The National Copyright Administration of the People’s Republic of China decrees
No. 6
The “Copyright Administrative Punishment Implementation Rules”, were passed in the 1st department meeting of the National Copyright Administration on 21 April 2009, and will take effect on 15 June 2009.
Translatation: Rogier Creemers
National Copyright Administration Director: Liu Binjie
7 May 2009
Article 1: In order to standardise the administrative punishment actions of the administrative management entities for copyright, protect the lawful rights of citizens, legal persons and other groups, according to the “Administrative Punishment Law of the People’s Republic of China” (hereinafter abbreviated as “Administrative Punishment Law”, the “Copyright Law of the People’s Republic of China” (hereinafter abbreviated as “Copyright Law” and other relevant laws, administrative regulations, these rules are established.
Article 2: The National Copyright Agency as well as the relevant entities within local governments enjoying copyright enforcement rights (hereinafter abbreviated as copyright administrative management entities), in the statutory scope of their official powers, implement punishment actions against unlawful acts as listed in these rules. If other laws or regulations provide otherwise, those provisions shall be followed.
Article 3: Unlawful acts as named in these rules refers to:
(1) Infringing acts as listed in Article 47 of the Copyright Law, which at the same time damage public interest;
(2) Infringing acts as listed un Article 24 of the “Regulations on Computer Software Protection”, which at the same time damage public interest;
(3) Infringing acts as listed under Article 18 of the “Regulations on the Protection of Information Network Dissemination Rights” if they damage the public interest at the same time; infringing acts as listed under Articles 19 and 25;
(4) Acts requiring administrative punishment under the provisions of Articles 41 and 44 of the “Regulations on Collective Management of Copyright;
(5) Unlawful copyright acts, which should receive administrative punishment under the provisions of other laws, regulations and rules.
Article 4: Concerning unlawful acts as listed in these rules, the copyright management administrative entities may, in accordance with the law, order cessation of the infringing activity, and mete out the following administrative punishments:
(1) warnings;
(2) fines;
(3) confiscation of illicit profits;
(4) confiscation of infringing products;
(5) confiscation of equipment for installing and stockpiling infringing products;
(6) confiscating of materials, tools and equipment mainly used in producing infringing products;
(7) other administrative punishments under the provisions of laws, administrative rules and regulations.
Article 5: The unlawful acts as listed in these rules will be investigated and prosecuted by the copyright administrative management entities of the locality of the infringing act, the locality of the manifestation of the result of infringement, the locality of the storage of infringing products or the locality of lawful sealing or detaining. Except if other laws or regulations provide otherwise.
Investigation and prosecution of unlawful acts of infringements of dissemination rights over information networks will be the responsibility of the copyright administrative management entity of the location of the infringer, the location of the network service machines and other equipment effecting the infringing activity or the location of registry of the website.
Article 6: The National Copyright Agency may investigate and prosecute unlawful acts of significant influence in the entire country, as well as other unlawful acts it considers it should investigate and prosecute. Local copyright administrative management entities are responsible for investigation and prosecution of unlawful acts occurring in the area under their jurisdiction.
Article 7: When two or more local copyright administrative management entities have jurisdiction over the same unlawful act, the copyright administrative management unit who was first in filing the case is responsible for investigation and prosecution of the unlawful act.
If disputes between local copyright administrative management entities occur because of jurisdiction, or if jurisdiction is not specified, a compromise solution will be worked out by both parties in the dispute; if a compromise solution cannot be reached, their common copyright administrative management entity of one level higher will be petitioned to assign jurisdiction, their common copyright administrative management entity of one level higher may also directly assign jurisdiction.
Higher level copyright administrative management entities may, if this is necessary, deal with cases of significant influence in the jurisdiction of lower level copyright administrative management entities, they may also hand over cases in their jurisdiction to lower level copyright administrative management entities to deal with; if lower level copyright administrative management entities believe that the case details of cases in their jurisdiction are significant or complex, and need to be dealt with by higher level copyright administrative management entities, they may petition the copyright administrative entity of one level higher to deal with the case.
Article 8: Unlawful acts found out, investigated and prosecuted by copyright administrative management entities, if suspected to constitute a crime under the provisions of the criminal laws of our country, should be transferred by that copyright administrative management entity to the judiciary in accordance with the “Regulations on Administrative Enforcement Bodies’ Transfer of Suspected Criminal Cases”.
Article 9: The period of effectiveness of administrative punishments issued by copyright administrative management entities is two years, calculation starting from the date of occurrence of the unlawful act. If the unlawful act is of successive or continuous nature, calculation will start from the ending of the unlawful act. If infringing products are still being distributed, or dissemination on a website still continues, it shall be considered as still continuing unlawful acts.
If unlawful acts are not found out within two years, they will no more be punished administratively. Except when other laws provide otherwise.
Article 10: Apart from circumstances in which the Administrative Punishment Law provides the use of the simplified procedure, administrative copyright punishment shall use the normal procedure provided in the Administrative Punishment Law.
Article 11: The copyright administrative management entity using the normal procedure to investigate and prosecute unlawful acts, should register the case.
Towards unlawful acts as outlined in these rules, copyright administrative management entities may by themselves decide to file a case for investigation and prosecution, or can decide to file a case for investigation and prosecution based on materials transferred from relevant entities, they may also decide to file a case for investigation and prosecution based on the written request or report of persons of which the rights were infringed, persons concerned, or other insiders.
Article 12: The requesting person applying for the filing of a case for investigation and prosecution on the basis of unlawful acts as listed in these rules, should submit a letter of application, proof or rights, infringed goods (or products) as well as other evidence.
The letter of application should illustrate the name and surname (or organization name) and address of the party as well as the main facts and reasons for application for filing a case for investigation and prosecution.
If the requesting person entrusts a procurator to apply, the procurator should show a trust deed.
Article 13: The copyright administrative management entities should within 15 days of receiving all written request materials decide whether or not to accept and hear a case and inform the requesting person. If acceptance and hearing would not be granted, reasons should be informed in written form.
Article 14: At the time of filing of a case, a case file examination and approval form should be filled out, at the same time the relevant materials, including written request or report materials; the relevant materials of a case transferred by a higher level copyright administrative management entity or a relevant entity, the inspection reports of law enforcement officers etc. should be enclosed, and examined and approved by the responsible person of this entity, two or more case-handling staff are to be appointed to carry out investigation and processing.
If case-handling staff is concerned with the cases, they should withdraw themselves, if they do not withdraw, the parties may request their withdrawal. Withdrawal of case-handling staff must be examined and approved by the responsible person of this entity. The withdrawal of a responsible person should be examined and approved by the People’s Government of this level.
Article 15: When law enforcement officers in the process of enforcement find out that unlawful acts are in the process of being committed, and if the circumstances are so critical that there is not time to file a case, they may take the following measures:
(1) Cease or correct the unlawful acts
(2) Put infringing products and materials, tools, equipment etc. used mainly for unlawful acts in advance registered storage
(3) Gather and collect other relevant evidence.
Law enforcement officers should promptly report relevant circumstances and materials to the copyright administrative management entity in charge, and conduct case filing formalities within seven days of discovery of the circumstances.
Art. 16: After the filing of the case, the case-handling staff should promptly carry out investigations, and demand the person with statutory burden of proof to put his proof within the time limit appointed by the copyright administrative management entities.
