Editor's note: Zhang Can is an assistant judge at Beijing Intellectual Property Court. The article reflects the author's opinions and not necessarily the views of CGTN.

The Civil Code of the People's Republic of China, considered a milestone legislation for both China and the world, has come into effect since January 1, 2021. The fundamental objective of the Civil Code is to facilitate the protection of people's extensive civil rights and provide sufficient remedies for right holders whenever their rights are infringed upon.

Apart from serving as a policy instrument for stimulating innovation, intellectual property (IP) rights have long been considered a significant category of private rights. The IP regime, thus, is deeply rooted in and closely related to the civil law system.

With social and economic development, people have become increasingly vigilant about protecting their IP rights, viewing them as equally important as other traditional civil rights, such as life, property and freedom. As a civil code promulgated in the new era, the Civil Code has to respond to this trend properly for both private and public concerns. This is the reason it addresses the IP issue more vigorously than preceding civil legislations. 

Taking those concerning technical contracts into consideration, there are 52 clauses associated with IP rights, among which Article 123 and Article 1185 of the Code are purely IP-related clauses.

Article 123 stipulates that the parties to civil legal relations enjoy IP rights in accordance with the law and lists them explicitly in respect of different objects, including works, inventions, trademarks, geographic indications and trade secrets. It is the declaration and confirmation of the civil law status of IP rights and links up the Civil Code with respective specific IP laws, such as the Copyright Law, the Patent Law and the Trademark Law.

Article 1185 maintains that where any harm caused intentionally by a tort to the IP rights of another person has serious circumstances, the victim of the tort shall have the right to require corresponding punitive damages. This article aims to emphasize the function of punitive compensation in strengthening the protection of IP rights. It should be noted that if the court is inclined to apply punitive compensation in a particular case, it has to turn to the specific IP laws that have set specific provisions regarding punitive compensation. 

Article 1185 in the Civil Code is a general and declarative clause lacking judicial operability.

Despite the fact that we seldom directly use the two above-mentioned clauses to solve specific cases, the relevance of IP rights to the Civil Code is not confined to the literal level. As IP is a branch of civil law, other clauses and provisions could still be applied in certain IP-related cases, which may include at least the following three scenarios.

First, the principle of good faith is deemed as the imperative clause of the civil law. Its primary connotation is to require the parties in civil legal relations to adhere to honesty and fulfill their promises. Just as the good faith principle cultivates the spirit of contract that works as the underlying pillar of the market economy, it has also played an essential role in the trademark authorization and confirmation system in fighting against bad-faith registration.

The number of domestic trademark applications in China has surpassed that of any other country across the world. However, the phenomenon of malicious trademark squatting and bad-faith registration without the intention of actual use has long been criticized. Attempting to address this problem, the 2013 Trademark Law incorporated the principle of good faith. Article 7 of the law states that in the application for registration or use of a trademark, the principle of good faith shall be followed. The article has been preserved in its 2019 amendment, which is currently in effect.

The good faith principle is also present in several other specific articles in the Trademark Law that are frequently deployed in trademark examination and judicial practices to reject illegal and improper registration application.

Second, to cease infringing on another's IP is a common remedy for IP infringements. However, under certain circumstances, there could be an exception of not ordering the infringer to cease IP infringement but pay reasonable royalties instead.

For instance, Article 26 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Patent Infringement Dispute Cases (II) provides that where the defendant constitutes an infringement upon the patent and the patentee requests the defendant to cease the infringing act, the court shall give support thereto, but in consideration of national interests and public interests, the court may not order the defendant to cease the alleged act but to pay the corresponding expenses.

Obviously, this is a typical application of the principle of fairness, which is highly representative of the civil spirit and the soul of civil law, to strike a balance between the patent holder's exclusive rights and the reasonable utilization of patented technology by a benign infringer.

Third, according to the hierarchical theory of applicable law, if the rule is stipulated in both the general law and the specific law, the specific law shall prevail when its application is triggered.

Take tort liability as an example. Although the Civil Code has general provisions pertaining to tort conduct and liabilities, the specific IP laws make their own tort rules regarding patent infringement, trademark infringement, and copyright infringement. Nevertheless, with social development and technological advancement, new tort forms are emerging, which cannot be squarely fit into the current tort rules specified in the IP laws. This would give rise to the application of the general tort rules in the Civil Code.

A case in point is the abuse of IP rights in the internet environment. According to the E-Commerce Law, the right holders can issue a take-down notice to the e-commerce platform whenever they find their IP rights have been infringed upon. To avoid secondary liability, the e-commerce platform would remove the alleged infringing items in nine out of 10 cases. This notice-removal mechanism could easily be abused by bad-faith right holders whose IP rights are invalid or flawed. However, such behavior cannot be punished by the tort rules in any IP law. It is in these cases that we shall turn to the general tort rules in the Civil Code.

In conclusion, the Civil Code's declarative clauses demonstrating China's resolute attitude toward malicious IP infringement, concrete articles and complementary civil principles could enhance the protection of IP rights in China.

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