(Translation for Reference Only)

Regulations of Shanghai Municipality on Intellectual Property Rights Protection

(Adopted at the 28th Session of the Standing Committee of the 15th Shanghai Municipal People's Congress on December 30, 2020)

Contents

Chapter I General Provisions

Chapter II Institutional Construction

Chapter III Administrative Protection

Chapter IV Judicial Protection

Chapter V Social Governance

Chapter VI Supplementary Provision

Chapter I General Provisions

Article 1

With a view to comprehensively strengthening intellectual property rights protection, stimulating the innovative and creative energy, promoting the establishment of Shanghai as a science and technology innovation hub and fostering a world-class business and innovation environment, these Regulations are formulated based on the Civil Code of the People's Republic of China, the Patent Law of the People's Republic of China, the Trademark Law of the People's Republic of China, the Copyright Law of the People's Republic of China, other laws and administrative rules, and in the light of the actual circumstances of this Municipality.

Article 2

These Regulations apply to the protection, administration and relevant activities of the intellectual property within the administrative areas of this Municipality.

In these Regulations, "intellectual property" refers to the exclusive rights enjoyed by the right holders in accordance with the law on the following objects:

1. works;

2. inventions, utility models, industrial designs;

3. trademarks;

4. geographical indications;

5. trade secrets;

6. layout designs of integrated circuit;

7. new plant varieties; and

8. other objects as prescribed by law.

Article 3

This Municipality shall carry out the work of intellectual property rights protection, follow the principle of "strict, extensive, speedy and joint protection", adhere to integrating administrative protection, judicial protection and social governance, deepen the reform of the system and mechanism of intellectual property rights protection, and construct an international intellectual property rights protection highland with a complete, sound system and superior environment.

Article 4

The municipal and district people's governments shall strengthen the leadership over intellectual property rights protection, improve the protection system, set up joint meetings on intellectual property rights protection, organize, direct and supervise the protection of intellectual property rights within their respective administrative areas, research and formulate major policies and strategic plans, and pursue coordinated progress in major issues for the intellectual property rights protection, and the specific work shall be undertaken by the intellectual property department at the same level.

The work on intellectual property rights protection shall be incorporated into national economic and social development plans, and serve as a component for government's performance assessment.

Article 5

The municipal and district intellectual property departments shall take charge of the organization, coordination and implementation of the intellectual property rights protection, and take responsibilities for protecting patents, trademarks and geographical indications according to law.

The municipal copyright department shall be responsible for the copyright protection across this Municipality, and the competent district copyright departments take charge of copyright protection within their own administrative areas.

The municipal and district departments of agriculture and rural affairs and forestry shall take charge of the protection of new plant varieties.

The relevant departments of State-owned assets supervision, economy and informatization, science and technology, commerce, public security, development & reform, finance and judicial administration shall cooperate in intellectual property rights protection according to their respective duties and responsibilities.

The municipal intellectual property department shall play the role of an organizer and coordinator, cooperate closely with other departments responsible for the management of intellectual property rights protection, and take the lead in establishing working mechanisms such as information circulars, consultation meetings and joint issuance of documents.

Article 6

This Municipality shall integrate and optimize the law enforcement resources and promote the comprehensive law enforcement in the area of intellectual property according to the requirements of intellectual property rights protection.

The municipal and district departments of market supervision and cultural tourism, based on their own duties and responsibilities, investigate and punish the unlawful acts related to the patents, trademarks, geographical indications, trade secrets and copyrights.

Article 7

This Municipality shall advance the consultation mechanism and information sharing about intellectual property rights protection in the Yangtze River Delta, build a fast regional intellectual property rights protection mechanism, improve the working mechanism for case filing assistance, investigation and evidence collection, mutual recognition of evidence and joint emergency response, implement joint credit discipline on major unlawful acts related with intellectual property, and achieve mutuality in law enforcement, supervision, information exchange and experience sharing.

