects:

(1) Works;

(2) Inventions, utility models, and designs;

(3) Trademark;

(4) Geographical indications;

(5) Trade secrets;

(6) Integrated circuit layout design;

(7) New plant varieties;

(8) Other objects specified by law.

Article 3 The protection of intellectual property rights shall follow the principles of comprehensive protection, strict protection, equal protection, and protection in accordance with the law, and adhere to the combination of administrative protection, judicial protection, and social co-governance to protect the legitimate rights and interests of intellectual property rights holders and related rights holders.

Article 4 Municipal, district (county) people's governments shall strengthen the organization and leadership of intellectual property protection work, incorporate intellectual property protection work into national economic and social development plans, and incorporate required funds into the fiscal budget at the same level.

Article 5 Municipal, district (county) market supervision departments are responsible for organizing, coordinating and implementing intellectual property protection work, assuming the management and protection responsibilities of patents, trademarks, geographical indication products and commercial secrets in accordance with the law, and mediating and adjudicating relevant disputes in accordance with the law.

Municipal, district (county) copyright departments are responsible for the management and protection of copyrights in accordance with the law, and mediate copyright disputes in accordance with the law. The power of administrative punishment in the field of copyright, as well as the power of administrative inspection and administrative enforcement measures related to the power of administrative punishment, are collectively exercised by the comprehensive administrative law enforcement departments of the city, district (county) cultural market.

Municipal, district (county) agricultural and rural departments and forestry departments are responsible for the protection of new plant varieties in accordance with the law. Municipal, district (county) agricultural and rural departments are responsible for the management and protection of geographical indications of agricultural products in accordance with the law.

Development and reform, education, science and technology, industry and information technology, public security, judicial administration, finance, human resources and social security, commerce, culture, radio, television, tourism and sports, health, finance, customs and other relevant departments (hereinafter collectively referred to as "intellectual property protection related departments" ”), carry out work related to intellectual property protection in accordance with their respective responsibilities.

The departments specified in paragraphs 1, 2 and 3 of this Article are hereafter collectively referred to as the competent departments for intellectual property protection.

Article 6 The Municipal People's Government shall promote cross-regional exchanges and cooperation in intellectual property protection, establish regional information sharing and rapid rights protection mechanisms for intellectual property protection, and achieve mutual assistance in intellectual property law enforcement, regulatory interaction, information exchange, and mutual learning of experience.

Article 7 Municipal, district (county) people's governments and intellectual property protection authorities shall make full use of the Internet, big data, blockchain, cloud computing, artificial intelligence and other information technologies to improve the efficiency and accuracy of combating infringement and counterfeiting, and enhance knowledge Intellectual property rights protection capabilities include tracing the source of property rights infringement, real-time monitoring, online identification, online evidence storage, statistical analysis, tracking and early warning.

Chapter 2 Administrative Protection

Article 8 The Municipal People's Government shall establish a coordination mechanism for intellectual property protection, establish a joint meeting on intellectual property, study and formulate major policies and strategic plans for intellectual property protection, and resolve major issues in intellectual property protection.The joint meeting shall be convened by the person in charge of the Municipal People's Government and shall be held at least once a year. The daily work of the joint meeting shall be undertaken by the municipal market supervision department.

Member units of the joint meeting should establish an information sharing and work reporting system for intellectual property protection. When discovering clues to intellectual property cases under the jurisdiction of other departments, they should promptly notify the department with jurisdiction in writing. After receiving the notification, the departments with jurisdiction shall promptly investigate and deal with the matter in accordance with the law.

Article 9 The municipal, district (county) people's governments shall establish special funds for intellectual property rights to be used for intellectual property incentives, utilization, protection, management, services, etc.

Special fund management measures shall be formulated by the municipal, district (county) people's governments and announced to the public.

Article 10 The municipal market supervision department shall formulate guidelines for the analysis and evaluation of intellectual property rights, establish a system for the release of analysis and evaluation reports on intellectual property rights in key areas, and provide opinions on the value and risks of intellectual property rights that may be involved in the process of carrying out economic and scientific and technological activities for relevant departments and industries. and suggestions.

Departments of development and reform, science and technology, industry and information technology should, in accordance with relevant regulations, conduct intellectual property rights inspections with the municipal market supervision department on major industrial plans, major government investment projects, major scientific and technological innovation projects, major technology projects, and key talent management and introduction projects. Analyze and comment to prevent intellectual property risks.

Article 11 Those who participate in government investment projects, government procurement and tendering, government financial support, commendations and awards, etc. shall submit a written commitment to the relevant competent authorities not to infringe the intellectual property rights of others, and stipulate the liability for breach of commitments when signing the agreement .