The case-handling staff, when collecting evidence, may adopt the following means to collect and gather relevant evidence:
(1) Consulting, duplication of document records, account books and other written materials relevant to the suspected unlawful acts;
(2) Collect samples of evidence of suspected infringing products;
(3) Put suspected infringing products, equipment for installing and stockpiling infringing products; suspected infringing websites and web pages, suspected infringing website service machines and materials, tools and equipment mainly used in unlawful acts in advance registered storage.
Art. 17: The case-handling staff should, during enforcement, show to the party or relevant persons their administrative enforcement credentials issued by the National Copyright Administration or local People’s Government.
Art. 18: Evidence collected during the handling of the case include:
(1) documented evidence;
(2) material evidence;
(3) witness testimonies;
(4) audiovisual material;
(5) statements of the parties;
(6) authenticated conclusions
(7) records of spot inspections and checks
Article 19: Copyright-related manuscripts, master copies, lawful publications, work registry certificates, copyright contract registry certificates, proof provided by authentication organs, contracts of acquisition of rights, as well as infringing reproductions obtained by way of ordering, buying on the spot etc., by the parties or their entrusted persons and acquired objects, invoices etc, may act as evidence.
Art. 20: When the case-handling staff sample and collect evidence, and put relevant evidence in advance registered storage, they should have the party present. Concerning relevant goods, they should issue on the spot a double duplicate of a manufacturing statement, which should, after it is signed or stamped by the case-handling staff and the party, given respectively by the party and the case-handling staff to the local copyright administrative management entity for preservation. If the party is not present or refuses to sign or stamp, this circumstances shall be noted by two or more case-handling staff.
Article 21: When putting relevant evidence in advance registered storage, case-handling staff should obtain permission from the responsible person of this entity, and should hand over to the party an evidence advanced storage notice. The party or relevant person may not transfer or destroy relevant evidence during the period of evidence storage.
Evidence in advance registered storage, should be sealed with advanced registered storage strips of the copyright administrative management entity, and preserved on the spot by the party. If evidence in advance registered storage really needs to be moved to another location, it may be moved to a suitable location for storage. If the circumstances are so critical that there is no time to perform the formalities provided in these rules, the case-handling staff may adopt advance measures, and afterwards promptly complete formalities.
Art. 22 (Steps after advanced registered storage) Concerning evidence in advanced registered storage, one of the listed decisions should be made within 7 days of handing over the evidence advanced registered storage notice:
(1) If authentication is needed, it should be delivered for authentication;
(2) If unlawful facts are established, and if confiscation should happen, the confiscation procedure should occur according to law;
(3) If transfer to a relevant entity is necessary, the case together with the evidence will be transferred to the relevant entity;
(4) If unlawful facts are not established, or if confiscation should not happen according to the law, measures should be taken to release registered storage;
(5) Other related statutory measures.
Art. 23 (Entrusted investigation) When, during the process of case investigation, the copyright administrative management entities entrust other copyright administrative management entities to perform investigations on their behalf, they should issue a trust deed. The copyright administrative management entity that is entrusted should give vigorous assistance.
Art. 24 (Expert appraisal) For questions of a technical nature arising during the investigation and prosecution, the copyright administrative management entity may entrust special agencies or engage expert personnel to carry out appraisal.
Art. 25 (Investigation report) After the final stage of the investigation, the case-handling staff should submit a case investigation report, explaining whether the relevant activities violate the law or not, and putting forward suggestions for process, and relevant facts, grounds and basis, as well as including the complete evidence materials.
Art. 26 (Notification of the parties) When the copyright administrative management entity has drafted an administrative punishment decision, the person in charge of that entity should sign an issue an administrative punishment advance notice, informing the parties on the facts, grounds and basis of the drafted administrative punishment decision, as well as informing the parties on their rights of declaration, right of defence and other rights.
The administrative punishment advance notice should be delivered directly to the parties by the copyright administrative management entity, the parties should sign or stamp the delivery form. If parties refuse to sign for receipt, the situation should be noted clearly by the delivery personnel, the documents to be delivered should be left at the domicile receiving the delivery personnel, and the person in charge of the relevant entity should be informed. The copyright administrative management entity may also adopt postal delivery methods to inform the parties. If there is no way to find the parties, they may notify by public proclamation.
Article 27: If the parties wish to make a statement or a pleading, they should raise their statement or pleading, as well as the relevant facts, reasons and evidence before the copyright administrative management entity within seven days after notification of the defendant, or within 30 days of the day of issuance of the announcement. If the parties did not exercise their right statement or pleading within this period, they will be regarded as having renounced the right.
If the direct delivery method is used for notification, the day of receipt and signing of the party is used as the day of notification of the defendant, if the postal delivery method is used for notification, the day of receipt as indicated on the receipt slip is used as the day of notification of the defendant.
Article 28: The case-handling staff should fully listen to the statements and pleadings of the parties, carry out a review of the facts, reasons and evidence raised by the parties, and submit a review report.
The copyright administrative management entity may not increase punishment because of pleading by the parties.
Article 29: The responsible person of the copyright administrative management entity should carry out an examination of the case investigation report and the review report and respectively make the following processing decisions on the basis of the investigation results:
(1) if an unlawful act that should be punished administratively truly exists, administrative punishment should be meted out according to the level of the fault of the infringer, the duration of the infringement, the size of the scope of infringement, the consequence of the damage and other circumstances;
(2) if the unlawful act is trivial, administrative punishment may not be meted out;
(3) if unlawful facts are not established, no administrative punishment will be meted out;
(4) if the unlawful acts are suspected to constitute a crime, it will be transferred to the judiciary.
Relatively heavy administrative punishment will be meted out against unlawful acts of which the circumstances are complicated or which are significant, this will be decided by collective discussion of the responsible persons of the copyright administrative management entity.
Article 30: When the copyright administrative management entity decides to impose a fine, the amount of the fine will be fixed according to the provisions of Article 36 of the “Implementing Regulations of the Copyright Law of the People’s Republic of China”, Article 24 of the “Regulations for the Protection of Computer Software” and Articles 18 and 19 of the “Regulations on the Protection of Information Network Dissemination Rights”.
Article 31: If the circumstances of the unlawful act are grave, the copyright administrative management entity may confiscate the materials, tools and equipment etc., used mainly in producing the infringing products.
“Grave circumstances” as named in the aforementioned clause, refers to:
(1) if the illicit income amount (viz. amount of profit) is more than 2.500 yuan;
(2) if the illicit business amount of is more than 15.000 yuan;
(3) if the number of infringing products of an individual is greater than 250 volumes (discs or boxes);
(4) if one has already been found liable for copyright infringement, and again infringes copyright;
(5) if other significant influence or grave consequences result.
Article 32: If another administrative department has already fined the same one unlawful act of the party, the copyright administrative management entity may not fine it again, but may still mete out other sorts of punishment according to the provisions of Article 4 of these Rules, according to the specific circumstances.
Article 33: Before the copyright administrative management entity decides to impose relatively large fines or other administrative punishments requiring a hearing according to the provisions of laws or administrative regulations, it should notify the parties of the rights for requiring for a hearing.
“Relatively large fines” as named in the aforementioned clause, reference to a fine for an individual of more than 20.000 yuan, and a fine for a work unit of more than 100.000 yuan. If local rules and regulations have different criteria for a hearing, it will be conducted according to local rules and regulations.
