CHINA Law and Practice Contributed by: Chuanhong Long, Bin Zhang, Cuicui Liang and Lei Fu, CCPIT Patent and Trademark Law Office
it could be protected in accordance with the Anti-Unfair Competition Law as product name, packaging or decoration. Registered or Unregistered Copyright Unlike with trade mark rights, once a work is cre - ated, the author automatically obtains copyright without the need for registration. Therefore, the claims are the same for registered or unregis - tered copyright. Types of infringement include direct infringement, indirect infringement, con - tributory infringement, and others. The Differences Between Trade Mark and Copyright Infringement In China, trade mark infringement refers to the use of an identical or similar trade mark on the same or similar goods, which may cause confu - sion. Copyright infringement involves the unau - thorised use of someone else’s work, violating the rights of the copyright owner. To success - fully claim trade mark or copyright infringement, the corresponding elements need to be proven, bearing in mind that the elements may vary for different types of infringement. A trade mark owner can bring claims for dilution or cyber-squatting. Claims for dilution can be brought when a trade mark owner requests the court to recognise that a trade mark has reached well-known status. Cyber-squatting is regulated in the Interpretation of the Supreme People’s Court on the Application of Laws in the Trial of Civil Disputes Over Domain Names of Computer Networks. Copyright Management Information The Copyright Law in China protects electronic information related to copyright management, but it does not provide a clear definition of what constitutes copyright management information. In Article 26 of the Regulations on the Protection
of the Right to Information Network Transmis - sion, “electronic right management information” is defined as “information that indicates the work and its author, the performance and its perform - er, the recording and video products and their creators, information about the rights holders of the works, performances, and recording and video products, information about the conditions of use, and the digital or coded representation of the aforementioned information”. This definition draws on the wording of relevant provisions in the WIPO Copyright Treaty and the WIPO Perfor - mances and Phonograms Treaty. As a member country of these two international treaties, Chi - na’s positioning of rights management informa - tion aligns with the requirements of the treaties. 7.3 Factors in Determining Infringement The factors for determining trade mark infringe - ment include: • the use of a mark as a trade mark for identify- ing the origin of the goods or service; • the use of an identical or similar trade mark; • the use of the same or similar goods/service; • the likelihood of confusion; and • the absence of exemption of infringement. The factors for determining copyright infringe - ment include: • an infringer using someone else’s work; • the use of a work without the permission of the copyright owner; and • the absence of fair use and exemption of infringement. Meanwhile, after the examination of the essen - tial elements of the right, a specific review of the infringing acts will be conducted, which may involve the application of the “access and sub - stantial similarity” rule.
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