Municipal, district (county) people's governments and intellectual property protection authorities should encourage and guide enterprises to strengthen intellectual property compliance risk management, and guide enterprises to stipulate the content of intellectual property compliance commitments and corresponding legal responsibilities in contracts to prevent Intellectual Property Compliance Risks.

Article 12 Municipal, district (county) people's governments and intellectual property protection authorities shall work with relevant parties to establish an assistance mechanism for intellectual property rights protection, promptly publish risk warning information, and provide experts for enterprises and other organizations in handling domestic and foreign intellectual property disputes. , information, legal, consulting and other aspects of support to improve the level of domestic and foreign rights protection assistance services.

Encourage and support universities, scientific research institutions, social organizations, etc. to participate in rights protection assistance work. Encourage enterprises and industry associations to establish regional and industrial intellectual property protection alliances and collaboration mechanisms, and support enterprises in collective rights protection in domestic and foreign trade and investment.

Encourage and support natural persons, legal persons and unincorporated organizations to register their patent rights, trademark exclusive rights, copyrights and works-related rights with the General Administration of Customs in accordance with the law to prevent or stop the entry and exit of infringing goods.

Article 13 The Shantou Intellectual Property Protection Center and the China Shantou (Toy) Intellectual Property Rapid Rights Protection Center shall effectively perform their functions and establish one-stop services for rapid intellectual property review, rapid rights confirmation, and rapid rights protection within the areas authorized by the State Intellectual Property Office. Fast track to promote rapid collaborative protection of intellectual property rights.

Article 14 Municipal, district (county) people's governments, intellectual property protection authorities, and relevant departments shall strengthen the construction of intellectual property service platforms, support various intellectual property public service agencies to equally and effectively participate in intellectual property public service activities, and provide services to the public. Provide intellectual property policy guidance, query and retrieval, data download, education and training and other public services to innovative entities.

Article 15 In the administrative law enforcement procedures for trade secrets, the trade secret right holder shall provide preliminary evidence to prove that confidentiality measures have been taken to prove that the claimed trade secret has been kept confidential and that the trade secret has been infringed. The alleged infringer shall provide evidence to prove the right holder’s claim. are not trade secrets or there is no infringement of trade secrets.

For infringement of trade secrets, in addition to handling it in accordance with the provisions of the Anti-Unfair Competition Law of the People's Republic of China, the infringer may also be ordered to return or destroy the drawings, software or other relevant carriers containing the trade secrets, and shall not continue to disclose or use them. or allow others to use trade secrets. If the infringer uses the right holder's trade secrets to produce products that have not yet been sold, the infringer shall be supervised to destroy them, except where the right holder agrees to purchase or agrees to the infringer's continued sales.

Article 16 The municipal, district (county) people's governments, the competent authorities for intellectual property protection, and relevant departments shall strengthen the protection of intellectual property rights for innovative achievements in emerging industries, advantageous traditional industries, future industries, and other fields, and carry out targeted special actions to Cultivate high-quality patents, high-profile trademarks and advantageous industrial brands in key and core technology fields, and promote the intellectual property rights, standardization and industrialization of innovation results.

Article 17 The municipal, district (county) people's governments, the competent departments for intellectual property protection, and relevant departments shall carry out intellectual property protection work in the field of new agricultural and rural economies, and encourage and guide applicants who meet the registration conditions for geographical indications of agricultural products to register products with local characteristics. Register and protect the origin of agricultural products and geographical indications of agricultural products for agricultural products, and cultivate high-profile geographical indication product clusters.

Article 18 The competent department of intellectual property protection and relevant departments shall take measures to guide natural persons, legal persons and unincorporated organizations to protect time-honored brands, arts and crafts, cultural relics through work registration, patent application, trademark registration, trade secret protection, domain name registration, etc. Protect intellectual property rights on creative products, intangible cultural heritage, traditional folk literature and art, and safeguard their legitimate rights and interests.

Article 19 The municipal market supervision department and the municipal, district (county) cultural market comprehensive administrative law enforcement department shall strengthen the law enforcement of intellectual property rights in the online environment, guide and supervise e-commerce platform operators and network service providers to fulfill their obligations of intellectual property protection.

Strengthen the enforcement of intellectual property rights protection at exhibitions, major social activities, and sports events, carry out targeted special actions, and promptly investigate and deal with infringements.

Article 20 The competent department for intellectual property protection and relevant departments may select experts in relevant fields to serve as technical investigators to provide professional technical support for administrative enforcement of intellectual property rights.

