Litigating intellectual property rights, especially patents, requires quite some specialised expertise. For a long time, therefore, patent disputes were dealt with by people’s intermediate or higher courts. But since ever more Chinese companies are patenting their design patents, utility patents and invention patents, in many cases subsidised by the government, the work load of these courts have been growing correspondingly.
To see whether some of the work load, namely the design patent and utility patent cases, that are generally deemed more simple, can be transferred to “grassroots” courts, such as district and municipal courts, a pilot programme was started in 2009 at Haidian District Court in Beijing, Yiwu Municipal People’s Court in Zhejiang Province and Kunshan Municipal People’s Court in Jiangsu Province, which was considered successful, so that now the Supreme People’s Court has announced here (Chinese) to expand the number of grassroots courts that can deal with intellectual property rights cases.
The argument that now the experience with IP is bigger and that many judges have more expertise in this field. But the question remains how the judges of these grassroots courts can have built up expertise with IP cases, unless of course they have worked at a people’s intermediate or higher court before.
In the Chinese language grandmother is pópo (婆婆) and a spicy grandmother is là pópo (辣婆婆). As you would already expect it is a bad idea to fool around with the feelings of a spicy grandmother. Spicy Grandmother, the enterprise name of a chain of restaurants in Beijing, was annexed without permission in the trademark logo of Yu Xiang Spicy Grandmother (Yú xiāng là pópo 渝乡辣婆婆), a competing chain of restaurants in Beijing and Shijiazhuang.
Spicy Grandmother sued but lost the case in first instance. They appealed at Beijing No. 2 Intermediate People’s Court, which will rule on the case.
Christian Nowak, Science and Technology Adviser of BEA (Bureau d’Electronic Appliqué), a Belgian company that manufacturing sensors for especially doors. BEA is active in China since 1996. First only with a representative office. But the smart thing BEA did was they registered their invention patents and design patents and a trademark in China.
In 2002, BEA discovered that their product was copied.
China IPR SME Helpdesk posted a video of Nowak explaining how BEA dealt with the case.
According to Mr Nowak he went to a patent attorney, who advised him to go to the State Administration for Industry and Commerce. ”And on Monday Morning we were in Shantou city, north of Hong Kong, ringing the bell of the State Administration of Industry and Commerce and requesting the manager in charge of the patent infringement.”
Say what?
Mr Nowak must have mistaken the State Administration for Industry and Commerce (which is in charge of trademark infringements) with the State Intellectual Property Office (which is in charge of patent infringements).
The raid by the State Administration for Industry and Commerce, or more likely, the State Intellectual Property Office, was successful.
Mr Nowak is enthusiastic about the administrative enforcement route and says that litigation costs too much time and money. If it is simple straightforward case the administrative enforcement route might be recommendable. The real question is, however, whether the activities at the infringing premise will not be resumed a little bit later somewhere else. To avoid this waterbedding effect, one might want to really strike hard at the infringers, piercing the waterbed so to say. A big advantage of the litigation enforcement route is that damages can be compensated. Then there is the criminal enforcement route, which can put the infringer behind bars, but which of course has higher evidentiary thresholds.
Here are some of the administrations one can go to to enforce one’s intellectual property rights:
- State Administration for Industry and Commerce (SAIC) = trademarks
- Administration of Quality Supervision, Inspection and Quarantine (AQSIQ) = in case of shoddy goods
Dan Prud’homme of the European Chamber of Commerce in China wrote a study called Dulling the cutting edge: How Patent-Related Policies and Practices Hamper Innovation in China. To summarise 226 pages: Prud’homme basically says that China’s patent promotion policy which includes quotas per 10,000 people is not conducive to quality and he asserts that [...]
The Supreme People’s Court commemorated the first Trademark Law of the People’s Republic of China in August 1982, see here. Remember 1982? It was the year when Deng Xiaoping was in power at the Zhongnanhai, Reagan in the White House and Brezhnev in the Kremlin. Deng had set out a new course for China in [...]
Counterfeit trademarks in China: Castel’s “uniqueness is arrested”, Penfolds has become victim of “get rich in a hurry” By Danny Friedmann Until the majority of the Chinese population is more familiar with foreign brand names, foreign brands should take the destiny of their own brand in China in their own hand. If foreign [...]
Professor Thomas Cottier, managing director of the World Trade Institute (WTI) and Swiss National Centre of Competence in Research (NCCR) Trade Regulation shared his expertise on international trade law at the Summer Programme organised by the WTI and CUHK in Hong Kong.