Article 34: If the parties wish a hearing, the copyright administrative management entity should organize a hearing according to the procedures of the provisions of Article 42 of the Administrative Punishment Law. The parties do not bear the cost of organizing a hearing.
Article 35: If the copyright administrative management entity decides to mete out punishment, it should formulate an administrative punishment resolution.
If the copyright administrative management entity decides not to mete out punishment for a trivial unlawful act, it should formulate an administrative non-punishment resolution, explain the facts, reasons and basis for not meting out punishment, and serve it on the parties; if an unlawful act is not established, it should formulate an investigation result notice, and serve it on the parties.
If the copyright administrative management entity decides to transfer a case to the judiciary for processing, it should formulate a notice of transfer for a suspected criminal case, and send it timely to the judicial department having jurisdiction, together with the relevant material and evidence.
Article 36: The administrative punishment resolution should be handed over to the parties on the spot after proclamation by the copyright administrative management entity. If parties are not present, it should be sent to the parties within seven days.
Article 37: If parties refuse to accept the administrative punishment of the National Copyright Administration, an application for administrative redress may be made to the National Copyright Administration; if the parties refuse to accept the administrative punishment of a local copyright administrative management entity, an application for administrative redress may be made to the People’s Government of that level of the copyright administrative management entity of one level higher.
If the parties refuse to accept the administrative punishment or the administrative redress decision, administrative action may be raised, according to the law.
Article 38: After the parties receive the administrative punishment resolutions, they should fulfil their obligations within the time limits of the administrative punishment resolution.
If the party’s request administrative redress, or an administrative action is raised, the administrative punishment must be fulfilled without delay. Except if laws provide otherwise.
Article 39: Confiscated infringing products should be destroyed, or should be disposed of in other suitable manners after approval of the infringed party.
When destroying infringing products, the copyright administrative management entity should appoint more than two law enforcement officers to supervise the destruction process, examine the destruction results and record the destruction.
Concerning the confiscated materials, tools and equipment etc. mainly used in producing infringing products, the copyright administrative management entity should organize a public auction according to the law or dispose of them according to the relevant national provisions.
Article 41: infringing products as named in these rules include infringing reproductions and works posing as signed by other persons.
Article 42: The copyright administrative management entities should set up a copyright administrative punishment statistics system according to the national regulations on statistics, and should submit yearly copyright administrative punishment statistics to the copyright administrative management entity of one level higher
Article 43: After the administrative punishment decision or reconsideration resolution is completely carried out, the copyright administrative management entity should file the case materials timely.
Materials to be put on file include: the administrative punishment resolution, the case file examination and approval form, the case investigation report, the review report, the reconsideration resolution, the records of hearings, the hearing reports, evidence material, property disposition documents as well as other relevant materials.
Article 44: The relevant legal documents touched upon in these Rules, should be made according to the relevant document forms of the National Copyright Administration.
Article 45: These Rules will take effect from 15 June 2009. The “Copyright Administrative Punishment Implementation Rules “, promulgated by the National Copyright Administration will be abolished at the same time, if these Rules should contradict with other relevant regulations promulgated before the implementation of these Rules, these Rules should be carried out.
Mainichi Daily News reports that Japan and the People’s Republic of China have set up a working group to address intellectual property challenges. This Sunday the working group (which consists of the Japanese Ministry of Economy, Trade and Ministry and Chinese Ministry of Commerce and other institutions) will probably meet for the first time.
Already in 2007 there was some confusion among consumers, see the question at Ask Koubei here:
Finally in 2009, the case was brought before the
Nantong (Jiangsu province) Intermediate People’s Court (first-instance judgement). From 1981 to 2001, L’Oréal registered the trademarks L’Oréal, 莱雅 and 欧莱雅, certified to be used on Class 3 goods, i.e. cosmetics, beauty products and perfumes.
IP Dragon checked the IP law firms specialised in IPR in China. Here are some of the firms with new articles:
Baker & McKenzie
– ‘People’s Republic of China Patent Law Implementing Regulations Draft’ (pdf)http://www.bakernet.com/BakerNet/Resources/Publications/Recent+Publications/ChinaPRCPatentLawImplementingRegulationsDraftCAApr09.htm
Bird & Bird
– Chen, Sofia and Ewan Grist, ‘Anti-counterfeiting framework’, May 11, 2009 http://www.twobirds.com/English/News/Articles/Pages/Anti-counterfeiting_Legal_Framework.Aspx
CCPIT Patent and Trademark Law Office
– ‘The Second “Beijing International Pharmaceutical & ChemicalIntellectual Property Forum”will be held from August 6 to August 8, 2009 in Beijing’ http://www.ccpit-patent.com.cn/News/2009042201.htm
– Hu Gang, ‘Position Trademarks Refused by the Chinese Court forRegistration as Three-dimensional Trademarks for the First Time’http://www.ccpit-patent.com.cn/News/2009030301a.htm
China Patent Agent (HK) Ltd.
– Liao Xiaojun, ‘Several Issues in Hearing Design Patent Cases the IPTribunal of Beijing Higher People’s Court’ http://www.cpahkltd.com/cn/Publications/2009liulan/200902/ebjc.pdf
– Wu Yuhe and Pang Lizhi, ‘Impact of Drug Dosage Feature on Novalty ofSwiss-type Use Claim’ http://www.cpahkltd.com/cn/Publications/2009liulan/200902/ewyh.pdf
China Science Patent & Trademark
