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Taiwan’s Exciting 2007: IP Case Proceeding, IP Court and Patent Attorney Acts

Posted on November 27, 2007 by Dr. Danny Friedmann

Tsai Lee & Chen describes 2007 as “exciting for IP professionals in Taiwan”. In the course of merely six months, the Legislative Yuan (Taiwan’s Congress) has passed three important laws and regulations related to the protection and enforcement of intellectual property rights.

Intellectual Property Case Proceeding Act;
Intellectual Property Court Organic Act; and
Patent Attorney Act.

For a brief summary of these Taiwanese IP milestone laws see here.

Taiwanese IP laws (although the above mentioned I have not found there yet) can be found at the site of the Taiwan Intellectual Property Office (TIPO) of the Ministry of Economic Affairs of the Republic of China, see here.

Taiwan’s national IP regime can be found here.

Preferring Price Discrimination Over Sidestepping Patents?

Posted on November 27, 2007 by Dr. Danny Friedmann

Andrew Jack of the Financial Times wrote an article about discussions between 500 representatives of government, industry and NGO’s about patents at the World Health Organisation.

The article, which is named ‘Pressure over patents forces pharma on to the back foot’ mentions a possible and intriguing solution to tackle the tension between accessibility of medicines in poor countries and return on investment by using patents.

“The trade-off is whether richer patients in poorer but fast-growing countries such as India, China and Brazil should not contribute more to the overall costs of medical innovation, rather than simply paying the marginal production cost of drugs.
Companies such as GlaxoSmithKline and Pfizer have been studying whether they can introduce more differential pricing within developing countries, charging less to poorer patients while preventing richer ones from getting those drugs as cheaply.“

Price discrimination between rich and poor patients. Unemployment benefits, if any, could include medicines for example. Read Mr Jack’s article here. Hat tip to Jeff Roberts of McGill’s great CIPP “IP News This Week”. See also the CIPP Blog here, by IP scholars from McGill University.

Tagged Jeff Roberts, McGill University, medicines, patent | Comments Off

Mr Schwabach’s Essay Debunks Perception IP Piracy in China, But Remains Silent About IP Infringements In/From China

Posted on November 27, 2007 by Dr. Danny Friedmann

Aaron Schwabach wrote an well written and interesting essay called ‘Intellectual Property Piracy: Perception and Reality in China, the United States, and Elsewhere’. Find the pdf here.

Mr Schwabach starts with the quote: “There is probably more misinformation about China than about any other country in the world”. That is hard to proof. But it is also IP Dragon’s mission to make intellectual property in China, including its perception in the world at large more transparent. So IP Dragon was very happy that Mr Schwabach took upon himself the difficult task to debunk a perception gone awry, at least in the eyes of Mr Schwabach.

Mr Schwabach wants to drive home the point that there is a widespread but incorrect perception in the US that IP piracy is only or primarily a problem in developing countries, especially East Asian countries, and most especially China.

First IP Dragon opines IP infringements (counterfeit and piracy) from China is a bigger problem than IP infringements in China. This will change over time, when the demographics change in China and a more substantial middle class comes into existence.

Although Mr Schwabach rejected the cover showing a card table covered with DVDs and VCDs of Hollywood movies, presumably offered for sale, labeled in Chinese, because “it is only a very small part of IP law and receives only brief discussion in the [Mr Schwabach’s book called Intellectual Property] book on intellectual property law”. This essay is only about copyright piracy in China. And it does not mention a thing about seize or dimension of copyright piracy coming from China or counterfeiting in China and originating from China.

I guess Mr Schwabach is fighting fire (incorrect perception of importance of IP piracy in China) with fire (remaining silent about the importance of other IP infringements in and from China, at least in this essay).

Well having written this, let’s look at his assertions that are to debunk the perception about IP piracy in China:

His theory that countries or the Special Administrative Region of Hong Kong has a low per-capita loss, because of its movie industry, is hard to proof, since this could also be caused, because of Hong Kong’s different jurisdiction and the more effective enforcement authorities. But it is an interesting thesis, which deserves further study.

Mr Schwabach looks at different statistics:

MPA members’ lost revenues, per capita
IP Dragon agrees with Mr Schwabach’s assessment that online piracy is harder to catch and sellers of pirated DVDs are out in the open, so it is easier to put the attention on this group.

Per capita cost of piracy is negligible in China according to Mr Schwabach. He thinks that although a significant percentage of China’s 1.3 billion people are excluded from participating in the modern information society, the explanation lies in the language of the Hollywood movies, which are in English. However, I do not think Mr Schwabach ever saw a pirated movie, which pleads for him. If he did, he could see that many are subtitled with Chinese characters.
IP Dragon opines the first reason, the exclusion of the majority of the Chinese of DVD players is the reason there is not much per capita cost of piracy.

MPA members’ lost consumer spending due to movie piracy, per capita
The statistics show that the total loss of consumer spending due to movie piracy in China at 2,7 billion dollar, is the highest total amount of any country in the study other than the US. However, not the highest per capita, because again of the dilution by the poor masses.

Total consumer spending lost to movie piracy, per capita
Because Chinese also watch Chinese pirated movies, the per capita consumer spending is somewhat higher than the MPA members’ lost consumer spending, due to movie piracy.

