(Adopted at the Eighteenth Meeting of the Standing Committee of the Fourth Shenzhen Municipal People’s Congress on April 1, 2008)

Article 1 In order to strengthen the protection of intellectual property rights, maintain the order of market economy, and promote independent innovation, these rules are hereby formulated in accordance with the actual conditions of the Shenzhen Special Economic Zone.

Article 2 The municipal, district people’s governments (hereinafter referred to as the municipal, district governments) shall incorporate the protection of intellectual property rights into the national economic and social development plan, strengthen the education, training, publicity, and law enforcement for the protection of intellectual property rights, and improve the mechanism of the protection of intellectual property rights.

Article 3 The Shenzhen Municipal Joint Conference on the Protection of Intellectual Property Rights (hereinafter referred to as the joint conference) shall be formed to study and decide the major issues such as the working rules, coordination mechanism of the protection of intellectual property rights, etc.

The joint conference shall be composed of the related units responsible for the protection of intellectual property rights such as those at the municipal level in charge of intellectual property rights, trade and industry, education, science and technology, information, public security, judicial administration, finance, culture, industry and commerce, quality and technology supervision, urban management, legal affairs, and Customs, etc. If it is necessary, related social organizations, enterprises, and intermediary organizations may be invited to attend the joint conference without voting rights.

The municipal government shall convene or entrust the municipal department of intellectual property rights with convening the joint conference.

Article 4 In one of the following situations, the member unit of the joint conference may request the related departments to jointly convene a special working conference:

(1)a major case needs assistance;

(2)the transfer of a case needs coordination;

(3)a special law-enforcement action needs to be taken jointly;

(4)other matters need to be dealt with jointly.

The special working conference shall be organized by the unit which makes the request.

Article 5 If a member unit of the joint conference consider it necessary to have joint law enforcement with another unit, the unit shall make a written request to another unit to explain the primary information of the case such as the nature of the case, suspected infringer, suspected articles of infringement, tentatively estimated amount involved in the case, etc., and the related requirements for joint law enforcement.

The unit receiving a request shall respond within 3 business days.

In one of the following situations, the unit receiving a request shall take part in the joint law enforcement:

(1)the major case supervised by a department at a higher level than that of province;

(2)the special punishment activities of a priority region;

(3)the amount is especially large or the other circumstances are especially serious;

(4)the case may have major influence on the society.

Article 6 A system of information sharing and clue communicating in the protection of intellectual property rights shall be established.

The member units of the joint conference shall promptly exchange the working information such as the outcomes and punishments of their respective cases of the protection of intellectual property rights, etc., and put such information in the comprehensive database of law enforcement set up by the municipal department of intellectual property rights.

If a related unit finds a clue to a case within the jurisdiction of another department, the unit shall report it in writing to the department which has jurisdiction, the department receiving the report shall promptly make an investigation and feed back the investigation results in writing.

Article 7 The municipal department of intellectual property rights shall establish the good faith files of intellectual property rights to record the following items:

(1)the facts of infringement confirmed by the decision of administrative punishment, administrative adjudication in force and the outcome of settlement;

(2)the facts of infringement confirmed by the judicial adjudication document, arbitral award in force and the outcome of settlement;

(3)the other items which need to be recorded.

The good faith files may be available for units and individuals to make inquiries.

The municipal department of intellectual property rights may inform related offices of the related items of the good faith files in order to enter these items in the enterprises’ or individuals’ credit checking system.

Article 8 The municipal government shall establish a mechanism to protect intellectual property rights overseas, strengthen the study, prevention, and management of the problems of the protection of intellectual property rights overseas; and provide necessary support for the major overseas action to protect intellectual property rights related to this city.

Article 9 The units related to the protection of intellectual property rights shall encourage, support, and instruct enterprises, institutions, and social organizations to establish, improve the internal prevention and protection mechanism; strengthen the monitoring and studying of the related issues of law, policies, major events, etc. of the protection of intellectual property rights, and promptly make the results public to the society according to the rules and give an early warning if the results have major impact on this city.

The municipal department of intellectual property rights shall put forward a report on the state of the protection of intellectual property rights in this city on a regular basis and make the report public to the society.

Article 10 The units related to the protection of intellectual property rights shall strengthen the support, direction and supervision of the intermediary organizations which are engaged in the procuration, consultation, consultancy, appraisal, and evaluation of intellectual property rights.

The municipal department of intellectual property rights may publish jointly with related departments the list of professional intermediary organizations of intellectual property rights established according to law.