– Zhu Nongfan, ‘Review: 2008 China Intellectual Property Developments’ http://www.csptal.com/en/en_z.asp?id=119
Deacons
– China IP Bulletin- May 2009 http://www.deaconslaw.com/eng/knowledge/knowledge_330.htm
Dragon IP Law
– Newsletter March 18, 2009 http://www.dragon-patent.com.cn/en/news_content.asp?id=218&anclassid=1
DS-Avocats
– Lettre en Droit Chinois des Affaires (French), February 19, 2009 http://www.ds-asie.com/dszh/IMG/pdf/Droit_chinois_des_affaires_no107.pdf
East IP
– ‘Our Chairman, Dr. Lulin Gao, Invited to Attend 2009 Global IPExchange in U.S.A.’ http://www.eastip.com/news/ip/news_publications/09-2-22gie/index_html_v2
Foley & Lardner LLP
– Bartner, Sharon R., Catherine Sun and Yan Zhao, ‘China’s HighestCourt Opinion Addresses Impact Of The International Financial CrisisOn Intellectual Property’, April 24, 2009 http://www.foley.com/publications/pub_detail.aspx?pubid=5977
Freshfield Bruckhaus Deringer
– Carnabuci, Connie and Richard Bird, ‘Major changes in the thirdrevision to the PRC Patent Law’, February 13, 2009 http://www.freshfields.com/publications/pdfs/2009/feb09/25150.pdf
– Carnabuci, Connie and Richard Bird, ‘Trade Descriptions (Amendment)Ordinance 2008, Hong Kong’, February 10, 2009 http://www.freshfields.com/publications/pdfs/2009/feb09/25054.pdf
Haseltine Lake
– ‘Haseltine Lake at INTA 131st Annual Meeting’, May 16-20, 2009 http://www.haseltinelake.com/news/shownews/inta09
JSM (Johnson Stokes & Master) Mayer Brown
– Wong, Kenny, ‘A New Opinion of the PRC Supreme People’s CourtConcerning the Adjudication of IP Disputes’ http://www.mayerbrown.com/publications/article.asp?id=6683&nid=6
Jones Day
– Bai, J. Benjamin, Tony Chen, Mark Allen Cohen, Chiang Ling Li, AnnW. Chen, ‘What Does the Third Amendment to China’s Patent Law Mean toYou?’, January 2009
Jun He Law Offices
– ‘The Supreme Court Issues Opinions on Due Implementation of NationalIntellectual Property Strategy’, April 30, 2009, http://www.junhe.com/uploadpic/news/2009511214635977.pdf
Kangxin
– ‘SARFT offers 9 mln yuan to support original cartoon’, February 11, 2009. http://124.207.176.104:8080/mainServlet.do?ClassName=NewsManage1&ActionName=doBeforeUpdate&jsp=/english/ipnews/viewnews.jsp&newsID=590&titleimage=title-2-4-1.gif&lanuage_type=2&Pro_type_id=90
– ‘China to build 100 IP assistance centers’, February 10, 2009. http://124.207.176.104:8080/mainServlet.do?ClassName=NewsManage1&ActionName=doBeforeUpdate&jsp=/english/ipnews/viewnews.jsp&newsID=589&titleimage=title-2-4-1.gif&lanuage_type=2&Pro_type_id=90
King & Wood
– IP Bulletin, February 2009, Shi Yusheng, ‘Microsoft’s Windows Genuine Advantage Initiative andthe Protection of Intellectual Property Rights in China’
– Zheng Lizhu and Kenneth Y. Choy, ‘The Impact of Bilski on BusinessMethod Patent’- Nelson, Stephen, and Wu Libin, ‘Tax Issues Related to Intellectual Property Transfer of the Foreign Enterprise to China Transferee’ http://www.kingandwood.com/Bulletin.aspx?id=11445
Lehman, Lee & Xu
– Lee, John and Cythia Zhang, ‘Trademark Practice & Forms’ http://www.lehmanlaw.com/fileadmin/lehmanlaw_com/Publications/Trademark_Practice_and_Forms-China_Chapter.pdf
Liu, Shen & Associates
– ‘New Comments on IP Trials issued by Supreme People’s Court’ May 7, 2009 http://www.liu-shen.com/english/news_detail_en.asp?newsid=511
– ‘New Interpretations of Application of Law in Civil Litigationconcerning Well-Known Trademark by Supreme People’s Court’, May 7,2009 http://www.liu-shen.com/english/news_detail_en.asp?newsid=510
– ‘Development on Well-Known Trademark Recognition and Protection’, May 7, 2009 http://www.liu-shen.com/english/news_detail_en.asp?newsid=512
– ChinaCourt.org,’The Judicial Reform of People’s Court Considers Introducing Unified IPR Courts’, April 15, 2009 http://www.liu-shen.com/english/news_detail_en.asp?newsid=500– ‘Liu, Shen & Associates Receives “China IP Firm 0f 2009” Award’, April 15, 2009 http://www.liu-shen.com/english/news_detail_en.asp?newsid=504
– Shenzhen Special Zone Daily, ‘Shenzhen Covers 44.5% of the Total PCTPatent Application’, March 24, 2009 http://www.liu-shen.com/english/news_detail_en.asp?newsid=492
Lung Tin International Intellectual Property Agent Ltd.
– ‘The third revision of Chinese Patent Law regarding the design: anintroduction (fourth)’, April 24, 2005 http://www.lungtin.com/en/view.php?id=124053784249
– ‘Shanghai MGE sentenced to pay CNY 0.5 million in compensation’, April 24, 2009 http://www.lungtin.com/en/view.php?id=124053765916
– ‘For suspected promotion of feudal superstition, registration of anew trademark of Blizzard Entertainment based in USA has beenrejected’, April 24, 2009 http://www.lungtin.com/en/view.php?id=124053751559
– ‘The third revision of Chinese Patent Law regarding the design: anintroduction (3)’, Mar. 27, 2009 http://www.lungtin.com/en/view.php?id=123813353819
– ‘Administrative institutions strengthen the capacity ofinvestigating and dealing with trademark violation cases’, March 27, 2009 http://www.lungtin.com/en/view.php?id=123813335997
– ‘New rules for trademark applications in newspapers industry’, March 27, 2009 http://www.lungtin.com/en/view.php?id=123813311909
Maier & Maier
– 18 articles about IPR in China http://www.postgrant.com/china-ip/
McDermott Will & Emery
– Ma, Patrick, ‘Chinese Trademark Office Releases Trial Provisions for Online Trademark Applications’, April 9, 2009 http://www.mwechinalaw.com/news/2009/chinalawalert0409a.htm
NTD Trademark & Patent Agency Ltd.
– ‘Shanghai Expo Lawsuit Service Center Established’, May 14, 2009 http://www.chinantd.com/en/en-newsshow.asp?id=1016
– ‘Chongqing Subsidize Invention Patents Granted Abroad’, May 13, 2009 http://www.chinantd.com/en/en-newsshow.asp?id=1015
O’Melveny & Myers LLP
– ‘Trial measures for Online Trademark Applications’, China Law & Policy, February 16, 2009 http://www.omm.com/files/Publication/a70f2a48-2380-4c36-b3d7-2e4eca6e15f2/Presentation/PublicationAttachment/ab35488e-bb34-4fda-8049-301225b7eda8/clp2009E05.pdf
Orrick, Herrington & Sutcliffe LLP
– Xiang Wang, Neal Stender, Tao Wu and Gary Zeng, ‘China’s New Testfor Patent Injunctions; Echoes of eBay’, May 5, 2009,
http://www.orrick.com/publications/item.asp?action=article&articleID=1832
– Xiang Wang and Neal Stender, ‘More changes & some more of the samein amended PRC Patent Law’, April 1, 2009 http://www.orrick.com/fileupload/1823.pdf
– Dale, Andrew and Janie Wong, ‘The Civil Justice Reforms, An In-House Perspective’, March 9, 2009 http://www.orrick.com/fileupload/1691.pdf
Rouse & Co.
– ‘China IP Express, 316’, April 24, 2009 http://www.iprights.com/document.aspx?fn=load&media_id=611
Shanghai Patent & Trademark Law Office, Inc.