Retail sales value of music piracy, per capita
I do not understand the sentence: “And despite the near-universal availability of Internet access in the US, per capita sales of pirated music recordings are actually higher in the US than in 11 of the 21 other countries and territories listed here, including China, India, Korea, and Thailand, and comparable to rates in Hong Kong, Japan and Taiwan.” Maybe the word despite is a mistake.

I enjoyed reading Mr Schwabach’s essay and hope he will write about the importance of IP infringements (piracy and counterfeiting) originating from China too. Perception is best served when the bigger picture/context is given too of the IP in/from China challenge.

Tagged Aaron Schwabach, copyright infringement, counterfeit trademark, statistics | 2 Comments

Daniel Chow: Link Between Counterfeiting and Organised Crime

Posted on November 27, 2007 by Dr. Danny Friedmann

Jeffrey Sheban wrote a good article entitled ‘In the land of counterfeit’ for The Columbus Dispatch in which the link between counterfeiting and organised crime is suggested. He quotes Ohio State University law professor Mr Daniel C.K. Chow, who spent two years in China leading anti-counterfeiting efforts for the consumer products giant Procter & Gamble.

“Most consumers think it’s harmless fun to buy knockoffs,” Chow said. “But if you buy counterfeit products, you are supporting organized crime and all the abuses that come with it, including narcotics, smuggling and prostitution.” Read more here.

IP Dragon quoted Thomas Ehmer head of IP at Puma in January 2007 that the counterfeiting operations have become much more professional in 2006: “We are now facing organised crime,” he concludes.” Read more here.

The link between counterfeiting and organised crime different from counterfeiting, such as narcotics, (forced) prostitution, does not sound too far fetched, although IP Dragon has not found proof of this suggestion. But it makes sense for criminial organisations to stop their narcotics and prostitution operations and start or extend their operations with counterfeiting, since this is very profitable and the punishment is less severe in comparison to narcotics and prostitution.

Tagged counterfeit, Daniel Chow, organised crime | Comments Off

What Has Labour Contract Law in China to do with IP?

Posted on November 15, 2007 by Dr. Danny Friedmann

According to article 39 TRIPs undisclosed information, including trade secrets, shall be protected by the WTO members, including China. Now Steven Dickenson of the prolific China Law Blog wrote an article for China International Business about China’s new labour contract law, which will go into effect on January 1, 2008.

So what is relevant to intellectual property in China?

Mr Dickenson writes:
“Non-competition agreements restricted. Many foreign employers require most or all of their Chinese employees to enter into non-competition agreements that restrict their right to work for a competitor after termination of employment. The LCL imposes significant restrictions on the use of these agreements. The most important restriction is that non-compete agreements cannot be imposed on all employees. Only senior management and other employees with access to critical trade secrets can be required to enter into a non-competition agreement. The agreement must be limited in duration to two years, must be limited in geographic scope to a reasonable area and the employer must pay compensation to the employee during the period that the non-competition restriction is in effect.“

Read Mr Dickenson’s article ‘Power to the People’ here and Dan Harris’ blog on China Law Blog here.

Read China’s labour contract law in English here, in Chinese here.

Tagged Labour Contract Law, trade secret, undisclosed information | 5 Comments

Gregory Lions About Fakes: Fashion Brands Have Asked For It

Posted on November 15, 2007 by Dr. Danny Friedmann

Mr Gregory Lions, a former financial analyst for Dun & Bradstreet Inc., and currently the CEO of Buyherebuynow.com is ranting that fashion brands by asking “outrageous prices” have brought the trademark infringements problem upon themselves.

“By pricing their wares in the stratosphere, designers are essentially causing the knock-off market to thrive. Women see these must have fashion accessories in magazines like VOGUE and ELLE and want them. But when a handbag costs what the average middle class woman makes in a year, what choice does she have? She can’t afford the real thing so she buys a copy, much the same way that an art lover who desires a Picasso will hang a lithograph on his wall.“
Read Mr Lions rant here at the site called Portugal.

Has Mr Lions a point? Not really. Many exclusive brand producers invest heavily in the creative process and in the marketing of the goods. There is nothing wrong if these companies want to price their products as high as they want or manufacture only a limited amount. The market will take care of it. Mr Lions is describing women as helpless victims of fashion, as if they do not have a choice. But, of course, they do.

There is a hierarchy of fashion. From haute couture to different degrees of prêt-à-porter, which is haute couture scaled down made from cheaper material and with increased volumes for the masses. A prêt-à-porter can be seen as the lithograph compared to the oil canvasses of Picasso.
And by the way, if you buy a lithograph of Picasso, the manufacturer of the lithograph has to pay for the use of the work, because there are still author’s rights on the works of Pablo Picasso. Answers about this subject can be found at The Succesion Picasso.

Professor Susan Scafidi covers the subject of counterfeit fashion at Counterfeit Chic extensively and in a great way.

Tagged counterfeit trademark, fashion, Gregory Lions, Picasso | Comments Off

From the Trenches of IP Education in China

Posted on November 12, 2007 by Dr. Danny Friedmann

It is great when practitioners of IP law in China share their knowledge with the next generation. Mr Stan Abrams, working at DLA Piper in Beijing made time for teachting at Central University of Finance and Economics (a co-operation programme between Cai Da, the University of Maryland and the University of Maastricht). Mr Abrams’ students are from the US, EU and China. Average classes are about 20 students. The IP lectures are part of a “China legal issues” class that includes a lot of other stuff. IP was five hours.