This Municipality shall deepen collaboration on intellectual property rights protection with other provinces and cities, and cooperate with relevant administrative and judicial departments of other provinces and cities in such work as investigation and evidence collection and service of documents.

Article 8

This Municipality shall broaden the international cooperation and exchange channels for intellectual property, strengthen the cooperation and exchange with the World Intellectual Property Organization and other international organizations, and set up an intellectual property rights protection system in line with international standards.

The social organizations are encouraged and supported to engage in international exchange and cooperation in intellectual property rights protection.

Article 9

This Municipality shall recommend and reward the organizations and persons that have made significant contributions to intellectual property rights protection according to relevant provisions.

Article 10

The standing committees of the municipal and district people's congresses shall enhance supervision over the intellectual property rights protection by listening to or deliberating over the special work reports and conducting law enforcement inspections.

Chapter II Institutional Construction

Article 11

The departments of intellectual property, copyright, agriculture and rural affairs, forestry, and market supervision (hereinafter collectively referred to as "relevant intellectual property departments") shall provide guidance and services for such activities as to the acquisition, transfer and protection of market entities' rights and interests in intellectual property.

Article 12

The relevant intellectual property departments shall work together with other relevant departments to lead higher education institutions, scientific research institutions and enterprises to establish and improve the system for managing intellectual property and implement the administrative norms for intellectual property.

The supervisory departments of State-owned assets and the departments entrusted to conduct supervision shall work in collaboration with relevant intellectual property departments to enhance the guidance over the work on intellectual property rights protection of the State-owned enterprises in this Municipality, determine and implement the system of chief responsible person for intellectual property management and rights protection, and improve the management and protection of the intellectual property of the State-owned enterprises.

Article 13

The municipal intellectual property department shall promote the establishment of the rapid patents review mechanism, and provide national key industries and the strategic emerging industries of this Municipality with fast tracks for patent application and confirmation according to relevant provisions.

Article 14

This Municipality shall establish an intellectual property evaluation system. The municipal and district people's governments, for the purpose of preventing intellectual property risks, shall analyze and evaluate the patents and other intellectual property's conditions related with the technologies involved with the major industry planning, government-funded high-tech projects and other important economic activities prior to the approval of such planning, projects and activities.

Article 15

This Municipality shall establish and improve the early warning mechanism for intellectual property rights protection. The relevant intellectual property departments shall enhance the monitoring and research on the current conditions, trends and competitive situation of the intellectual property, make the public know about the major intellectual property events, and give early warning against the potential risks thereof.

The relevant intellectual property departments shall, in collaboration with the department of commerce and relevant industry organizations, analyze and research the major international intellectual property events and the modifications of foreign international intellectual property laws, so as to give risk warning for the enterprises of this Municipality engaging in foreign trade and investment.

Article 16

This Municipality shall improve the system of outbound intellectual property transfer.

According to the provisions of the State, the municipal intellectual property department shall, in collaboration with the departments of economy and informatization, commerce, and science and technology, formulate and improve the procedures and rules for outbound intellectual property transfer involved in technology export, regulate the public order for outbound transfer, and safeguard national security and major public interests; the relevant departments of this Municipality shall cooperate with relevant state departments to improve the reviewing of outbound intellectual property transfer in the mergers and acquisitions of domestic enterprises by foreign investors.

Article 17

The departments at all levels shall incorporate the funds for purchasing computer software into government budgets, and purchase the common software through the centralized government procurement.

The municipal copyright department shall cooperate with the municipal departments of e-government, State-owned assets supervision and economy and informatization to carry out routine supervision and inspection and training on the use of genuine software.

Article 18

This Municipality shall accelerate the development of credit system in the area of intellectual property, establish and improve the mechanism for information collection, credit evaluation and punishments against dishonest behaviors in the area of intellectual property. The information arising from the judicial opinions or administrative penalties against the violations of intellectual property rights committed by natural persons, legal persons and unincorporated organizations shall be incorporated into the public credit information for public sharing according to law; the class-category based supervision and administration centering on credit evaluation shall be implemented; and the disciplinary measures against the dishonest subjects shall be taken.