– ‘World Expo 2010 Shanghai IP Protection Outlines Unveiled’ http://www.sptl.com.cn/en/news/news08.htm
Tee & Howe
– Haynes, James, ‘Chinese Utility Model Patents Might Cut Your IP Costsby Half While Providing Better Protection’ http://www.teehowe.com/news_detail.php?id=323
Troutman Sanders
– ‘Judicial Interpretation of Several Issues on Application ofEnforcement Procedures in PRC Civil Procedural Law’, January 22, 2009 http://www.troutmansanders.com/cnlb-012009-07/
Tsai, Lee & Chen
– ‘Opinions Shared across the Straits: Using Other’s Trademark as aCompany’s Chinese/English Name Not Allowed’, May 12, 2008 http://www.tsailee.com/_en/_ipn/default01.asp?PKID=1303
– ‘Third Read of Amendment to Copyright Act Pass Three-strikesProvision’, May 1, 2009 http://www.tsailee.com/_en/_ipn/default01.asp?PKID=1302
– ‘Indication of Distinctive Name on Company’s Website Not TrademarkUse’, May 1, 2009 http://www.tsailee.com/_en/_ipn/default01.asp?PKID=1301
– ‘FOXY Sued for Involvement in Copyright Infringement over 5.8Billion’, May 1, 2009 http://www.tsailee.com/_en/_ipn/default01.asp?PKID=1300
– ‘The Cross-strait Regulations Recognize the Validity of Judgments’,April 14, 2009 http://www.tsailee.com/_en/_ipn/default01.asp?PKID=1284
Unitalen
– ‘China’s Ministry of Commerce Highlighted IPR for ChineseEnterprises on CeBIT’ http://www.unitalen.com/servlet/Node?node=38389&language=0
Wilkinson & Grist Solicitors & Notaries
– articles about IPR in China publised in IAM Magazinehttp://www.wilgrist.com/index.php?main=10002&dept=05&lang=en
May 16-17, 2009, the International Herald Tribune had the following quote from the sci-fi author and screenwriter Harlan Ellison:
Professor Susan Scafidi, the authoriy on Fashion Law (Fashion and Intellectual Property Law), author of ‘Who Owns Culture?‘ and Counterfeit Chic sent me a great link: ‘China Bootlegs Star Trek for Its Space Program‘ on Cool Aggregator, a site about pop-culture and strange news maintained by Valerie D’Orazio.
Guest article by Mikołaj Rogowski
The Knowledge@W.P. Carey newsletter of the W.P. Carey School of Business, Arizona State University, has a great series of articles: ‘Trade, China and the World Economic Order’. Part 3 is called: Business Leaders’ Advice on Succeeding in China.’ Herein, sensible things are said about intellectual property rights in China:
The People’s Republic of China was ranked last (24th position) in the Taylor Wessing Global Intellectual Property Index 2009, see here. The methodology of the GIPI rating is a calculation by a factor assessment model with jurisdiction assessments and instrumental factors as input. See the methodology here.
Selene Ng of Wilkinson and Grist wrote an article on the site of IAM Magazine about an encouraging outcome of a survey on public awareness of intellectual property protection by the Hong Kong population. The Survey on Public Awareness of Intellectual Property Right Protection 香港市民保護知識產權意識調查 2008 conducted by Mercador Solutions Associates Ltd., commissioned by the IP Department of Hong Kong. It showed that 96.3 percent of the surveyed group (1,003 repondents, response rate of 51.5 percent) considered that it was very/quite necessary to protect the IP rights in Hong Kong.
Mira Veda of the Huffington Post writes “The Wall Street Journal reports that 90% of China’s Web Users, which is estimated to be about 162 million people, access pirated music from their computers every day … ” Read here.
Business Software Allicance (BSA) publishes its 2008 study of software piracy: May 2009, Sixth Annual BSA-IDG Software 08 Piracy Study.
With 39 percent, Taiwan came in on the 23th position of the countries with the lowest software piracy, causing a 201 million US dollar loss in 2008 (215 million US dollar loss in 2007):
2008 48 percent
Rand Han of Little Red Book has another great article. This time he has used, analysed and deconstructed the social networking site Xiao Nei (at Campus) which is a blatant copycat of Facebook.
In the rebound the French Assemblée national adopted the Hadopi law today, which includes a “three strikes” sanction for file sharers of pirated works: repeat offenders will have their internet connection cut off after the third offense, see the France24.fr video about it here (in French) or here (in English). Besides France, Taiwan’s Executive Yuan has proposed an amendment to its Copyright Law (ISP liability limitation bill) which includes this three strikes sanction. The bill completed the third reading by the Legislative Yuan and will be promulgated by the Presidential Office in the near future. ISPs will be exempt from both civil liability in case of alleged copyright infringement to the copyright owner and contractual liability to the alleged user. The price for this exemption is that ISPs should abide the notice-and-take down procedures for alleged infringing content and apply the three strikes system.
Hon Hai Precision Industry Co. sued Build Your Dreams (BYD) at a People’s Court in Shenzhen for intellectual property infringement in technology needed for electrical cars. Hon Hai is Taiwan’s leading outsourced manufacturing company for Apple’s iPhone, HP, Sony and Nokia etc. BYD started with the production of batteries in 1995 and combined this with the development of cars (electrical) six years ago. BYD already has its own museum.
American Chamber of Commerce in the People’s Republic of China (AmCham-China) issued the ‘American Business in China White Paper 2009‘ last month. Pages 45-48 pdf, with pagenumbers 88-94 are about intellectual property rights protection. Read here.
Knockoff mobile phones such as Apple (hi-phone), Nokia (Nckia), Samsung (Sumsang), that sometimes explode or have high radiation, are immensely popular in China, 20 percent of this biggest market in the world! The phones are also exported to Russia, India, Middle East, Europe and US. David Barboza wrote an article about it: ‘In China, Knockoff Cellphones Are a Hit’ for the NYT, read here.
Mr Barboza explains why it is easy to produce a knockoff mobile phone in China for about 20 US dollar:
New Chinese brands emerge, such as Meizu, that aspire to emulate Apple. More information about Shan Zhai Ji, read here.
Can we learn from history? Or are we doomed to make the same mistakes over and over? Professor Adam Mossoff of George Mason University School of Law wrote an excellent paper about the Sewing Machine War of the 1850’s which illustrates that the challenges we are facing in this day and age with patent thickets, patent trolls and patent pools are not new. Professor Mossoff draws the conclusion that “[t]he denouement of the sewing machine patent thicket in the Sewing Machine Combination of 1856, the first privately formed patent pool, further challenges the widely held belief that patent thickets are best solved through new statutes, regulations or court decisions that limit property rights in patents.“
The paper illustrates in great style the titanic battle between Elias Howe (who did not do anything other with the patent then using it for injunctions to compel licenses from manufacturers) and Isaac Merritt Singer (who was an incremental inventor). In this battle Singer was looking for prior art to invalidate Howe’s patent:
The International Intellectual Property Alliance (IIPA) has made a statement on USTR’s decisions in its 2009 Special 301 Review affecting copyright protection and enforcement around the world. No real surprises, including that the IIPA commends USTR for the decision to elevate Canada to the Priority Watch List.
This is what IIPA stated April 30, 2009 about China:
Business Software Alliance (BSA)’s 2008 statistics are preliminary. They represent the U.S. software publishers’ share of software piracy losses in each country, and follow the methodology compiled in the Fifth Annual BSA and IDC Global Software Piracy Study (May 2008). These figures cover, in addition to business applications software, computer applications such as operating systems, consumer applications such as PC gaming, personal finance,and reference software.
IP Dragon wishes you a happy World Intellectual Property Day 2009. The World Intellectual Property Organization (WIPO) has chosen a very relevant theme for this year’s World Intellectual Property Day: promoting green innovation. WIPO takes responsibility for the polution that is connected with technology protected by intellectual property rights: technology has created polution, but technology has also the potential to come up with solutions for this problem.
I just read a great paper by Andrea Wechsler ‘Intellectual Property Law in the P.R. China: A powerful Economic Tool for Innovation and Development’, Max Planck Institute for Intellectual Property, Competition & Tax Law Research Paper No. 09-02, November 12, 2008, download at SSRN here.