IP Dragon asked Mr Abrams about the educational goal he wants to achieve.
Mr Abrams: “I wanted to impart some practical lessons instead of just repeat what the law provides for. I also wanted to relate current law and legal reform to economic development policy and politics. I think there is a strong correlation between the two and can tell us where things are heading. Finally, I also wanted to give them not only the practitioner’s perspective, but also that of foreign companies doing business in China, i.e., my clients.”

Hear hear for this lofty goal. And for those who cannot attend Mr Abrams’ classes, tune in at his excellent blog China Hearsay.

UPDATE: IP Dragon had contact with Mr Daniel J. Mitterhoff, Director, CUFE-Maryland-Maastricht, the Collaborative Law Student Exchange Program. Thank you Mr. Mitterhoff for adding the following information:

Our program at the Law School of Central University of Finance and Economics (CUFE) is currently entitled the CUFE-Maryland-Maastricht Collaborative Student Exchange Program. Its long term mission is to create a bilingual learning environment (if not a bilingual law school) with students from around the globe participating. In the short term, it works like this: Students from University from Maryland School of Law and Maastricht University Faculty of Law come to CUFE in the autumn semester. They are grouped with students from CUFE, most of whom have already be designated to visit Maryland and Maastricht in the spring semester. This year we also have students from other schools visiting China, but they are not part of the exchange. The students study together and even conduct joint research.

Tagged Education, Maastricht University, University of Maryland | 1 Comment

ASK TongFang Donates RFID System to 2008 Beijing Olympic Games

Posted on November 12, 2007 by Dr. Danny Friedmann

Tsinghua TongFang, the joint-venture of French RFID company ASK, will donate the whole RFID system to the 2008 Beijing Olympic Games Organizing Committee which including the RFID inlays, gate readers, software and service. Read more here. Head tip to counterfeit.com.

The Tennis Master Cup in Shanghai in 2005 was also using RFID tickets, read here. And China is developing its own RFID standard to own the IPRs, read here.

Tagged Olympic Games, RFID | Comments Off

Troutman Sanders Adds IP Attorney Sebastian Hughes in HK

Posted on November 6, 2007 by Dr. Danny Friedmann

AsiaMedia sent me this press release:

“Hong Kong, 6th November 2007 – Global law firm Troutman Sanders LLP strengthened its intellectual property practice by adding well-known IP attorney Sebastian Hughes as a partner to its Asia team – further evidence that the U.S.-based firm continues to attract some of the world’s top legal talent.

Hughes has dedicated himself to IP issues, including trademark, anti-counterfeiting, copyright and patent litigation, for more than 10 years. He was named one of Hong Kong’s leading intellectual property lawyers in the 2006 and 2007 editions of Chambers Global – The World’s Leading Lawyers. His articles have appeared in the Financial Times Asia, World Internet Report, the Intellectual Property Forum and the Hong Kong Lawyer. An Australian native and fluent Chinese speaker, he will be based in Troutman Sanders’ Hong Kong office.”

Troutman Sanders‘ IP teams in Hong Kong and Shanghai are presently working on several important cases, including the representation of a leading U.S. electrical component manufacturer in a patent infringement lawsuit brought against them in China by a Chinese competitor. The firm is also assisting a large retailer to design a groundbreaking method to eliminate the sourcing of products that infringe upon the designs of products already in the marketplace.

Tagged AsiaMedia, Sebastian Hughes, Troutman Sanders | Comments Off

Words Less Spoken about Copyright Piracy in China

Posted on October 29, 2007 by Dr. Danny Friedmann

Much ado about copyright piracy in China. Liu Baijia wrote about China’s measures against copyright infringement in the article ‘Taking action against piracy’ for China Daily.

Many familiar arguments can be read here: about on the one hand China’s great speed of implementing IP legislation, where China needed only 20 years, other countries needed 100 years; and on the other that foreign countries need to be patient, because China has just begun in this field of enforcement.

But a novel way to write about the subject matter can also be found in the article; a defence against a complaint nobody but intellectual property infringers would make:

“We cannot criticize this dual protection on one hand for the government’s interference and on the other hand say the government should take more responsibility[..].” I think the role of government; protecting and enforcing law, including intellectual property rights, is not controversially, using the administrative enforcement route included.

A reason for the lack of enforcement by the National Copyright Administration of China (NAC), that remains unwritten in the article, is the NAC’ undercapacity. The NAC is staffed with only 200 people! (see page 46 of Paper Tiger or Roaring Dragon, China’s TRIPs Implementations and Enforcement).

Liu Baijiu writes: “In April, the Supreme People’s Court and the Supreme People’s Procuratorate issued a joint interpretation, sharply lowering the threshold for criminal charges against piracy set three years ago. According to the rule, organizations and individuals selling 500 pirated discs, instead of 1,000 in the 2004 rule, can receive a three year sentence, while those selling 2,500 copies can be sent to prison for seven years.”