Professor Cottier covered the international framework for IP protection, from the Paris Convention to the TRIPs Agreement, and about intellectual property in a trade law setting, and the crown jewel of the WTO: its effective dispute settlement.
After professor Cottier’s lectures one realises in a profound way that the life of international law is in its national law. China’s system is monistic, in that international law rules supreme over its national law.
IP Dragon spent his holiday participating in the WTI/CUHK Summer Programme on intellectual property, indeed co-organised by the World Trade Institute in Bern and Chinese University of Hong Kong, from July 9 -20.
The coming days I would like to give you an overview of some of the things, relevant to intellectual property rights in China and Hong Kong, I learned from professors Thomas Cottier (WTI) see here, Arno Hold (WTI), Michael Pendleton (CUHK), Bryan Mercurio (CUHK), Peter K. Yu (Drake University), Elliot Papageorgiou (Rouse), Mathias Schaeli (Swiss IPI), Philip Monaghan (Mayer Brown) and last but not least Ron Marchant (former head of IPO UK). Beside getting updates on bilateral and multilateral treaties, WIPO, WTO, law in China and Hong Kong, the event brought professors together from Bangladesh, China, India, Indonesia, Laos, South Africa, Switzerland, Trinidad and Tobago, and Vietnam, to discuss intellectual property and policy issues.
The French newspaper Le Midi Libre reports about a wine from the domaine de la Romanée Conti à Vosne-Romanée which was counterfeited in China. Oftentimes the counterfeiters manufacture a product that is almost identical to the genuine product. However, this time the counterfeiters are no connaiseurs. Unfortunately many people in their target market, China, also lack [...]
The goal of the China IP Index is to “assess and analyze the different development status of intellectual property capacities in 31 provinces and municipalities of China through setting up a scientific, systematic and formal system.” The result, that only focuses on protection (namely application and registration) of IPRs and not on enforcement and excludes the whole category of copyright is claimed to be of “substantial significance”, by the researchers of the index here. Whether this is justified will be questioned after an overview of the ranking. continue reading…
Later in June or beginning of July the National Copyright Administration of China (NCAC) will release the second draft of the revised Copyright Law. The first draft of the revised version was released March 31, 2012, see here. The NCAC announced that 81 of the 88 provisions will be changed. This as a reaction to [...]
EBM Papst Group, producer of energy-saving fans and motors has set up an assembly line in Shanghai. They have invested 8 million U.S. dollars in their activities in China, trying to stay ahead of the competition and preventing IPR infringements. Hans-Jochen Belike, general manager of EBM Papst has experienced infringed ventilators in China and Germany, [...]
IP Dragon Alert The Chinese delegation has signed the Beijing Treaty on Audiovisual Performances ( 视听表演北京条约) on June 26, 2012, read the Chinese article here. It’s the first international intellectual property treaty that was “born” in China. World Intellectual Property Organization (WIPO), who convened the Diplometic Conference, gave the following statistics: – 156 member states; 6 intergovernmental [...]
Senator Tom Coburn of Oklahoma said after visiting China, that a country that doesn’t protect human rights would have no respect for IPR and other minor rights, according to Liu Kin-ming in a Hong Kong Standard article. But why have an either or solution? The State Council approved and authorized the National Human Rights Action Plan of China (2012-2015)国家人权行动计划 [...]
Professor Bryan Mercurio, specialist in international economic law, with particular expertise in WTO law, free trade agreements and the intersection between international trade and intellectual property law and Associate Dean of Chinese University of Hong Kong, has written an interesting brief: ‘The Protection and Enforcement of Intellectual Property in China since Accession to the WTO: [...]
IP Dragon has received many questions and answered them privately. Now we would like to invite you to come up with a question you want answered publicly. During the next IP Dragon Roar podcast Danny Friedmann will answer some of them.
Please let us know whether you want to stay anonymous or not.
Professor Llewelyn before a scholarly audience, including professor Barton Beebe on the right
Professor David Llewelyn’s latest presentation did not miss to resonate with a scholarly audience. The earlier presentations IP Dragon attended included the highly relevant topic such as “Leveraging your IP” and testified an ability to clarify in a concise way, such as explaining all IP in one hour. This time professor Llewelyn spoke at the ‘Charting the New Frontiers of Intellectual Property Protection of Luxury Brands’, June 16, 2012 at HKU.
IPR is getting too complex
As the last speaker of the day professor Llewelyn gave his view unapologetically on the previous presentations which included a deluge of social theories: ”Veblen? Intellectual property rights are already too complex.” continue reading…
IP Dragon has received many questions and answered them privately. Now we would like to invite you to come up with a question you want answered publicly. During the next IP Dragon Roar podcast Danny Friedmann will answer some of them.