Ms Wechsler shows how the Chinese government has changed its perception of intellectual property from a Fremdkörper that was transplanted in China from abroad, to uneasiness about the foreign pressure to reform its IP system in order for it to enter WTO, to China’s autonomous realisation that IP protection is crucial to foster innovation and development, as evidenced by China’s third amendment to its patent law (effective October 1, 2009). China is gradually opting for more country and industry specific intellectual property rights. Ms Wechsler writes: “it was argued that recent policy shifts in Chinese IP policy are to be considered as the first omens of the Chinese emergence as potent forces in reshaping the global intellectual property landscape according to their own political, economic, and social interests.“
Read Ms Wechsler here.
At the 2009 Shanghai Auto Show the Chinese Geely GE gives its acte de présence. Richard S. Chang wrote: “By all accounts the limo is a shameless (if not slightly shorter in length) knock-off of the Rolls-Royce Phantom.“ Read Chang’s blog for the NYT here.
For more on the reform check: http://online.wsj.com/article/SB123982492165322167.html
Text and picture Mikołaj Rogowski
Laurent Gaberell told me that he made a video documentary called Green Gold Rush about bioprospecting (the exploration of biodiversity for commercially valuable genetic and bio-chemical resources) and indigenous peoples. See the video here.
The Interview
IP Dragon: Is traditional knowledge what the developed world wanted to give (as some would say “small change”) to the developing world in exchange for their enforcement of the economically more important intellectual property rights of copyrights, trademarks and patents?
Laurent Gaberell: “The rhetoric of biopiracy has emerged as a political discourse and strategy to counter the piracy rhetoric that MNCs used to justify the enforcement of stronger and stronger intellectual property rights in the geopolitical South. To sum up, Third World countries were saying “you call us the thief for stealing your intellectual property when in reality you are the thiefs you steal our intellectual property”, as Martin Khor well puts it in the movie. This biopiracy rhetoric has proven very effective in putting the issues on the top of the political agenda. Yet it has its dangers too. And one of them is the one you refer too. If we are speaking about two problems of piracy, then why not make a deal: “small changes” in the IP system such as disclosure of origin requirements againts enforcement of strong standards in the Third World to protect the IP assets of developed countries. It is a dangerous deal because I am really not sure it would benefit developing countries and moreover these are very diferent problems. On one side you have the patenting of innovations that originated in the geopolitical South while on the other side you have the use of IP protected innovations produced by MNCs. Third World countries are not appropriaiting the innovations of MNCs through IP, they are using it. But the North not only copies the innovations of the South but also appropriates it through IP. The problem is very different. I think Third World countries would be very ill advised to make such a deal. They have the legitimacy to ask for both the protection of their resources and knowledge, and the right to copy IP protected assets of the North in the name of their needs for development.”
IP Dragon: Why wasn’t a representative of the People’s Republic of China included in the documentary?
Laurent Gaberell: “No representative of the People’s Republic of China appears in the movie for the simple reason that there were no indigenous peoples delegates or representants of minorities of China present at the IGC. And the idea of the movie was to give an opportunity to indigenous peoples’ delegates of various part of the world to share their experiences and perspectives. It was not the intention of the documentary to interview state representants or members of official delegations. So it is not a discriminitation against China, it is just that no representatives of any country was interviewed for this movie.”
IP Dragon: Why is the movie relevant for China?
Laurent Gaberell: “For the importance of traditional medicinal knowledge there. China might not be part of the most megadiverse countries of the world, but it has accumulated an impressive quantitiy of knowledge about the medicinal properties of its biological resources, and that knowledge is of very strategic and economic importance in the context of the biotech revolution. So the question that the movie asks for Bolivia is also relevant for China: how not only to protect our knowledge and innovations of being appropriated but also how to use it and develop it in a way that is really beneficial to the people and to the country.”
IP Dragon: Can you tell anything China-related in relation to this movie?
Laurent Gaberell: “I have read about the strategy that China is currently experimenting to protect its TK, namely the patenting of this knowledge, especially its traditional medicinal knowledge and formulations. The advantage of this strategy is that the patents can then be enforced through WIPO in countries like the US or in Europe, something a national sui generis system is currently not able to do. What is not clear to me however is who owns the patent. The State? Chinese companies? Individuals? Traditional comunities?”
“I hear a lot of stories
I suppose they could be true
All about intellectual property and what it can do to you
Highest risk of striking out
The risk of getting hurt
And still, I have so much to learn”
Picture:
TV History
JLM Pacific Epoch (China Business Headlines & Analysis from JL McGregor & Company) translated a report by West China City Daily quoting Chinese composer Xu Peidong that China’s National Publishing Administration plans to set up copyright fees of 2.4 Renminbi per minute for music used on television and 0,3 Renminbi per minute for Radio. Read here.
Read more about the General Administration of Publication under the Central People’s Government on the site of ChinaCulture.org, here.
Also the US Library of Congress gives some information about the history of the National Publishing Administration: “In 1982 the China National Publishing Administration, the umbrella organization of Chinese publishers, was placed under the Ministry of Culture, but actual management of the industry was directed through four systems of administration: direct state administration; administration by committees or organizations of the State Council or the party Central Committee; armed forced administration; and administration by provinces, autonomous regions, or special municipalities.“
Read more here.
This article will be a work in progress, because everytime I will come across news about a country that seized counterfeit or pirated goods originating from China I will add the link, so that a worldwide overview will emerge. If you find articles about activities against infringed goods from China in exotic places (or if such a countery has any link with infringement originating from China), feel free to send me the links. Thanks.
Afghanistan – Islamic Republic of Afghanistan:
Albania – Republic of Albania
Algeria – People’s Democratic Republic of Algeria
Andorra – Principality of Andorra
Angola – Republic of Angola
Antigua and Barbuda – Antigua and Barbuda
Argentina – Argentine Republic
Armenia – Republic of Armenia
Australia – Commonwealth of Australia
Injury risk in counterfeit goods, Cowry Community News, May 2, 2011.
Austria – Republic of Austria
Tanja Miscevic, Produktpirateriebericht: Markenfälschungen nehmen weiter zu Apotheker warnen vor falschen Medikamenten im Internethandel, APA-OTS, April 1, 2011.
Azerbaijan – Republic of Azerbaijan
The Bahamas – Commonwealth of The Bahamas
Bahrain – Kingdom of Bahrain
Bangladesh – People’s Republic of Bangladesh
Belarus – Republic of Belarus
Belgium – Kingdom of Belgium
Benin – Republic of Benin
Bhutan – Kingdom of Bhutan
Bolivia – Republic of Bolivia
Bosnia and Herzegovina – Bosnia and Herzegovina
Botswana – Republic of Botswana
Phillips, Jeremy, ‘Poison toothpaste alert in Botswana‘, Afro-IP, January 25, 2008.
Brazil – Federative Republic of Brazil
Brunei – Negara Brunei Darussalam
Bulgaria – Republic of Bulgaria
Counterfeit goods come mostly from China, Turkey, Hong Kong and Dubai, Focus News Agency, March 20, 2011.
Burkina Faso – Burkina Faso
Burma – Union of Myanmar
Burundi – Republic of Burundi
Cambodia – Kingdom of Cambodia
Cameroon – Republic of Cameroon
Canada – Canada
Cape Verde – Republic of Cape Verde
Chad – Republic of Chad
Chile – Republic of Chile
China – People’s Republic of China: it can be argued that the People’s Republic of China is the greatest victim of the infringements originating in China.