However, one can argue as Joseph Simone, partner of Baker & McKenzie in Hong Kong, rightly does, that the threshold of 500 pirated disks is much too high. In this constellation infringers can sell 499 pirated disks in batches, so they will stay below the threshold.

The writer also gives information about the confiscated pirated goods. However, these statistics can never alone give a relevant picture about whether China’s enforcement is adequate. One needs the statistics about the infringement levels aswell. Read about my proposal for the use of the Enforcement/Infringement Ratio here.

Read Liu Baijia’s article here.

Tagged Baker and McKenzie, copyright piracy, Joseph Simone | 1 Comment

TRIPs Amendment; China’s Medicine For A New Pandemic?

Posted on October 29, 2007 by Dr. Danny Friedmann

It is good to be prepared for the worst. Zhu Zhe of the China Daily reports that last Sunday, during the 30th session of the National People’s Congress (NPC) Standing Committee, China’s legislature accepted an amendment to the World Trade Organization Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) to enhance access to medicines when dealing with public health emergencies, such as SARS and bird flu. Read Zhu Zhe’s article here.

Xinhua wrote: “The Chinese government hopes that approving the bill will help China tackle public health emergencies like SARS and bird flu more effectively.” Read the Xinhua article here. This legislation might help, but one could say that there is probably no alternative for transparency in case of pandemics or epidemics.

Agreement on the ‘Implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and public health of Decision of the General Council’ was made August 2003, see here. This agreement was incorporated as an amendment to the WTO TRIPS Agreement on the eve the Hong Kong Ministerial Conference in December 2005, see here.

The amendment will be formally built into the TRIPS Agreement when two thirds of the WTO members have ratified it. The WTO said members have set themselves until Dec. 1, 2007 to do this. The waiver remains in force until then.

So how will TRIPs look like if the amendment is incorporated?

“Five paragraphs come under Article 31 “bis” (i.e. an additional article after Article 31). The first allows pharmaceutical products made under compulsory licences to be exported to countries lacking production capacity.Other paragraphs deal with avoiding double remuneration to the patent-owner, regional trade agreements involving least-developed countries, “non-violation” and retaining all existing flexibilities under the TRIPS Agreement.

A further seven paragraphs are in a new annex to the TRIPS Agreement. These set out terms for using the system, and cover such issues as definitions, notification, avoiding the pharmaceuticals being diverted to the wrong markets, developing regional systems to allow economies of scale, and annual reviews in the TRIPS Council.

An “appendix” to the annex deals with assessing lack of manufacturing capability in the importing country. This was originally an annex to the 2003 decision.The new Article 31 “bis” and annex of the TRIPS Agreement are attached to a protocol of amendment. This in turn is attached to a General Council decision, which adopts the Protocol and opens it for members to accept it by 1 December 2007.”

Source: WTO’s article ‘Members OK amendment to make health flexibility permanent’ see here.

Tagged compulsory license, health and safety risks, medicines, TRIPs, WTO | Comments Off

Pinggu Peaches Only From China: China’s Position on GI

Posted on October 28, 2007 by Dr. Danny Friedmann

On June 21, IP Dragon mentioned that there would be an international symposium on geographical indications (GI) organised by the World Intellectual Property Organisation (WIPO) and China’s State Administration for Industry and Commerce (SAIC) in Beijing, June 26 to 28, see here. So it is the highest time to find out what China’s position is.

Let us first take a look at the terminology of geographical indications.

What is GI’s relation to the concepts indication of source and appellation of origin?

Mr Marcus Höpperger, acting director WIPO’s Law and International Classifications Division explains the differences and similarities:

Indication of source

Indication of source is used in articles 1 (2) and 10 of the Paris Convention for the protection of industrial property of 1883 (the original text of the Paris Convention did not provide for the prevention of the use of false indications per se, but only where such use occurred in connection with the use of a false trade name. This is not needed under the Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods) and throughout the Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods of 1891.

Article 1 (1) Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods: “[A]n indication of source can be defined as an indication referring to a country, or to a place in that country, as being the country or place of origin of a product.”

Appellation of origin

Appellation of origin is defined in article 2 (1) Lisbon Agreement for the Protection of Appellations of Origin and their International Registration of 1958:

“Appellation of origin” means the geographical name of a country, region, or locality, which serves to designate a product originating therein, the quality and characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors.”

Geographical indication

Article 22 (1) TRIPs Agreement defines geographical indications:

“Geographical indications are, for the purposes of this Agreement, indications which identify a good as originating in the territory of a Member [of the World Trade Organization], or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.”

When comparing these definitions, Mr Höpperger observes: “Indications of source only require that the product on which the indication of source is used originate in a certain geographical area. Thus, there are indications of source, which seem not to be covered by the definition of geographical indication under the TRIPS Agreement, namely indications of source whose use on products does not imply a particular quality, reputation or characteristic of those products. Geographical indications are more broadly defined than appellations of origin. In other words, all appellations of origin are geographical indications, but some geographical indications are not appellations of origin.” Read the WIPO document ( WIPO/GEO/BEI/07/7) here.

Approaches to protection

WTO members have to comply to the TRIPs Agreement, which is an intrinsical part of the WTO Agreement (Annex 1C). China is a WTO member since 2001. According to TRIPs, member states such as China have to protect geographical indications. But there is a wide variety of different approaches to choose from:

Unfair competition laws (passing off);
Consumer protection acts;
Agricultural quality control regimes;
Trademark laws (collective and certification marks);
Registration under specific sui generis GI laws.