Technical investigators are assigned or entrusted to engage in the following technical investigation work:

(1) Provide opinions on the scope, sequence, methods, etc. of technical fact investigation;

(2) Participate in investigation and evidence collection, and provide opinions on its methods, procedures, precautions, etc.;

(3) Put forward technical investigation opinions;

(4) Complete other related work.

Technical investigators have the obligation to keep confidential the case information obtained during the performance of investigation duties; if they need to recuse themselves due to circumstances that may affect the fair performance of their duties, they shall voluntarily recuse themselves or be ordered to recuse themselves by the case handling department.

Specific management measures for the deployment of technical investigators for intellectual property administrative law enforcement shall be formulated separately by the Municipal People's Government and announced to the public.

Article 21 If an intellectual property right owner or interested party complains about intellectual property infringement to the competent department for intellectual property protection and relevant departments, he or she may apply for an injunction at the same time. If the competent department of intellectual property protection and relevant departments believe that there is evidence to prove the existence of infringement, and if it is not stopped in time, the legitimate rights and interests of the right holder or interested parties will be irreparably damaged, they may first issue an injunction based on the complainant's application and order The alleged infringer shall immediately cease the alleged infringement.

Before issuing an injunction, the competent department for intellectual property protection and relevant departments shall require the right holder or interested party to provide corresponding guarantees; if the guarantee is not provided as required, the application for an injunction shall be rejected.

If the alleged infringer is dissatisfied with the injunction, he may apply for administrative reconsideration or file an administrative lawsuit in accordance with the law. The execution of the ban will not be suspended during administrative review or litigation.

If the infringement is not established after investigation, the competent department of intellectual property protection and relevant departments shall immediately lift the injunction; if the execution of the injunction causes losses to the other party, the intellectual property right holder or interested party who applied for the injunction shall compensate.

Article 22 The municipal market supervision department may entrust the Shantou Intellectual Property Protection Center, the China Shantou (Toys) Intellectual Property Rapid Rights Protection Center, or an organization with the function of managing public affairs in the field of intellectual property to carry out patent-related administrative rulings and administrative penalties. The entrusted department shall, within the scope of entrustment, conduct investigations and make relevant handling in the name of the entrusting agency, and shall not entrust it again. The entrusting agency shall bear the corresponding legal liability for the consequences arising therefrom.

Article 23 Establish a judicial confirmation mechanism for intellectual property mediation agreements. The parties may jointly apply to the people's court with jurisdiction for judicial confirmation within thirty days from the effective date of the mediation agreement. The People's Court shall review and handle the matter in accordance with the law.

Chapter 3 Social Co-Governance

Article 24 Municipal, district (county) people's governments shall promote the creation and high-quality application of high-value intellectual property rights, support innovative entities in applying for national and provincial intellectual property demonstration enterprises, and cultivate municipal intellectual property advantageous enterprises.

Strengthen the construction of intellectual property trading platforms, standardize the intellectual property trading market, support the gathering, trading, and transformation of domestic and foreign high-quality, high-value intellectual property rights within the special zone, and enjoy the relevant intellectual property incentive policies of the special zone.

Article 25: Improve the construction of the intellectual property integrity system and improve the joint punishment mechanism for dishonesty. The social credit department of the municipal people's government, together with the intellectual property protection department, will incorporate the intellectual property dishonesty and illegal information of natural persons, legal persons and unincorporated organizations into the public credit information system. , establish a public disclosure system for intentional infringement, repeated infringement, and malicious trademark registration and patent application lists, and promote credit-based hierarchical and classified supervision.

If the rights holder or interested party has objections to the intellectual property-related information disclosed by the public credit information system, he or she may file an objection application and submit relevant evidence, which will be handled by the relevant departments in accordance with the relevant regulations on public credit information management.

Article 26 If a natural person, legal person or unincorporated organization falls under any of the following circumstances, he or she shall not participate in government investment projects, government procurement and bidding, government financial support, commendations and awards related to intellectual property rights within five years from the date of determination. Activity:

(1) Providing false intellectual property application materials;

(2) Refusing to perform effective intellectual property administrative penalties, administrative rulings or judicial decisions;

(3) Infringement of intellectual property rights constitutes a crime;

(4) Any other infringement of intellectual property rights that seriously undermines the order of fair competition in the market.

Those who fall under the circumstances specified in the preceding paragraph and the circumstances are particularly serious may be permanently prohibited from participating in activities such as government investment projects, government procurement and bidding, government financial support, commendations and awards related to intellectual property rights.

Article 27 Support industry associations or industry alliances to carry out patent navigation, patent pool construction and operation, provide members and alliance members with intellectual property business training, information consultation, early warning, rights protection assistance, mediation and other services, and jointly build intellectual property risk defense system.