Article 11 Trade associations shall instruct and help their members to raise the consciousness of the protection of intellectual property rights, establish and improve the system of the protection of intellectual property rights, provide services in professional training, experience exchange, policy and legal advice concerning the protection of intellectual property rights, and assist members in the protection of intellectual property rights according to law.

Trade associations may punish members, who infringe on intellectual property rights, according to their statutes, and report punishments to the municipal department of intellectual property rights which will enter the punishments in the good faith files.

Article 12 Awards shall be granted, according to the related rules, to the units and individuals making great contributions to the protection of intellectual property rights and the crackdown of the acts infringing on intellectual property rights.

Article 13 The units or individuals undertaking exhibitions shall notify the municipal department of intellectual property rights of the time, place, and contents of the exhibitions 3 business days before the exhibitions start.

The units or individuals applying for taking part in exhibitions shall submit to the units undertaking exhibitions written promises that their products to be shown at exhibitions do not infringe on intellectual property rights; those who fail to submit the promises shall not be allowed by the units undertaking exhibitions to take part in the exhibitions; as for those who break their promises or submit false promises, the units undertaking exhibitions shall disqualify them from the exhibitions and get them out of the exhibitions.

Article 14 If there is infringement on intellectual property rights in the course of an exhibition, the related unit shall promptly make an investigation and impose a punishment, and inform the unit undertaking the exhibition of the outcome of settlement, the unit undertaking the exhibition shall cooperate.

Those whose infringement on intellectual property rights in the course of the exhibition is confirmed by the related unit shall not be allowed to take part in the exhibition of the same products in this city in two years from the date of the confirmation.

Article 15 Units or individuals in one of the following situations may not undertake government-investment projects, and may not be granted awards, financial aid or honorary titles by the municipal, district governments:

(1)to infringe on intellectual property rights and to constitute a crime;

(2)to get more than two administrative punishments for infringing on intellectual property rights;

(3)to refuse to implement the judicial adjudication document or administrative punishment decision which has already taken effect;

(4)the other infringements on intellectual property rights which have major impact on the society.

Article 16 It shall be prohibited in the government procurement to purchase goods, projects, and services which infringe on intellectual property rights.

If it is known or should be known that the goods, projects, and services provided by suppliers infringe on intellectual property rights, and the purchase is still carried out, the legal responsibility of the directly responsible person in charge and other directly responsible persons shall be investigated into according to the related rules.

In the government procurement, suppliers shall promise in writing that supplied goods, projects, and services do not infringe on intellectual property rights. Those who fail to make promises in writing may not take part in the government procurement; those who make false promises or whose infringement on intellectual property rights is confirmed by the related unit may not be allowed to take part in the government procurement in 3 years.

Article 17 If a case involving suspected infringement on intellectual property rights should be transferred to a public security organization according to law, the related unit shall promptly transfer the case to the public security organization and provide the following items:

(1)a case transfer notice;

(2)the investigation report of the case which include the involved amount, quantity standard, legal basis;

(3)the copies of the record of investigation and inquiry;

(4)the sample, photo, or other evidential materials of the articles suspected to infringe on intellectual property rights;

(5)the list of articles involved in the case.

The public security organization shall sign to acknowledge the receipt of the case for which the above-mentioned items are provided and deal with the case according to law.

Article 18 If the public security organization considers that a case of infringing on intellectual property rights is within the jurisdiction of the other department of administrative enforcement of law, it shall promptly transfer the case and provide the following items:

(1)a case transfer notice;

(2)the copies of the materials concerning reporting the case, accepting the case, and placing the case on file;

(3)the copies of the materials concerning investigation and evidence-taking;

(4)the notice of obtaining evidence and the list of obtained evidence;

(5)the report or explanation of the findings of investigation.

The other department shall sign to acknowledge the receipt of the case for which the above-mentioned items are provided by the public security organization and deal with the case according to law.

Article 19 When collecting evidence, the departments related to the protection of intellectual property rights may make on-the-spot investigations according to specific situations, the investigated units or individuals shall cooperate, and shall not create obstacles or refuse. In those on-the-spot investigations, obligees or their agents may be asked to give their assistance, but the units and individuals under investigation shall be informed at the same time.

Notary organizations shall, within 3 business days, conserve evidence for those who apply for the conservation of evidence according to law, regulations.

Article 20 The parties concerned in a case of the protection of intellectual property rights shall provide the related evidential materials according to facts.