Which approach or approaches did China choose to protect GI nationally?

In 2006 the US Patent and Trademark Office reported that: “[ ..] China protects geographical indications through a trademark system, administered by the CTMO. However, China has a second system for protecting geographical indications, administered through a separate government agency, which has led to confusion over protection of geographical indications and trademarks.” Read more here.

The second government agency can be identified as the General Administration of Quality and Security Inspection and Quarantine (AQSIQ). Article 26 Provisions for the Protection of Products of Geographical Indications:

“The AQSIQ shall accept the applications for registration of foreign geographical indications in the People’s Republic of China, and accord the protection thereto. Specific provisions to this effect shall be separately formulated.” See the Provisions for the Protection of Products of Geographical Indications here.

Contentious issues

The contentious issues under discussion in WTO are:

Negotiations on the establishment of a multilateral system of notification and registration of GIs for wines, as foreseen by article 23 (4) TRIPs.

There are three proposals towards notification and registration in order to be able to protect GIs internationally:

The Joint Proposal in TN/IP/W/10 sponsored by: Argentina, Australia, Canada, Chile, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Japan, Mexico, New Zealand, Nicaragua, Paraguay, Chinese Taipei and the United States. These Members propose a purely voluntary system. Members wishing to participate would notify a list of GIs, which would then be recorded on a database administered by the WTO Secretariat. Participating Members would commit to ensure that their procedures include the provision to consult the database when making decisions regarding registration and protection of trademarks and GIs for wines and spirits in accordance with its domestic law. Non-participating Members would be encouraged, but would not be obliged, to consult the database.
The EC proposal in TN/IP/W/11: it proposes a system whereby Members electing to participate would notify GIs into the system. Upon publication, other Members would have a 18-month period to lodge a reservation (i.e. to challenge) the notified GI on certain grounds, such as non-compliance with Article 22.1 definition or genericness. In the absence of challenges or if the challenges are withdrawn, the GI would be registered. Differences regarding challenges would be resolved through direct negotiations between the notifying and challenging Members. Once registered, the GI would produce an irrebuttable (i.e. no longer challengeable) presumption of eligibility for protection in the Members who have not challenged the GI or have withdrawn the challenges. This presumption also applies to non-participating Members that have not lodged reservations within the 18 months. The registered GI can be challenged at any time in participating Members on other grounds such as prior trademarks or grandfathered uses.
The Hong Kong, China proposal in TN/IP/W/8: it proposes a voluntary system whereby a registered GI would create a rebuttable presumption or “prima facie evidence” in participating Members with regard to the ownership of the GI, compliance with Article 22.1 definition and protection in the country of origin. While Hong Kong, China is not a producer of wines and spirits, it has made the proposal for systemic reasons. Its concern is that failure in this negotiating group might endanger the whole Round.

Source is the presentation by Ms Thu-Lang Tran Wasescha, counsellor Intellectual Property Division, WTO here.

The other contentious issue is the extension to other products of the higher level of protection, besides wines and spirits, which article 23 TRIPs affords to GIs. There is no requirement for these products that the non-authorised use of the GI is misleading. My guess is that China’s position on this issue is pro, because of China’s evident interest in this area.

Naturally, China wants to be able to enforce against international unauthorised users of the GIs Zhangqui Scallion, Xianju Waxberries, Dalian Jinzhou Big Cherries, Qianxi Chestnuts, Ningxia Red Lycium, Pinggu Peach.

Tagged geographical indications, SAIC, sui generis, WIPO | Comments Off

Alibaba and the IP Thieves; Domain Name, Trademark and Copyright Disputes

Posted on October 19, 2007 by Dr. Danny Friedmann

Cherry Zhang of Pacific Epoch wrote:
“Chinese e-commerce company Alibaba is in a trademark war with Beijing-based software company Beijing Zhengpu Technology to register the “Alibaba” name in China, reports Sohu. Alibaba originally applied for the trademark from China’s State Administration of Industry & Commerce (SAIC) on January 14, 2002, while Zhengpu applied for the name for its subsidiary 2688.com in 1999, according to the report. Due to objections submitted to the SAIC by the two companies or third-parties, both Alibaba and Zhengpu have experienced procedural delays and have been unable to register the trademark.”
Source Pacific Epoch.

Alibaba had also a domain name dispute with Zhengpu, back in 2002. In fact it was China’s first Chinese-language domain name dispute. Li Heng wrote about it for People’s Daily here.

“On 9 August 2002, the High People’s Court of Beijing Municipality rendered its final judgement in a suit by the owner of the domain names “2688.net”and “2688.com”, Beijing Zhengpu Science Development Co., Ltd. (Zhengpu). The court ruled in favor of the defendants, the China Internet Network Information Center (CNNIC) and Alibaba (China) Network Technology Co. Ltd. (Alibaba, the owner of the domain name “alibaba.com” and one of China’s first Internet companies).” Read page 3 of TransAsia Lawyers’ PRC Telecoms, Media & Technology Law Newsletter of October 2, 2002, here (pdf).

