Hotspots · Analysis

Li Ziqi's return has sparked a craze for intangible cultural heritage, analyzing the challenges and countermeasures in intellectual property protection

Recently, Li Ziqi's return to the public eye after a three-year hiatus has attracted widespread attention. Especially when she mentioned "intellectual property protection" in an interview with CCTV and released a new video on the theme of intangible cultural heritage, it brought the protection of intangible cultural heritage intellectual property into the spotlight. At the same time, Li Ziqi established the "Li Ziqi Intangible Cultural Heritage Workstation", dedicated to building an intellectual property protection system to protect the intellectual achievements of intangible cultural heritage inheritors and solve the problems faced by intangible cultural heritage inheritors.

In today's society, with the development of technology and cultural exchange, the value of intangible cultural heritage is increasingly prominent. However, intellectual property protection in the field of intangible cultural heritage faces many challenges. Malicious registration, counterfeiting, and plagiarism often occur, causing many inheritors of intangible cultural heritage to face difficulties. For example, the situation where the names of representative inheritors of intangible cultural heritage are registered by others and used in related goods or services is more prominent; The phenomenon of counterfeiting and theft of intangible cultural heritage products should not be underestimated; Some intangible cultural heritage often faces the risk of being "imitated" or "copied". In addition, innovative models such as "intangible cultural heritage+e-commerce" and "intangible cultural heritage+live streaming" have brought new vitality to the inheritance and development of intangible cultural heritage, but they have also increased the risk of intellectual property infringement.

Faced with the above difficulties, it is urgent to strengthen the protection of intellectual property rights of intangible cultural heritage. In fact, China implements a parallel operation model of administrative and judicial protection for intellectual property rights. When the intellectual property rights of intangible cultural heritage are infringed, the relevant rights holders can also choose multiple remedies.

Representative case

Taking the administrative public interest litigation case of intellectual property protection for "Zhenhu Embroidery" as an example. At the beginning of 2023, several embroidery women reported to the procuratorial organs through the "Su Embroidery Prosecution Service Center" and "Su Embroidery E-Inspection" WeChat mini programs that there were frequent intellectual property disputes in Su embroidery, mainly manifested as machine embroidery impersonating manual embroidery flooding the market, and frequent disputes over Su embroidery product design patents and Su embroidery draft copyrights. As a national intangible cultural heritage, Su embroidery and "Zhenhu embroidery" are national geographical indication products. However, these situations seriously affect the creation of embroidery women, business operations, and the development of the Su embroidery industry, and infringe on social and public interests.

On April 18, 2023, the People's Procuratorate of Huqiu District, Suzhou City, Jiangsu Province (hereinafter referred to as the "Huqiu District Procuratorate") filed an administrative public interest lawsuit on the protection of Suzhou embroidery, and issued a prosecutorial recommendation for administrative public interest litigation to the Huqiu District Market Supervision Bureau, promoting its investigation and punishment of the sale of counterfeit and inferior Suzhou embroidery products, and strengthening the protection of geographical indications and intangible cultural heritage. At the same time, suggestions from social governance inspections are being made to promote the strengthening of embroidery market management and intellectual property protection by the Zhenhu Embroidery Association. The association helps its members apply for numerous trademarks and patents, actively resolves intellectual property disputes, and enhances industry self-discipline. In addition, the Huqiu District Procuratorate takes the lead in coordinating administrative agencies and industry associations to jointly formulate opinions, promote the establishment of the "Su Embroidery Brand Legal Protection Center", and develop work guidelines.

The typical significance of this case lies in using public interest litigation as a starting point to protect intangible cultural heritage and geographical indication products, strengthen collaborative protection, promote social governance, promote leak prevention and source protection, and create a good situation of joint construction, governance, and sharing of intellectual property protection in the field of traditional culture.

Lawyer's advice

In fact, the formation and development of intangible cultural heritage is the crystallization of collective wisdom and has collective characteristics. The ownership relationship of original intangible cultural heritage inherited by groups is unclear, making it difficult to define the rights holders. Many intangible cultural heritages are passed down through collective inheritance, which makes it difficult to determine the ownership of original works. For example, some traditional dance, handicraft and other intangible cultural heritage projects involve numerous inheritors in their inheritance process, making it difficult to determine who the true rights holder is. This poses great challenges to the protection of intellectual property rights for intangible cultural heritage, as it is difficult to effectively protect them at the legal level without determining the rights holders. Therefore, we have also put forward several preliminary suggestions regarding the protection of intellectual property rights for intangible cultural heritage.