Please let us know whether you want to stay anonymous or not.
There is a Diplomatic Conference on the Protection of Audiovisual Performance going on. Convened by the World Intellectual Property Organization and hosted by the People’s Republic of China. It started June 20 and will be concluded on June 26, 2012. After 12 years the Audiovisual Performances Treaty got a new lease on life. Professor Justin [...]
Saturday IP Dragon was at the conference ‘Charting the New Frontiers of Intellectual Property Protection of Luxury Brands’ organised by the University of Hong Kong. Professor Peter K. Yu of Drake University Law School, Des Moines in Iowa, U.S., gave an insightful presentation on some of the complexities of counterfeiting in China.
Already in 2005 Ernst & Young suggested that the luxury industry in China would first grow 20% per year and between 2008 and 2015 with 10% until sales would exceed 11.5 billion U.S. dollars in 2015 and “Chinese consumers could be as influential as the Japanese and account for 29% of all global luxury goods purchases. A temporary obstacle seems to be counterfeiting. continue reading…
Here is IP Dragon Roar’s second podcast about “Spirit, Software, World-of-War Craft, Compulsory Licensing”. First Jamon Yerger and Matthew Kowalak discuss the following blog posts: Stir up people to innovate by slogan or by a change of culture Supreme People’s Court Took AMSC v. Sinovel Wind Group Case On Software Copyright Infringement Trend [...]
Articles 46 and 48 draft version of the amendment of the Copyright Law of March 2012 sounded false in the ears of many musicians in China and abroad. After their respective protests and that of music industry interest groups the National Copyright Association of China (NCA) has decided to revise the draft before the end of the month.
What is all the noise about? ….
In ancient China there was a sophisticated alarm system with drums and flags to warn of approaching danger
Innovative pharmaceuticals take notice. Reuters’ Tan Ee Lyn asserts that China “overhauled parts of its intellectual property laws” to allow generics companies to start exploiting patented medicines cheaply. In other words allowing compulsory licensing. Tan mentioned one medicine for HIV patients as a possible candidate for compulsory licensing.
“China is known to be looking at Gilead Sciences Inc’s tenofovir, which is recommended by the World Health Organisation as part of a first-line cocktail treatment for AIDS patients, two continue reading…
Remember IP Dragon’s 2007 article about font maker Beijing University Founder Sued Blizzard Over Font Copyright Infringements? In 2011 the Beijing Higher People’s Court decided that Blizzard did indeed infringe five of Founder’s copyrighted fonts. But even though Founder sought 408 million RMB in damages, it was only rewarded 1.4 million RMB. Not enough to cover 2.08 [...]
In November, 2011, IP Dragon posed the question: Is American Superconductor (AMSC) the 21st century version of Don Quixote?, when it sued Sinovel Wind Group of Beijing for violation of trade secrets and software copyright infringement and demanded damages of 1.2 billion U.S. dollar, read here. AMSC has filed four law suits against Sinovel [...]
“Ask and it will be given to you; seek and you will find; knock and the door will be opened to you”… ”Read slogans and you shall innovate.” The last sentence it not according to the Gospel of Matthew, but according to the Gospel of the Beijing Municipal government. If you have been in [...]
In the Mainland of China there is still growth in the amount of people that start to smoke; now there are 350 million smokers in China. And a scientist specialised in refining cigarettes to the taste of Chinese smokers, has even been made a member of the prestigious Chinese Academy of Engineering. Not so in Hong Kong. Here the future of smoking goes slowly out as the light of a burning cigarette. But still the number of smokers in the fragrant harbour is substantial. According to the University of Hong there are 760,000 smokers in Hong Kong, 380,000 will die of smoker-related diseases, see here. The World Health Organization confirms that half of all smokers will die of smoker related diseases. 7,000 people per year die in Hong Kong because of tobacco. But if a product is allowed to be sold, is it fair to restrict of even prohibit the use of a trademark on these products? continue reading…
What would you do if you knew the future? Wouldn’t you made decisions that anticipate on that future to be fully prepared? The alchemists over at trendwatching.com have made it their business to extrapolate contemporary facts (as valuable as lead) into projections of the future (as valuable as gold). Then again, trendwatching might not be just passively revealing existent trends, but when done in a convincing way, it is able to reinforce or create events. Probably a combination is the case with trendwatching.com’s newest trend of the month. continue reading…
Instead of brainwashing and grooming a person to become a political leader in a rival country, like in The Manchurian Candidate, a 1959 political thriller by Richard Condon, it is probably easier to try to sell the rival country computer chips with backdoor technology that their military will use. Backdoor technology is an additional undocumented feature deliberately inserted into the device for extra functionality. Military graded chips with a backdoor in missile systems, airplanes or nuclear reactors could be controlled by an external entity from a distance.
