How to Label Patent Mark Correctly in China?

In Recent, State Intellectual Property Office of China (“SIPO”) issued its No.63 order for the promulgation of Measures on the Labeling of the Patent Marks (the “Measures”) on its website, the Measures modifies the past Provisions on the Methods for Labeling the Patent Marks and Patent Numbers (the “Provisions”) and will come into effect from 1^st May of 2012. (the image is the certificate of patent in China)

Today, we will introduce you how to label your patent marks in China under the new Measures, and its new provisions.

I. SIPO and local offices are the administration of the marks labeling

By Article 3 of the Measures, the administration managing the patent labeling is the local department of patent, which is SIPO of nationwide and the local intellectual property office of cities and provinces.

II. The labeling party and patent information

According to Article 4 of the Measures, those who are entitled to label the patent is the patentee and the authorized ones after the approval of the patentee.

As to the labeled scope, the marks could be labeled on the package or specifications of the patented product or the product from the patented method. Comparing with the past Provisions, the labeled scope is extended with a new regulation of “on the written specifications and other materials”.

Then what information shall be included in the marks? As provided in Article 5 of the Measures, the patent mark shall contain following information:

(1) The patent type shall be marked in Chinese characters, such as China Invention Patent, China Utility Model Patent and China Design Patent;

(2) The patent number granted by the State Intellectual Property Office.

For these information, it shall be noted that only Chinese is applicable in the patent mark, and moreover though the provision about the constitution of the patent number is deleted, the patent number remains the constitution that “ZL” represents “patent”, the first and second numbers represent the year of patent application; the third number represents the patent type; and the following numbers represent the sequence number and computer parity bit.

Besides, the patentee or licensee may add other text or graphics, but additional text or graphics shall not mislead the public. For example, those multi-function glasses or massager, which are publicized with the big name or so called experts, claiming to cure the nearsightedness and has been granted the patent, are actually only patented with design not the function or method patent. And also, the mislead could be to imply those applied ones as the granted ones.

III. The labeling of the ones in application

The other main amendment in the Measures is to add the mark of the ones in application. By Article 7 of the Measures, the patent may be labeled on the package or specifications of the patented product or the product from the patented method before the right granting once it’s in Chinese characters and specifying applied classes, patent application number and “in application, not granted yet”.

IV. Legal responsibility

The Measures also covers the misconduct or counterfeit of the patent, Article 8 of the Measures says that on any misconduct as mentioned above, “the punishment shall be decided by the patent administration by Article 63 of the Patent Law.

The punishment provided in Article 63 of the Patent Law involves order for correction and publication, confiscation of the illegal income, the penalty of the 4 times of the illegal income or no more than 200, 000 yuan, and once the crime is established, the criminal liability shall also be sentenced.

The crime in the last paragraph mainly refers to the crime of counterfeit patent, which by law could be sentence to as highest as 3 years of imprisonment or detention, and accompanied with penalty or decided separately likewise.

Author: Albert Chen
Attorney-at-law of DeBund Law Offices
Co-author: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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Bridge IP Law Commentary is a website focus on the introduction of commercial laws in China, especially the intellectual property laws. All the posts here are our original works. And all news or cases referred here are from public reports, and our comments or analysis are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works. You may contact us shall you have any opinions or suggestions.

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