Tips for Patent Marking in Commercial Ads in China

China’s new Advertising Law came to effect on September 1, 2015. With a number of significant modifications, the revised Advertising Law imposes much stricter controls on patent marking in commercial advertising activities.

Use Your Patents in Standardized Manners

According to China Advertising Law, patent marking in an advertising shall follow the following rules:

• Where an advertisement involves a patented product or patented process, it shall clearly indicate the number of patent and the type of patent.
  

• Where a patent right has not been obtained, an advertisement shall not contain false information that the patent right has been obtained.
  

• It is prohibited to use a patent application for which the patent right has not been granted or to use a terminated, nullified or invalid patent in an advertisement.
  

Where the advertisement involving a patent falls within the circumstances prescribed in the above, the administrative department for industry and commerce shall order the cessation of the release of the advertisement and impose a fine of not more than RMB 100,000 on the advertiser.

The Advertising Agents and Advertisement Publishers Assume Liabilities on Some Occasions

In addition to the above, the China Advertising Law imposes liabilities upon advertising agents and advertisement publishers on some occasions. In case that an advertising agent or advertisement publisher, who knows clearly or ought to know that the advertisement involves illegal patent marking, still designs, produces, acts as agent for and publishes the advertisement, the administrative department for industry and commerce shall impose on it a fine of not more than RMB 100,000.

DON’T Counterfeit Patents of Others

An advertiser, advertising agent or advertisement publisher that counterfeits the patents of other persons, shall bear civil liabilities.

According to China Patent Law, the following conducts shall belong to conducts of counterfeiting patents:

• Indicating patent marks on products that have not been granted patent right or on the packaging thereof, continuing to indicate patent marks on products or the packaging thereof after the patent right is declared invalid or is terminated, or indicating the patent number of others on products on product packaging without authorization; 
  

• Selling the products mentioned in Item (1);
  

• Alleging in product instructions and other materials technologies or designs that have not been granted the patent right as patented technologies or patented designs, proclaiming patent applications to be patents, or using patent numbers of others without authorization so that the public mistake the involved technologies or designs for patented technologies or patented designs;
  

• Forging or altering patent certificates, patent documents or patent application documents;
  

• Other conducts that will result in public confusion and misidentification of technologies or designs that have not been granted the patent right as patented technologies or designs.
  

Indication of patent marks on patented products, products obtained directly according to the patented process or the packaging thereof in accordance with the law prior to the expiration of the patent right, and offering for sale or sales of the said products after the termination of the patent right shall not be a conduct of counterfeiting patents.

Based on the above, it is recommended that businesses conduct thorough compliance reviews of their commercial advertising activities in China.