Key Points to Foreign Company’s IPR Litigation Preparation in China

By Luo Yanjie

With the development of economy, China pays more and more attention to the protection of intellectual property. But whether the patent, trademark or copyright, a lot of high value intellectual property rights belong to foreign companies. Facing the still serious infringing situation, the civil lawsuit is still the most common and reliable means to strike infringement. As for foreign investors, what deserves the attention when preparing lawsuit materials? Today we would like to share the topic with readers as follows:

I. A notarized entrustment of attorney

In domestic suits, it only need to sign a power of attorney to hire a lawyer but no notarization procedures But for foreign main body to hire a China lawyer, a signature is not enough. Article 242 of Civil Procedure Law:

“Any power of attorney to engage a lawyer or other agent within the territory of the People’s Republic of China by a foreign national, stateless person or a foreign enterprise or organization that has no domicile in the People’s Republic of China, or any power of attorney mailed or forwarded from outside the territory of the People’s Republic of China must be authenticated by a notary office in the country where that person or enterprise or organization has domicile and confirmed by the Chinese embassy or consulate stationed in that country or must go through the notary formalities stipulated in the relevant bilateral treaties between China and that country before it becomes effective.”

According to the above provision, foreign companies’ engagement of a lawyer need two steps: first is the local “Notarization”, in the countries of continental legal system, it’s the local notary public; and in the countries of Anglo-American law system, it’s the lawyer witness. The second is the certification by the Chinese embassy or consulate. In practice, besides the POA, the indictment, subject qualification documents (similar with business license in China) also need notarization and certification.

According to the experience of our website, we suggest foreign companies issue sufficient rights power of attorney in one time, so the China lawyer can handle all related issues in the future. Especially in intellectual property litigation, compared to the general procedure, it is more likely to have related procedures such as preservation application, injunction application, the implementation application. If foreign companies issue sufficient rights power of attorney in one time, it can greatly save the lawsuit time and improve the efficiency of right protection.

II. Evidence preparation should include the localization

In intellectual property lawsuit, the plaintiff generally needs three kinds of evidence: 1, right certification; 2, evidence of infringing behavior by defendant; 3, the amount of compensation evidence. The third kind of evidence is different in each case, we won’t talk about it. The other two kinds of evidence are introduced briefly as follows:

1, right certificate

In trademark and patent cases, due to the region restriction, foreign company general should submit a patent certificate issued by China Patent Bureau issued, a trademark certificate issued by China Trademark Bureau and copyright certificate issued by the copyright office. For such certificates are from the administrative authority, no notary is necessary for them.

In addition, It is generally for well-known copyright works to be registered in the local administrative departments. According to “Provisions about foreign copyright certifying agencies set up in China” issued by China Copyright Bureau the provisions, as long as the registered department is in the directory of foreign certification agencies, the certification can be used in China. But attention is required, because it is formed aboard, according to the “Provisions on evidence in civil litigation People’s by Supreme Court” article 11, ” … … Should be proved by local notary, and the people’s Republic of China Embassy in this country to be certified or performance of the people’s Republic of China and the country where specified in the relevant treaty concluded by the certification formalities “, which also needs notarization and certification

2, the evidence of infringement by the defendant

In practice, evidence of infringing behavior by defendant generally formed by notary. Because the infringement occurs in China, so the right holder could hire a lawyer to do the notary in China. As a result it needs not the notarization and certification because it is issued by local notary office. If foreign company can give the lawyer enough power as described above, it can greatly improve the efficiency of lawsuit.

Other recommended posts on our website:
1. The Actual Term of Trademark Registration in China
2. How to Apply for the Trademark Record in China Custom
3. How to improve the success rate of trademark registration in China?
4. Matters for Attention in Trademark Refusal Review in China
5. Introduction of China’s Legal System of Trademark Renewal
6. Introduction on the Regulations concerning the Capital Contribution in IPR or Domain Name in China
7. The Copyright Registration in China Could Be FREE?
8. China Copyright Protection Term Longer than EU’s?
9. Matters for Attention in the Patent Preliminary Injunction Application in China(I)

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