1、 Clarify the rights subject status of the inheritor

It is recommended that inheritors or relevant groups of intangible cultural heritage register and confirm the rights holders. For example, for some intangible cultural heritage projects inherited by families, it is recommended to organize the family inheritance history, evidence of skill inheritance, and other materials in advance, apply to relevant departments for recognition of the identity of the inheritor, and clarify their status as the subject of rights in intellectual property registration. This can avoid disputes caused by unclear rights holders and ensure that inheritors have legitimate claims to the intellectual property rights of intangible cultural heritage projects.

2、 Establish a collective rights subject system

For some intangible cultural heritage jointly owned by specific communities, ethnic groups, or groups, it is recommended to establish a collective rights subject system. The organization or institution representing the group acts as the exercise subject of collective rights, and manages and maintains the intellectual property rights of intangible cultural heritage on behalf of group members. At the same time, it is recommended to promptly establish internal management systems and decision-making mechanisms to ensure that the exercise of collective rights is in line with the interests and wishes of the group.

3、 When infringement occurs, collect and preserve evidence in a timely manner for future rights protection purposes

It is recommended that inheritors or relevant groups pay attention to the collection and preservation of daily evidence. In addition to the historical data of the inheritance of intangible cultural heritage projects and records of the process of skill inheritance, relevant honor certificates, emails exchanged with others, contracts, and other documents are also important materials to prove the content of rights, in order to prove the intellectual property ownership and specific infringement behavior of intangible cultural heritage in potential future litigation.

As a treasure of the Chinese nation, the protection of intellectual property rights for intangible cultural heritage is crucial. Intangible cultural heritage videos may involve the use of various materials such as music, images, and text, all of which may be protected by copyright or other types of intellectual property rights. Therefore, when producing intangible cultural heritage videos, authorization must also be obtained before use. Meanwhile, technological means such as adding watermarks and using timestamp services can be employed to protect the intellectual property rights of intangible cultural heritage videos. In addition, raising public awareness of intellectual property protection for intangible cultural heritage can also help promote the inheritance and development of intangible cultural heritage. In summary, the protection of intellectual property rights in intangible cultural heritage requires the joint efforts of the entire society.

Industry · New Policies

1. On October 30, 2024, the China National Intellectual Property Administration and the State Administration of Market Supervision and Administration jointly issued the Measures for the Calculation of Illegal Business Volume in Trademark Infringement Cases

According to the requirements of the "Plan for Deepening the Implementation of the Opinions on Strengthening Intellectual Property Protection", further enhance the level of rule of law in intellectual property protection and strengthen professional guidance for trademark administrative protection. The "Measures" consist of 19 articles, which systematically sort out and summarize the useful experience and practices in calculating the illegal operating amount of trademark infringement cases over the years. They provide detailed provisions on the definition of illegal operating amount, general standards for calculating illegal operating amount, calculation standards for illegal operating amount in complex infringement situations, handling of unverifiable actual illegal operating amount, special circumstances not included in illegal operating amount, and calculation methods for illegal operating amount in reverse transfer.

On October 29, 2024, the State Intellectual Property Administration published the "Guidelines on the Trademark Cancellation Procedure" on its website to assist business entities in understanding and correctly applying the trademark cancellation procedure
The Guidelines specify that if a registered trademark is not used for three consecutive years without justifiable reasons, any unit or individual may apply to revoke the trademark. Idle trademarks may face legal consequences of revocation of registration at any time due to long-term lack of actual use. For trademarks that violate relevant provisions of the Trademark Law, or for trademarks registered through deception or other improper means, relevant parties may request invalidation. The China National Intellectual Property Administration may also, on its own authority, declare invalid the above-mentioned trademarks that are improperly registered. At the same time, for malicious trademark applications, applicants will face warnings, fines, and other penalties, and the punishment information will also be included in the national enterprise credit information disclosure system and publicly disclosed to the society in accordance with the law.