Article 19

This Municipality shall, according to the requirements of the State, launch pilot programs in developing new mechanisms for intellectual property rights protections, disputes resolution, overseas rights protection, support the establishment of Pudong New Area as the intellectual property demonstration area and take the lead in the exploration and establishment of a unified intellectual property management and law enforcement system, and the achievements may be promoted across this Municipality when the conditions permit.

Chapter III Administrative Protection

Article 20

This Municipality shall advance the establishment of the unified and comprehensive service platform for intellectual property informatization, and the relevant intellectual property departments shall, by combining the Integrated Online Platform for government services and the Integrated Online Administration for urban management, optimize government service procedures and enhance information sharing to achieve the handling of services related with intellectual property only in one portal with only one click.

All types of public intellectual property service agencies shall expand their service areas, and launch quick review, registration, confirmation, monitoring and early warning, rights protection, retrieval and search and other related services for intellectual property.

Article 21

The municipal intellectual property department shall establish and improve the system for key trademark protection catalogue in this Municipality, and incorporate the registered trademarks with higher popularity, greater market influence and prone to be infringed and counterfeited into the scope of key protection.

The municipal copyright department shall, according to the early warning catalogue for key copyright protection released by the relevant state departments, issue early warning to the main internet service providers in this Municipality and enhance the monitoring over the copyright violations. The culture and tourism departments shall strengthen the investigation and punishment against the unauthorized and illegal distribution through the information networks of the works subject to early warning of the key copyright protection.

The relevant intellectual property departments shall strengthen the supervision and inspection in the areas where the intellectual property rights violations are pervasive and likely to happen, and may carry out special operations or joint law enforcement when necessary.

Article 22

The departments of intellectual property and market supervision shall actively guide the applicants and agencies to apply for trademark registration and patents application according to law, and investigate and punish the malicious trademark applications and abnormal patent applications not for the purpose of use according to law.

Article 23

The relevant intellectual property departments shall hand over to the competent department the clues out of their own jurisdictions found during the investigations of intellectual property right violations. The judicial departments may hand over to the relevant intellectual property departments the clues about the intellectual property violations found during the handling of cases.

Article 24

Where the relevant intellectual property departments find any violation of intellectual property rights is suspected to have constituted a crime and needs to be investigated to obtain evidence to decide whether such violations meet the criminal case filing standards, they shall hand over the cases to the public security department. If the public security department decides not to file the cases, such cases shall be returned.

The public security department that accepts the handover of cases shall investigate in a timely manner and give feedback to the department which makes the handover.

Article 25

The municipal departments of intellectual property, agriculture and rural areas, and forestry may initiate mediation according to the wills of both parties to the disputes in patents and new plant varieties; if the mediation reaches an agreement, the mediation agreement shall be prepared. If the parties refuse mediation or the mediation fails, the cases shall be handled according to law.

The cases of patents infringement disputes shall be filed in this Municipality, which shall be conducted online through the Integrated Online Platform. The municipal intellectual property department shall accept the filing materials submitted by the parties, and issue written receipts. If the materials meet the legal requirements, the cases shall be registered and accepted immediately; if the materials do not meet the requirements, an explanation shall be made; if the materials do not meet the requirements, a complete written notice shall be made for correction within a specified time limit.

Article 26

This Municipality shall establish the mechanism of technical investigators for intellectual property.

The relevant intellectual property departments select and appoint experts from relevant areas as technical investigators to help deal with the intellectual property cases with high technical significance including patents, technical secrets and computer software. The specific requirements and procedures for such selection and appointment shall be determined and made known to the public by the relevant intellectual property departments.