Encourage and support industry associations or industry alliances to formulate self-discipline conventions on intellectual property rights, admonish and punish members or alliance members who infringe the intellectual property rights of others, and report the admonitions and punishments to regulatory authorities.

Article 28 E-commerce platform operators and network service providers shall cooperate with the competent intellectual property protection authorities and relevant departments in investigating and handling intellectual property violations, and take necessary measures such as deleting, blocking, disconnecting links, terminating transactions and services, and requiring deposits. Measures should be taken to stop illegal activities and prevent the expansion of losses.

If e-commerce platform operators and network service providers fail to take necessary measures in a timely manner, they shall bear joint and several liability for the expanded damage.

Article 29 When an exhibition is held in this city, the exhibition sponsor or organizer shall require the exhibitor to submit a written commitment that it will not infringe the intellectual property rights of others. If necessary, the exhibitor may be required to provide relevant certification documents for intellectual property rights.

If an exhibitor fails to submit a written commitment or fails to provide relevant certification documents for intellectual property rights as required, the exhibition organizer or organizer shall not allow it to participate in the exhibition. Intellectual property protection, complaints, and infringement dispute handling during various exhibitions shall be implemented in accordance with relevant national and provincial regulations.

Article 30 Municipal, district (county) people's governments may encourage and support financial and insurance institutions to carry out intellectual property pledge financing business and intellectual property overseas infringement liability insurance, patent enforcement insurance, etc. through financial subsidies, risk compensation, entrepreneurial investment guidance, etc. Insurance businesses such as patent infringement loss insurance, improve intellectual property pledge financing, asset assessment, risk prevention and property disposal mechanisms involved in insurance, and increase financial support for small and medium-sized enterprises with independent intellectual property rights.

Article 31 The competent department for intellectual property protection shall encourage the development of intellectual property intermediary service agencies, regulate intermediary service activities such as intellectual property agency, service trade, asset evaluation, and information consultation, and strengthen the guidance and supervision of intellectual property intermediary service agencies.

Chapter 4 Legal Liability

Article 32 When handling intellectual property disputes, the competent department for intellectual property protection and relevant departments may first mediate in accordance with the law. Except for cases involving suspected intellectual property crimes, if the parties reach a settlement agreement or mediation agreement for an intellectual property dispute, and if the agreement does not harm the legitimate rights and interests of third parties and public interests and is actually performed, the administrative penalty may be given a lighter, reduced or no administrative penalty.

Article 33 If an infringer is subject to an administrative penalty for infringing the intellectual property rights of others and infringes the same intellectual property again after the administrative penalty decision takes effect, the competent department for intellectual property protection and relevant departments shall confiscate the illegal gains and impose a fine of three times the illegal business amount. A fine of not less than 100,000 yuan but not more than 500,000 yuan; if the illegal business volume cannot be determined, or there is no illegal business volume, a fine of not less than 100,000 yuan but not more than 500,000 yuan may be imposed; in serious cases, a fine of not less than 500,000 yuan but not more than 1 million yuan may be imposed. fine.

Article 34 Anyone who violates the provisions of Article 21 of these Regulations and refuses to comply with the injunction to stop the alleged infringement shall be fined not less than RMB 20,000 but not more than RMB 200,000 if it is determined to constitute an infringement.

Article 35 If a network service provider violates the provisions of Article 28 of these Regulations and delays or refuses to cooperate with the competent authorities for intellectual property protection and relevant departments without legitimate reasons in investigating and handling violations of intellectual property rights, the competent authorities for intellectual property protection and relevant departments shall The department shall order corrections within a time limit; if corrections are not made within the time limit, a fine of not less than 30,000 yuan but not more than 100,000 yuan shall be imposed; if losses are caused, the company shall be liable for compensation in accordance with the law.

Article 36: Staff members of the competent department for intellectual property protection and relevant departments neglect their duties, abuse their power, engage in malpractice for personal gain in the protection of intellectual property rights, or disclose without authorization commercial secrets learned in the protection and management of intellectual property rights, infringing upon the rights of the parties concerned. If there are legitimate rights and interests, the superior department or supervisory authority shall punish the directly responsible person in charge and other directly responsible persons in accordance with the law; if a crime is constituted, criminal liability shall be pursued in accordance with the law.

Article 37 For other intellectual property violations that violate these Regulations, if laws and regulations already have penalty provisions, those provisions shall prevail.

Chapter 5 Supplementary Provisions

Article 38 These Regulations will come into effect on July 1, 2022.

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