(You do not need a backdoor into IP Dragon to influence us, just filling out this ultra short survey will do, thanks!)
Sergei Skorobogatov of the Faculty of Computer Science and Technology, University of Cambridge claims that he developed a “QVL technology” that can detect a backdoor in chips, and that he actually found one in a military graded chip, see here. Robert David Graham of Errata Security, which is a cyber security consulting company, begs to differ continue reading…
Dragon photographed in Shenzhen, copyright Danny Friedmann
IP Dragon is very excited to announce that it is moving toward a more professional format. To be better informed about your professional needs, we would like you to answer the following 9 short questions.
I have written a few times jestingly that companies should be happy when their intellectual property rights are infringed by Chinese companies. Because, if they don’t one cannot easily sue them any longer but one has to compete with them which might be even more difficult. Australian radio and metal-detector manufacturer Codan, is not waiting until the counterfeiters of their product become legit competitors. Codan started to compete with them on price. continue reading…
Jiangsu was China’s province with the highest GNP per capita in 2011: 61,649 Yuan. This means that a greater group of people might have become interested in luxury goods, such as cosmetics and jewelry. One of the top ten IPR cases in Jiangsu in 2011 according to Zhu Yu, secretary of the Jiangsu People’s Government Provincial Intellectual Property Office was the seizure of 43 outbound EMS parcels by the Nanjing Customs… continue reading…
Although there are not many China’s State-owned Enterprises, they have assembled huge assets, see here. This means that people in charge of these enterprises have vested interests. And a country that is full of vested interests, and that considers critical thought as a potential danger to social stability and harmony is not a climate conducive to innovation. Because innovation gives birth to disruptive technologies (Schumpeter’s gale: creative destruction). Without innovation, there is only the intellectual property of foreign rights holders to protect and enforce. Besides, innovation is needed for sustainable economic growth which can harness social stability and harmony. From a historical point of view (the greatest inventions came from China) and a statistical point of view applying a Bell curve to a population of 1.3 billion people China must have the most and least innovative people in the world. If there are not enough inventions to be harvested, the ground needs fertilizer: a culture for experimenting and critical thought can do the trick.
Owen Schumacher is a gifted Dutch comedian and impersonator. He has made a documentary series about what people’s perceptions are of real and fake. The third episode of the documentary is on brands, genuine and fake. Mr Schumacher, like yours truly, studied intellectual property law at the Institute for Information Law (IViR) in Amsterdam, the [...]
“Sunlight is said to be the best of disinfectants”, as judge Louis D. Brandeis (Supreme Court of the U.S. from 1916-1939) is quoted. But what if some of the government officials in society wear sunglasses?
Last year around this time I went to Dong Men in Shenzhen, which is part of Guangdong Province. And without any problem I could make photos of how an external disk drive became an Apple disk drive, never mind that Apple does not produce any external disk drives, see here. A year later the same phenomenon can be observed in the open. continue reading…
““In my experience, a number of foreign companies – for example US-based or Taiwan-based firms – that are manufacturing in China have particular concerns about loss of IP such as industrial designs from their business units based in China, due to employees leaking information,” he clarified in a follow-up email to The Reg.“
In Hong Kong uploading and downloading copyrighted material without permission by the right owner is illegal
Hong Kong’s Motion Picture Industry Association (MPIA) estimated to have lost 308 million U.S. dollar, because of copyright piracy on YouTube. Read Karen Chu’s Hollywood Reporter article here. MPIA is referring that the Hamburger Landgericht’s decision in GEMA versus YouTube should be applied again to illegally uploaded Hong Kong movies. Read more about GEMA v. YouTube in Brigit Clark’s IP Kat analysis here. MPIA’s case shines a light on the ownership issue.
Picture a pristine village at a crystal clear lake in the Austrian Alps. Now get rid of the snowy mountains and replace them with yellow hills. Then strip the lake and substitute it with a muddy pool. Add some polluted air of Chinese industry for good measure. Exactly this was done by China Metal Mine Group who copied the whole Austrian village of Hallstatt and built it in Boluo (博罗), Guangdong province, to sell the houses to wealthy Chinese families. The city of Hallstatt perceived it at first as an Alptraum (=nightmare in German) and considered to pursue legal actions to protect their UNESCO world cultural heritage site against this copycat. Then they changed their mind and use the appropriation by the Chinese project developers as an opportunity… continue reading…