Article 27

Any department and individual shall have the right to make complaints or reports about the violations of intellectual property rights with the relevant intellectual property departments.

The relevant intellectual property departments shall improve the mechanisms for the complaints and reports, disclose the service channels and methods to the public, and settle the complaints and reports according to law within the specified time limit.

The relevant intellectual property departments shall promptly inform the complainant and reporter of the results, but shall keep the contents of the reports and reporters in confidential according to law.

Chapter IV Judicial Protection

Article 28

This Municipality shall establish and improve the mechanism that connects administrative law enforcement with judicial protection in the aspect of intellectual property rights protection, and promote the interconnection and sharing of case clues, monitoring data and typical cases between the administrative departments and the judicial departments.

The people's courts shall deepen the reform of trial mechanism integrating civil, criminal and administrative intellectual property cases, and improve the trial efficiency through case streamlining and online litigation services.

Article 29

The people's courts shall strengthen the guidance on intellectual property litigations. The people's courts shall fully explain the burden of proof and the legal consequences of the failure to prove, encourage the parties to make full use of notarization, digital platforms and other third-party methods to collect and fix the evidence.

Article 30

This Municipality shall enhance the degree of compensation for intellectual property rights infringement, and in serious intentional cases, impose punitive damages according to law.

Article 31

The people's courts and people's procuratorates shall improve the construction of the mechanism for unified application of law, and strengthen the guidance by issuing typical cases and compiling handling guidelines for similar cases to strengthen the unified application of law.

Article 32

This Municipality shall establish the judicial confirmation mechanism for the intellectual property mediation agreements. If the parties apply to the people's courts to confirm the mediation agreements, the people's courts shall review them according to law and make a decision with regard to whether to confirm them or not.

Article 33

This Municipality shall explore and promote the public interest litigations in the area of intellectual property.

The people's procuratorates may engage in public interest litigations by pre-trial procuratorial suggestions, supervision of litigations, support for litigations or by other means.

Article 34

The people's procuratorates shall give full play to their supervisory role, effectively carry out such supervision in civil, criminal and administrative intellectual property cases, increase the efforts to combat intellectual property crimes, and strictly investigate the criminal liability.

Chapter V Social Governance

Article 35

This Municipality shall strengthen the legal publicity of intellectual property rights protection, and build a sound environment conducive to innovation and creation.

The municipal intellectual property department shall, in collaboration with relevant departments, regularly prepare the White Papers on intellectual property rights protection and typical cases of this Municipality.

The relevant intellectual property departments and the judicial departments shall, together with the departments of publicity and judicial administration, carry out the legal publicity through case explanations or in other methods, and improve the awareness of intellectual property rights protection among the social public by promoting such events as the World Intellectual Property Day, World Book and Copyright Day and Chinese Brands Day.

Article 36

The higher education institutions, scientific research organizations and enterprises shall establish and improve an internal management and protection mechanism for intellectual property, improve protection awareness, strengthen protection measures, and improve self-protection capabilities.

The higher education institutions shall be encouraged and supported to set up courses in and cultivate talents for intellectual property rights protection. The higher education institutions, scientific research organizations and enterprises are encouraged and supported to introduce domestic and foreign high-level talents in intellectual property rights protection through the market-oriented mechanism.

Article 37

The industry organizations shall strengthen self-discipline management, establish and improve the norms for intellectual property rights protection, and incorporate intellectual property rights protection into group standards and the model contracts, urge their members to cooperate with the departments in intellectual property in administrative law enforcement, admonish and punish their members who infringe other people's intellectual property rights, and report the information about such admonishment and punishments to the relevant intellectual property departments.

The intellectual property departments shall support the development of the industry organizations for intellectual property services, promote the establishment of industrial service standards, upgrade service capabilities and improve the service quality.

Article 38

This Municipality shall advance the establishment of intellectual property compliance commitment system. Those who participate in such activities as government procurement and bidding, government funding support, recommendations and awards shall submit to the competent departments a written commitment that no intellectual property infringement has been committed, and shall, when signing a contract, agree on the liability for breach of the commitment.