Colombia – Republic of Colombia
Comoros – Union of the Comoros
Congo – Democratic Republic of the Congo (Congo-Kinshasa)
Congo – Republic of the Congo (Congo-Brazzaville)
Costa Rica – Republic of Costa Rica
Côte d’Ivoire – Republic of Côte d’Ivoire (Ivory Coast)
Croatia – Republic of Croatia
Cuba – Republic of Cuba
Cyprus – Republic of Cyprus
Denmark – Kingdom of Denmark
Djibouti – Republic of Djibouti
Dominica – Commonwealth of Dominica
East Timor – Democratic Republic of Timor-Leste
Ecuador – Republic of Ecuador
Egypt – Arab Republic of Egypt
Dalia Ziada, China’s fake hymen: blessing and curse, October 9, 2009.
El Salvador – Republic of El Salvador
Equatorial Guinea – Republic of Equatorial Guinea
Eritrea – State of Eritrea
Estonia – Republic of Estonia
Ethiopia – Federal Democratic Republic of Ethiopia
Fiji – Republic of the Fiji Islands
Finland – Republic of Finland
France – French Republic
Gabon – Gabonese Republic
The Gambia – Republic of The Gambia
Germany – Federal Republic of Germany
Ghana – Republic of Ghana
Greece – Hellenic Republic
Guatemala – Republic of Guatemala
Guinea – Republic of Guinea
Guinea-Bissau – Republic of Guinea-Bissau
Guyana – Co-operative Republic of Guyana
Haiti – Republic of Haiti
Honduras – Republic of Honduras
Hong Kong – special administrative region of Hong Kong
Hungary – Republic of Hungary
Iceland – Republic of Iceland
India – Republic of India
Indonesia – Republic of Indonesia
Iran – Islamic Republic of Iran
Iraq – Republic of Iraq
Israel – State of Israel
Italy – Italian Republic
AFP via Plush, ‘Italian police bust Chinese-Senegalese counterfeiting ring‘, November 7, 2009.
Japan – State of Japan
Jordan – Hashemite Kingdom of Jordan
Kazakhstan – Republic of Kazakhstan
Kenya – Republic of Kenya
Kiribati – Republic of Kiribati
Korea, North – Democratic People’s Republic of Korea (North Korea)
Korea, South – Republic of Korea (South Korea)
Kosovo – Republic of Kosovo
Kuwait – State of Kuwait
Kyrgyzstan – Kyrgyz Republic
Laos – Lao People’s Democratic Republic
Latvia – Republic of Latvia
Lebanon – Republic of Lebanon
Lesotho – Kingdom of Lesotho
Liberia – Republic of Liberia
Libya -Socialist People’s Libyan Arab Great Jamahiriya
Liechtenstein – Principality of Liechtenstein
Lithuania – Republic of Lithuania
Luxembourg – Grand Duchy of Luxembourg
Macao special administrative region of Macao
Macedonia – (Former Yugoslav) Republic of Macedonia
Madagascar – Republic of Madagascar
Malawi – Republic of Malawi
Maldives – Republic of Maldives
Mali – Republic of Mali
Malta – Republic of Malta
Marshall Islands – Republic of the Marshall Islands
Mauritania – Islamic Republic of Mauritania
Mauritius – Republic of Mauritius
Mexico – United Mexican States
Micronesia – Federated States of Micronesia
Moldova – Republic of Moldova
Monaco – Principality of Monaco
Mozambique – Republic of MozambiqueKaeven ka Aipinge, Pohamba’s China Stance Disappoints, Namibia Economist
Kaseven ka Aipinge
Nauru – Republic of Nauru
Nepal – Federal Democratic Republic of Nepal
The Netherlands – Kingdom of the Netherlands
Nicaragua – Republic of Nicaragua
Niger – Republic of Niger
Nigeria – Federal Republic of Nigeria
Norway – Kingdom of Norway
Oman – Sultanate of Oman
Pakistan – Islamic Republic of Pakistan
Palau – Republic of Palau
Panama – Republic of Panama
Papua New Guinea – Independent State of Papua New Geuinea
Paraguay – Republic of Paraguay
Peru – Republic of Peru
Philippines – Republic of the Philippines
Poland – Republic of Poland
Portugal – Portuguese Republic
Qatar – State of Qatar
Rwanda – Republic of Rwanda
Saint Kitts and Nevis – Federation of Saint Christopher and Nevis
Saint Vincent and the Grenadines
Samoa – Independent State of Samoa
San Marino – Republic of San Marino
São Tomé and Príncipe – Democratic Republic of São Tomé and Príncipe
Saudi Arabia – Kingdom of Saudi Arabia
Senegal – Republic of Senegal
Serbia – Republic of Serbia
Seychelles – Republic of Seychelles
Sierra Leone – Republic of Sierra Leone
Singapore – Republic of SingaporeRaymond Lau, Thousands of pirated Microsoft software confiscated in a police raid, Techgoondu, April 9, 2011.
Somalia – Federal Republic of Somalia
South Africa – Republic of South Africa
Spain – Kingdom of Spain
Sri Lanka – Democratic Socialist Republic of Sri Lanka
Sudan – Republic of the Sudan
Suriname – Republic of Suriname
Swaziland – Kingdom of Swaziland
Sweden – Kingdom of Sweden
Switzerland – Swiss Confederation
Syria – Syrian Arab Republic
Taiwan – Republic of China
Tajikistan – Republic of Tajikistan
Tanzania – United Republic of Tanzania
Thailand – Kingdom of Thailand
Friedmann, Danny, IP Dragon, China Bad News for Thailand’s Counterfeit Manufacturers, November 28, 2007
Pataya People newspaper Thailand, Goods confiscated from Tukcom
Togo – Togolese Republic
Tonga – Kingdom of Tonga
Trinidad and Tobago – Republic of Trinidad an Tobago
Tunisia – Tunisian Republic
Turkey – Republic of Turkey
United Kingdom – United Kingdom of Great Britain and Northern IrelandBen Hirschler, British man jailed after record fake medicine bust, Reuters.
Bradford man cleared of fake medicine scam, Wiltshire Times, April 11, 2011.
Uruguay – Eastern Republic of Uruguay
Uzbekistan – Republic of Uzbekistan
Vanuatu – Republic of Vanuatu
Vatican City – State of the Vatican City
Venezuela – Bolivarian Republic of Venezuala
Vietnam – Socialist Republic of Vietnam
Yemen – Republic of Yemen
Zambia – Republic of Zambia
Zimbabwe – Republic of Zimbabwe
Xin Dingding and Wang Huazhong report on an anti-tobacco non-governmental organisation (NGO) called Think Tank Research Center for Health Development, that submitted a petition on April 14, 2009 to the Beijing Trademark Office to stop the use of Zhongnanhai, the complex of buildings in Beijing which serves as the central headquarters of the Communist Party of China, as a trademark for … cigarettes, because it would mislead consumers.
Zhongnanhai cigarettes have an interesting history, because they used to be specially made for Chairman Mao in the Sixties, read here. The question is do they have an interesting future?
Article 10 (1) Trademark Law: Those identical with or similar to the State name, national flag, national emblem, military flag, or decorations, of the People’s Republic of China, with names of the places where the Central and State organs are located, or with the names and designs of landmark buildings.” The NGO has definitively a point.
