The “Provisions on Intellectual Property Credit Management of CNIPA” has been released, and those entities which have dishonest IP records would be listed in the “blacklist”
On January 24, 2022, the “Provisions on Intellectual Property Credit Management of CNIPA ” (hereinafter referred to as the ” Provisions”) has been released and came into force on the same day. The main contents of this “Provisions” are as follows.
1. The categories of behaviors would be considered as dishonest behaviors.
Article 6 of the “Provisions” clearly lists 6 categories of specific dishonest behaviors, including: (1) abnormal patent application not aimed at protecting innovation; (2) malicious trademark registration application; (3) violation of laws and administrative regulations to engage in patent and trademark agency who have been punished by CNIPA; (4) submitting false materials or concealing important facts in the application for administrative confirmation; (5) the credit commitment is found to be untrue or fails to make such commitment; and (6) refusing to perform or evading the execution of administrative penalties and administrative rulings that have the ability to perform.
However, with regard to the above-mentioned category (1), Article 7 of the “Provisions”
2. What measures would be implemented to dishonest entities?
According to Article 9 of the “Provisions”, CNIPA could take the following measures:
(1) applications for administrative financial projects would be examined more strictly;
(2) applications for preferential policies and facilitation measures such as the fee reduction or priority examination on patent and trademark would be examined more strictly;
(3) the excellence appraisal qualification of CNIPA projects shall be canceled;
(4) the qualifications for the appraisal of national IP demonstration enterprises or advantageous enterprises shall be canceled;
(5) the frequency of inspections would be increased to those key supervision objects, and relevant supervision measures would be stricter;
(6) the credit commitment system is not applicable.
3. How to repair credit?
According to Article 13 of the “Provisions”, if the following conditions are met at the same time, a dishonest entity could apply for credit repair. The conditions include, (1) the subject has been identified as dishonest for 6 months; (2) the dishonest behavior has been corrected, the relevant obligations have been fulfilled, and the relevant consequences have been eliminated; and (3) the entity has not been subjected to any new dishonest behavior.
However, there are exceptions to Article 14 of the “Provisions”. If there are any of the following 4 situations, the credit would not be repaired: (1) it is less than 1 year since the last credit repair; (2) there are acts of falsification or intentional concealment of facts during the process of applying for credit repair; (3) during the process of applying for credit repair, it is determined to be dishonest again; and (4) laws, administrative regulations, and policy documents of the Party Central Committee and the State Council clearly stipulate that it cannot be repaired.
4. What are the incentive measures for honest entities?
Article 20 of the “Provisions” stipulates that for entities that have kept their honest records for three consecutive years, incentive measures may be adopted depending on the specific situations. Incentive measures mainly include:
(1) during the procedures of administrative approval, project approval and so on, entities would enjoy convenient services such as the processing would be simplified, speed up and etc.;
(2) in the allocation of government special funds, entities would be preferred objects under the same conditions;
(3) in the priority examination of patents, entities are the priority selection objects under the same conditions;
(4) in the approval of patent pre-examination and filing, the IPR Protection Center would give priority to entities; and the frequency of routine inspections and special inspections would be reduced.
Despite the “blacklist” of CNIPA, in practice, some local municipal supervision departments have included IP offenders on the list of the dishonesty with serious violations of law in accordance with the “Measures for the Administration of the List of the Dishonesty with Serious Illegal Laws for Market Supervision and Administration” (implemented on September 1, 2021), and published the list via the national enterprise credit publicity system. For example, the Ningbo Municipal Supervision Department of Zhejiang Province issued the first batch of “blacklist” in January this year, and 4 parties were included in the list of dishonesty for the crime of counterfeiting registered trademarks and infringing trade secrets.