Natural persons, legal persons and unincorporated organizations shall be encouraged to agree on the content of the compliance commitment and the liability for breach of the commitment in the contract.

Article 39

Where conference and exhibition activities including large displays, shows, promotions and trade fairs are held in this Municipality, the conference and exhibition organizers shall ask the participants to submit the written compliance commitment that declares no infringement of others' intellectual property rights or relevant documents about the intellectual property. If the failure to submit them occurs, the conference and exhibition organizers shall not allow them to participate in the conference and exhibition-related activities.

The conference and exhibition organizers may set up an intellectual property dispute resolution body on their own initiatives or in joint efforts with the arbitration agencies, industry associations, intellectual property service organizations and others according to the scale, duration and other circumstances of the conference and exhibition activities.

The municipal intellectual property department shall, in collaboration with the municipal department of commerce, formulate the rules for intellectual property rights protection in conference and exhibition activities, promote the incorporation of intellectual property protection articles into the relevant model contracts.

Article 40

The operators of e-commerce platforms shall establish an internal management and speedy response mechanism for the intellectual property infringement, and resolve the intellectual property disputes in a timely manner so as to protect the legitimate rights and interests of intellectual property right holders in the area of e-commerce.

The municipal intellectual property department shall, in collaboration with the municipal department of commerce, formulate the guidelines for e-commerce intellectual property rights protection, regulate the complaints handling by the operators of e-commerce platforms, and guide and urge the operators of e-commerce platforms to fulfill their obligations in intellectual property rights protection.

Article 41

The arbitration agencies in this Municipality shall be supported to engage in the arbitration over the intellectual property disputes.

The arbitration agencies in this Municipality shall be encouraged to enhance their professional expertise in intellectual property arbitration, and extensively attract the intellectual property professionals to participate in the arbitration.

The renowned overseas arbitration and dispute resolution bodies shall be encouraged to engage in intellectual property dispute arbitration in this Municipality.

Article 42

The industry associations, intellectual property service organizations, international trade promotion organizations and others shall be encouraged to establish industrial and professional mediation agencies.

The mediation agencies of all kinds shall be encouraged to engage in intellectual property dispute mediation, provide convenient and efficient mediation service, and guide the parties to resort to mediation to resolve the intellectual property disputes.

The relevant intellectual property departments and the judicial administration departments shall provide necessary support and guidance for the mediation agencies in resolving intellectual property disputes, and strengthen their coordination and cooperation with the people's courts to improve the mediation quality and capabilities.

Article 43

The notarial agencies shall be encouraged to innovate their notarial certification and service modes, and, supported by such technologies as digital signatures, data encryption, and blockchain, to provide services for original works protection, and rights protection and evidence collection for intellectual property.

Article 44

This Municipality shall improve the assistance mechanism for overseas intellectual property rights protection, and enhance the administrative guidance and assistance for enterprises' overseas rights protection. The overseas rights protection agencies established by the departments of commerce, market supervision and intellectual property shall provide information, law and other kinds of support for the enterprises and other organizations in dealing with overseas intellectual property disputes.

The key sectors and enterprises shall be supported to establish overseas intellectual property rights protection alliances to promote the exchanges and cooperation of the members in intellectual property rights protection.

Article 45

The relevant intellectual property departments shall strengthen the cooperation with the e-commerce platform operators, industry organizations and professional agencies, and, by applying the new digital technologies such as big data, artificial intelligence and blockchain, advance the innovation in intellectual property governance especially in the aspects of verification of case clues and information, flow tracking of key commodities, the internet dissemination of important works, intellectual property transfer, monitoring and recognition of infringements, collection and storage of evidence and online dispute resolutions.

Chapter VI Supplementary Provision

Article 46

These Regulations shall be effective as of March 1, 2021.