Read Xin and Wang’s article for China Daily here.
Hat tip to Mikołaj Rogowski, a law student of Jagiellonian University, Krakow, Poland, who pointed me to this article. Mikołaj is going to write a guest article on IP Dragon in the near future.
Since April 9, when I blogged ‘China and ACTA: Why the problem is not made part of the solution‘, new information about the Anti-Counterfeiting Trade Agreement (ACTA) has leaked, see Wikileaks here. It makes you realise how transparent the founding parties to ACTA want to be. Compare the United States Trade Representative posting a 6 page Summary, April 6, 2009 with the 48 page draft that leaked.
Remember the Silk Market Appeal Case/Landlord Case about which I blogged at the exact same date, but then in 2006? Read here. Well, a lot has happened in the mean time:
The Beijing Silk Market (before known as Silk Street or Silk Alley) vendors of counterfeit Burberry, Chanel, Gucci, Louis Vuitton and Prada products, have again overstepped the boundaries of accepted behaviour. After a long history of infringing these luxury brand’s trademarks, design-patents and copyrights, the market management organisation entered into an anti-counterfeiting agreement with the coalition of luxury brands, last December (2008). The agreement was that the market manager would close down a stall for two weeks if is caught infringing intellectual property rights of the luxury brands coalition. If the infringing vendor is paying 5000 renminbi to the coalition in the first three days, the ban is reduced to one week.
So far, so good. But now the market management has sued the Chinese law firm IntellecPro which has been acting for the coalition at the Beijing Chaoyang People’s Court for lost earnings after being shot down temporarily. They might think the best defense is offence.
You might have seen the movie ‘The Devil Wears Prada‘. A more empirical title could be ‘The Devil Sells fake Prada’. Research conducted by Duke and MIT professor Dan Ariely (author of Predictably Irrational) found out that owning a counterfeit product significantly corrupts your morality.
Complainants:
Tate & Lyle Technology Limited of London, United Kingdom;
Tate & Lyle Sucralose, Inc. of Decatur, IL.
Section 1. Civil Enforcement
Google is trying to get a bit closer to Baidu, the number one search engine in China. Therefore it is offering the users of google.cn free music downloads. It is legal, because all copyright holders have given permission.
March 16, Tim LeeMaster wrote for the South China Morning Post, the English language newspaper of Hong Kong, that China Investment Corporation is considering to take an equity stake of 10 percent in the French luxury goods company LVMH. Head tip to the China Economic Review, read here.
Recently I have been corresponding about Traditional Chinese Medicine (TCM) and which intellectual property rights (IPR) can protect them. I just read Mr or Ms Jia’s interesting paper on TCM (Jia Q., The World Health Organization, ‘Traditional Chinese Medicine Could Make “Health for One” [Come] True’, 2006) which includes a very interesting chapter on intellectual property rights:
… US copyright policy
Mr Gaylor: “In the 1990s the US hatched a plan to trade the economy of things for the economy of ideas.
Andy Greenberg wrote two great articles for Forbes about video copyright piracy in China.
I just listened to the IP Think Tank Podcast of February 16, 2009 which is an initiative of Duncan Bucknell Company. Besides an interesting review of the WTO report on DS 362, the IP Think Tank Podcast has a lot to offer to any IPR enthusiast. At the end, Mr Nicholas Redfearn, Rouse country manager in Hong Kong, told about two recent books that convey two diametrical opposite views of China’s path to patent and innovation growth (the assumption implied is that there is a strong correlation between the growth of patents and innovation in a country).
Gupta and Wang’s book is the most recent, whether it will be more accurate on this, we will have to see. What is your opinion about it? Let me know (ipdragon at gmail dot com). Listen to the IP Think Tank Podcast here.
IP Dragon’s Danny Friedmann asked foreign registered lawyer and IPR in China specialist Mr Joseph Simone of Baker & McKenzie in Hong Kong about which course of action the US could take after the decision, WTO DS 362 Report, by the dispute settlement panel on United States’ complaint against “China — Measures affecting the protection and enforcement of intellectual property rights.”
IP Dragon: Could you please give your opinion on the best recommendation the IACC can give to the USTR in regard to their Special 301 Review about China’s status: ‘Priority Watch List or Priority Foreign Country/Section 306 Monitoring?
Joseph Simone: “I think the issue of thresholds is one which continues to deserve priority attention–along with the other issues mentioned in the 2009 Special 301 report of IACC. So “Priority Foreign Country” seems preferable, but if USTR has no plans to file an appeal or a fresh case in the very near term, then I’d expect them to decide on Priority Watch List and Section 306 Monitoring.”
IP Dragon: Why should the US appeal the panel decision?
Joseph Simone: “It’s quicker/cheaper than refiling- any refiling would probably require fresh data from industry- USTR wouldn’t need more political support from Industry (really) to appeal – they arguably have a fiat already.”
IP Dragon: What would a refiling mean?
Joseph Simone: “A refiling would require a lot more preparation work- an appeal would not annoy China so much as a refiling- the WTO Appellate Body has in the past shifted the burden of proof to defendants (here, China) in analogous cases, the latest being the one involving gambling (DS 285).”
IP Dragon: Did the US have enough information to base their claim?
Joseph Simone: “The US should in any case ask China for narrower data under a new article 63 (3) TRIPs request. The last one in 2006 was way to broad. If China comes through with useful data, the US may not need to ask industry for case info.
IP Dragon: What are your hopes in respect to what China should do?
Joseph Simone: “I’m really hoping China will wake up and decide to start a serious governmental/academic and legislative research project to reform all aspects of IP enforcement–including the Criminal Code.
IP Dragon: What is the magnitude of the problem of counterfeits that originate from China in the developing and developed countries?
Joseph Simone: “For example in Tanzania, between 15 and 20 percent of ALL GOODS circulating were found to be fakes from China, according to the Confederation of Tanzania Industries and up to 30 percent of medicines are counterfeit, according to a 2006 report by the World Health Organization. And for example in Japan, as you have seen, almost 82 percent of all counterfeit products originate from China.”
More aricles about counterfeit goods in Africa originating from China:
– ‘Tanzania: Counterfeit Drugs Put Lives at Risk’, allAfrica.com, January 15, 2009, read here.
– Wadhams, Nick, ‘Rapid Rise In African Anti-Counterfeiting Efforts Led By Developed Nations’ IP-Watch, December 9, 2008, read here.
– Nakaweesi, Dorothy, ‘Traders battle counterfeit products from China’, Daily Monitor Uganda, October 14, 2008, read here
The International Anti-Counterfeiting Coalition (IACC) is an organisation that represents companies concerned with trademark counterfeiting and copyright piracy. The IACC submitted the following recommendations to the Office of the US Trade Representative (USTR) in their annual Special 301 review of intellectual property protection issues in foreign countries. As in the past years, China and Russia remain the main concern for the IACC. China should be dealt with as a Priority Foreign Country, Section 306 Monitoring, according to IACC.
The Japan Times is running (and probably translated) Kyodo News’ article which is quoting Japan’s Finance Ministry saying that 81.5 percent of counterfeit products come from China.
Read The Japan’s Times article here.
Guidelines of the Supreme People’s Court on Implementing the National IP Strategy