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.