If one of the following situations applies to a party concerned, the related unit may determine whether infringing on rights is constituted and what harmful consequences are, and impose a administrative punishment according to ascertained facts, appraisal results, and the evidence provided by the obligee:

(1)there is evidence that the party concerned suspected of infringing on intellectual property rights has the evidence, but refuses to provide the evidence without justification;

(2)to fail to submit evidential materials and to explain the facts within prescribed time limit;

(3)to refuse to accept an investigation.

Article 21 The amount of illegal business value shall mean the value of infringing products in manufacturing, storage, transportation, and sale when the action to infringe on intellectual property rights is going on. The value of sold infringing products shall be calculated according to the prices of the actual sale. The value of infringing products in manufacturing, storage, transportation, and those not sold yet shall be calculated according to marked prices or the average prices of infringing products in the ascertained actual sale. If there is no marked price or the prices in the actual sale cannot be ascertained, the calculation shall be made according to the middle prices of infringing products in the market. If an infringer has not have any administrative adjudication or criminal punishment after taking infringing action many times on different occasions, the amount of illegal business value shall be calculated accumulatively.

Article 22 If the obligee of technology secrets can prove that the technology the opposite party suspected of infringing his/her technology secrets uses is the same technology as his/her technology secrets or the same technology in substance and there is the possibility for the opposite party to have access to his/her technology secrets, and the opposite party cannot prove one of the following facts, the opposite shall be found infringing on others’ technology secrets:

(1)obtaining the secrets by independent development, research and manufacturing;

(2)obtaining the secrets by reverse engineering;

(3)obtaining the secrets through open channels or other lawful channels.

Article 23 The amount of losses of the obligee of technology secrets shall mean the amount of losses caused by infringing acts to the obligee of technology secrets.

The calculation of the amount of losses of the obligee of technology secrets shall be made by taking factors such as the cost of research and development, earnings from putting technology secrets into practice, obtainable benefits, time to keep competitive advantages, cost of technology secrets transfer or permit, reduction of the market share, etc. as a whole.

If the amount of losses of the obligee of technology secrets cannot be calculated, the amount of the illegal business value of the infringer shall be regarded as the amount of losses of the obligee of technology secrets.

Article 24 The related units may take the following measures of law enforcement in their investigation to deal with cases concerning the infringement on intellectual property rights:

(1)an on-the-spot investigation;

(2)to look up, copy, temporarily distress or seal up the business materials such as business records, bills, account books, contracts, etc.;

(3)to order parties concerned to provide certificates of ownership by a prescribed time limit or to explain the facts of cases and provided corresponding materials;

(4)to seal up, distress, register and keep products, articles suspected of infringing on rights;

(5)to make an on-the-spot investigation by means of survey, photographing, video recording, etc.

Article 25 If an infringer, after being fined for infringing on intellectual property

rights, infringes on the same kind of intellectual property rights within 2 years from the date when the decision on administrative punishments takes effect, the law enforcement department related to intellectual property rights may impose a fine doubling the amount of the corresponding fine stipulated by the related law, regulations.

If law, regulations stipulate ordering an infringer to stop infringing acts but no imposing a fine, and an infringer refuses to implement the decision of administrative punishments to order stopping infringing acts, the related unit may impose a fine of more than 30,000 but less than 100,000 RMB.

Article 26 Before or during litigation, the obligee whose intellectual property rights have been infringed on may apply to the people’s court for a temporary injunction to prohibit the infringer from continuing to use his/her intellectual property rights when the people’s court has not decided the case.

A security shall be provided according to the rules to apply for a temporary injunction.

Article 27 When a people’s court is hearing a case concerning intellectual property rights, the agent attorney of a party concerned may bring a writ of inquiry issued by the people’s court to make investigations and take the evidence which is kept by the related departments of the state and cannot be obtained by the party concerned himself/herself and the other evidence which the party concerned cannot obtain himself/herself for objective causes, the related units or individuals shall give their assistance.

Article 28 if the units related to the protection of intellectual property rights and their staff members abuse power, neglect duties, practice favoritism and engage in irregularities, or leak the commercial secrets learned in the course of law enforcement, the administrative responsibility of the responsible person in charge and other directly responsible persons shall be investigated into according to the related rules; those who are suspected of committing a crime shall be transferred to a judicial office to be dealt with according to law.

Article 29 The municipal government may formulate specific measures on the implement of these rules.

Article 30 These rules shall take effect as of July 1, 2008.

(Note: The text above is a translation of the Chinese version for reference only. In case of any discrepancy between the two versions, the original published Chinese version shall prevail.)