This March Alibaba was sued by 11 music companies for copyright infringement via Yahoo China which it operates. Read about the Alibaba case here.

Zhang Haitao sheds light on why Alibaba had to indemnify the music companies, while in the seemingly similar Baidu case (Baidu versus music companies) Baidu was pardoned. The difference was that in the Baidu case the plaintiff did not send a notice of warning to Baidu that it linked to sites that infringe copyrights, therefore it was relased from civil liabilities. Zhang writes: “In the Alibaba Case, however, the plaintiff sent a warning to the defendant, which resulted in the removal of some of the links to the disputed music but not all of these links were removed. Obviously, the defendant shall be liable for its failure to remove all of the links that the plaintiff required.“ Read Zhang’s article ‘China’s Internet Search Engines and the Struggle for Copyright Enforcement’in King & Wood IP Bulletin of September 2007, here.

Read IP Dragon’s posting about Baidu and Yahoo.cn in 2006 called ‘Yahoo.cn Mirroring Baidu.com’s Copyright Infringements here.

Tagged Alibaba, Baidu, Cherry Zhang, copyright infringment, domain name, King and Wood, trademark, TransAsia Lawyers, Yahoo, Zhang Haitao | 1 Comment

How to Protect Software in China? An Excellent Overview

Posted on October 18, 2007 by Dr. Danny Friedmann

Seagull Song Haiyan and Xu Yuezhou of King & Wood wrote an excellent overview about how to protect computer software in China. Song and Xu take a close look at the possibilities to use copyright, patent, trade secret and technology anti-circumvention protection. Read the article plus foot notes which was part of the King & Woodhere IP Bulletin of March 2007, here. The article was republished on the site of Monday here (free subscription).

Tagged King and Wood, Regulations on Computers Software Protection, Seagull Song Haiyan, software, Xu Yuezhou | Comments Off

Canton Fair Bans IP Infringers For Up to 4 Times, Camera Phones Make IP Infringement Too Easy

Posted on October 17, 2007 by Dr. Danny Friedmann

Many intellectual property owners have a dilemma. They have a product they want the world to show their product, but they don’t want the world to copy it. This problem is especially urgent at fairs and exhibitions. Zhan Lisheng and Jiang Wei of China Daily report that the organizing committee of the 102nd China Import and Export Fair (CIEF), commonly known as Canton Fair, will ban those who breach IPR of future exhibition opportunities. Read more here.

However, Xiong Qu of CCTV International clarified it in ‘Fair Trade Stresses IPR Protection’ that IP infringers can be suspended for up-to four-times from the trade fair under specific conditions. Besides, all participating companies must formally agree not to violate such rights. And fair organizers are cracking down harder on those who break the agreement. Read the CCTV International article which includes a video about it (IP Dragon was not able to see it) here.

The preparatory phase of IP infringement at fairs and exhibitions in practice:

“Tony has shipped in every one of his cushion designs to dazzle the world’s biggest retailers. But he is in a tricky situation. He must filter out the genuine buyers … from those he expects to steal his designs. In the series ‘Brits get rich in China’ you see Tony try to stop the “cushion paparazzi” pretending to talk through their camera phones but in fact making photos of the cushion designs. See the preparatory phase of IP infringement for yourself in the third episode of ‘Brits get rich in China’ here.

Ryan Beers working at the Shenzhen office of Lehman Lee & Xu warns visitors to perform due diligence on potential suppliers: “Often they are from outlying provinces and far from Guangzhou. In the event that due diligence is not performed on such suppliers, do not expect to be able to automatically pursue them via future fairs or by contacting nearby professional assistance.“ Read Beers’ blog about it on the China Blawg here.

Tagged Brits get rich in China, due diligence, fairs and exhibitions, Lehman Lee Xu | Comments Off

Fake Parallel Imported Disks Caught in Hong Kong

Posted on October 16, 2007 by Dr. Danny Friedmann

The definition of parallel import in Wikipedia is a non-counterfeit product imported from another country without the permission of the intellectual property owner.

After a week-long investigation with the help of the Motion Picture Association, Customs raided four retail shops in Mong Kok and Causeway Bay selling fake parallel-imported disks worth 1.15 million dollar and six people were arrested, on October 15, 2007, Customs and Excise Department of the Hong Kong government reports here.

A case of counterfeit “non-counterfeit product imported from another country without the permission of the intellectual property owner” so to say.

Tagged Customs and Excise Department, Hong Kong, parallel import | Comments Off

Update WTO IPR and Market Access Case Against China, And What Has Antigua To Do With It?

Posted on October 16, 2007 by Dr. Danny Friedmann

On April 10 the US requested consultations for two, interrelated, WTO cases:

DS362 China – Measures affecting the protection and enforcement of intellectual property rights

DS363 China – Measures affecting trading rights and distribution services for certain publications and audiovisual entertainment products

These cases are interrelated, because market access is a contributory factor to intellectual property infringement. The salient example is the limited number of movies that are annually allowed into the Chinese market. The number of foreign movies that can be shown in Chinese cinemas is limited to 20 movies per year. One can argue that this stimulated pirated DVDs to the point that only 7 per cent of the DVDs on the market are legitimate. Reuters, ‘Market access key to piracy fight’, The Age, December 8, 2006, available here.

What happened so far with the respective cases?

DS 362: The following countries joined the consultations: Japan (April 20, 2007), Canada and the European Communities (April 25, 2007), Mexico (April 26, 2007). Subsequently, China informed the DSB that it had accepted the requests of Canada, the European Communities, Japan and Mexico to join the consultations. October 7, 2007, Australian trade minister Warren Truss announced that Australia is going to participate as a third country in the dispute.

“Participation as a third party does not mean we are taking sides in the case,” Mr Truss said. “It does, however, allow us to register our views on the legal issues raised in the dispute.” Read more here.

September 25, the WTO decided to establish a panel to investigate the claim by the US that China enforces its IP insufficiently. The US and China had twenty days to agree on the panelists. This means that the parties should have agreed yesterday, read more here.

DS363: October 11, 2007, the US Trade Representative has requested the WTO to establish a dispute settlement panel. The US panel request will be considered by the Dispute Resolution Body at its next meeting which will be held October 22, 20007. Read more here.

DS 285 A seemingly unrelated case is the WTO case by Antigua and Barbuda case against the US, because of America’s prohibition to offer cross-border gambling and betting services to US citizens (DS285). Seemingly, because Mr Hartley Henderson of Majorwager.com writes:

“In fact many countries are closely monitoring this case to see if the United States is really committed to the WTO and is willing to abide by its rules. In particular, countries like China and a few in Africa are very interested in the outcome of this case given the pressure being exerted on them by the USTR to open up more of its industries. If the USTRs show that they consider the WTO to be a one-way street in favor of themselves, then naturally those industries will stay closed to American interests. The following few months will speak volumes about how serious the U.S. is in the WTO process. ” Read Mr Henderson’s article here.

Tagged Australia, DS362, DS363, European Communities, Japan, Mexico, Warren Truss, WTO Dispute Settlement | 1 Comment

The Fundamentals: Definition Piracy and Counterfeiting

Posted on October 9, 2007 by Dr. Danny Friedmann

Inspired by the open source movement I invited everybody to give feedback to my thesis. Attorney at law Mr Michiel Amende, LL.M of Amende Advocaten in the Netherlands advised me to include a list of definitions. I totally agree. So, let us start with the definitions of counterfeiting and piracy.

Ms Ay Ling Josaputra has compared the definitions of TRIPs, EU Regulation 1383/2003 and Chinese legislation.

TRIPs uses the following ones:
Article 51 TRIPs: Counterfeit trade mark goods shall mean any goods, including packaging, bearing without authorization a trade mark which is identical to the trade mark validly registered in its essential aspects form such a trade mark, and which thereby infringed the rights of the owner of the trade mark in question under the law of the country of importation”

“pirated copyright goods shall mean any goods which are copies made without the consent of the right holder or person duly authorized by the right holder in the country of production and which made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country of importation.”

Article 2 EU Regulation 1383/2003: expands the term piracy to designs.

Neither the counterfeiting and piracy definitions of TRIPs nor those of the EU Regulation 1383/2003 refer to the copying of a patent.

However, in the Chinese national laws counterfeiting refers not only to trade marks but also to patents.

According to G. Zhang, English-Chinese and Chinese-English Intellectual Property Dictionary (Yinghan-Hanying Zhishichanquan Baohu Cidian), Beijing, Law Publishing House, 1996, pp. 222, 275 and 276, the word piracy (daoban 盗版), is linked with copyrights, and the word for counterfeiting (weizao 为造) or jiamao (假冒) is linked with patents and trade marks.

Ms Josaputra rightly points out that oftentimes the definition of counterfeiting is interpreted more broadly to include any infringement of the exclusive right of the holder and not only in case of copying an identical trade mark on an identical good, but the copying of a similar trade mark on the same good if it is likely to confuse the public.

Source: Ay Ling Josaputra ‘Catching the Copycat, Combating counterfeiting and piracy in the EU and China’, University of Leiden.

Tagged Amende Advocaten, copyright piracy, definitions, ethics of counterfeiting and piracy | 1 Comment

TGIF: Satire Lashes Out At China’s Olympic Logo

Posted on October 5, 2007 by Dr. Danny Friedmann

Thank goodness it’s Friday again!

Brand owners are not always pleased with the way other people use/abuse their logo in the name of satire. With the following cartoon I am sure the Chinese government and the Chinese Olympics Committee will not be amused. Hat tip to Jeremy Phillips of the renowned IP Kat that links to Vincent Chow’s cartoon on ‘How Beijing 2008 got its logo’ see here.

In February IP Dragon pleaded for a satire limitation of a trademark right: ‘Should trademark law have a sense of humour?’, read here. What do you think?

Tagged IP Kat, Olympic Games, trademark | Comments Off

Trademark and Trade Dress Infringement Case: Wangzhihe versus German Supermarket OKAI

Posted on October 5, 2007 by Dr. Danny Friedmann

Mr Peter Ollier of Managing Intellectual Properties investigates the challenges Chinese brands have in their strategy to conquer foreign markets, read more here. He mentioned the trademark infringement case of Wangzhihe (Beijing flavoured Beancurd), which was founded in 1678! according to Xinhua, versus OKAI, a German supermarket chain. A Munich Court started hearing the case August 8, Mr Ollier writes.

Mr Ollier uses this example to look more generally to potential problems facing Chinese companies who have set their eyes on expansion abroad:

prior trademark registrations;

high cost of international filings;

the need to translate their name or rebrand altogether;

lack of awareness within the company about the importance of brand protection;

in some cases: becoming sufficiently innovative to make the move from OEM (original equipment manufacturer) to creating a distinctive, valuable brand.

Read the Xinhua article: ‘Beancurd Brand Filed Lawsuit Against German Company’ here and the IPR.gov.cn article ‘Chinese brands Wangzhihe, Baijia bring German company to court’ here.

UPDATE: Mr Peter Ollier of Managing Intellectual Property was so kind as to elaborate about the identity of the defendant at the request of IP Dragon: “Okai Import Export GmbH | Okai China Supermarkt | China & Asia Lebensmittel Industrieproduktion”, based in Berlin, Germany. Thank you Mr Ollier.

Tagged counterfeit trademark, OKAI, Peter Ollier, trade dress, Wangzhihe | Comments Off

Human Resources And Intellectual Property Management Inseparable

Posted on October 5, 2007 by Dr. Danny Friedmann

Heidrick & Struggles, one of the two licensed foreign executive search firms in China, have published an interesting series called China Perspective about important aspects of Human Resources for international, multinational and transnational companies doing business in China. See here. Hat tip to Dan Harris of China Law Blog, who is tipping his hat to All Roads Lead to China (yes, the community of China bloggers is extremely polite).

IP Dragon read all 36 pages intently looking for Heidrick & Struggles take on Human Resources and intellectual property in China. On page 25 and 26 IP Dragon was rewarded. In a Q&A Mr Steve Mullinjer, managing partner of Heidrick & Struggles rightly answers product imitation as one of the major challenges for US and European companies operating in China. Mr Mullinjer gives the example of Duracell batteries and says that imitation is generally linked to the formative stages of an emerging economy and the evolution of technololgy that is copied.

Mr Mullinjer asserts that: “A large number of these imitators have been propped up by soft loans from the Chinese government and also have the homefield advantage of being able to navigate the regulatory environment more flexibly than their Western competitors.”

Mr Mullinjer gives some reasons that “threaten the viability of Chinese imitators down the road” thanks to the reform that the WTO will ultimately force upon Chinese state-owned companies and collectives:

Soft loan support will disappear;

many of these companies lose their structural advantages and preferential regulatory conditions they once enjoyed.

Mr Mullinjer is pretty optimistic that the imitators’ opportunities will vanish eventually: “The combined effect of sustained and powerful lobbying by foreign MNC’s, the development of a more robust legal and regulatory structure, and the impact of the WTO will significantly constrain the activities of Chinese imitators in the future.“

IP Dragon can concur with Mr Mullinjer, however, IP Dragon is not that optimistic about the impact of WTO when it concerns the WTO case of the US against China for alleged insufficient IP enforcement based upon alleged non-compliance of TRIPs. This is because the articles 41, 46 and 61 TRIPs are ambiguous and TRIPs is intrinsically weak because of its low ambition level. Especially article 41 (5) TRIPs can be considered the Achilles heel of this treaty. Article 41 (5) TRIPs states that members do not have to put in place a judicial system for the enforcement of intellectual property rights that is distinct from the enforcement of law in general. This means that if for example the enforcement of tax is lax, so can be the enforcement of IP. Read more about it in Chapter 6.2.1.5 (pg. 46) of IP Dragon’s thesis, here.

In Chapter 10.2.2 of the thesis IP Dragon gives reasons why it is not wise to file a WTO case against China. Professor Peter K. Yu [of the Michigan State University] gives five reasons:

1. There is no clear definition for effective enforcement. This can also be said about the terms effective deterrent and deterrent.

2. A complainant country needs to have sufficient evidence. IP Dragon: Companies seem unwilling to submit complaints, since they are afraid of losing business in China because of disturbed relations with the government.

3. Almost all of the existing WTO cases focus on more specific provisions, rather than a lack of general enforcement, so there is no clear precedence.

4. An adverse WTO ruling should be taken into account.

5. China needs guidance to help it make the transition to full compliance with WTO rules. More specific non-compliance cases are better for this purpose.

IP Dragon adds:

6. Even if China will get reprimanded by a WTO panel decision and the complainant countries retaliate with unilateral sanctions, this will not automatically result in adequate IPR enforcement in China and acceptable IPR infringements levels originating from China. Because of decentralised power bases, the central government in Beijing might be not powerful enough. Read Chapter 10.2.2 (pg. 85) of IP Dragon’s thesis here.

As the Heidrick & Struggles series implicitly points out intellectual property protection and Human Resources Management are inseparable. When operating in China you need to build a loyal team of employees. You do not want to train future competitors and employees who give away your business secrets. So next to registering your IP rights, your HR management is key.

Read Heidrick & Struggles’ China Perspective here.

Tagged Heidrick and Struggles, human resources, Peter K. Yu, Steve Mullinjer, thesis, WTO | Comments Off

Did Schneider Electric Infringed Its Own French Patent In China?

Posted on October 5, 2007 by Dr. Danny Friedmann

These days a high voltage commercial dispute is raging in the transnational low voltage products industry about a utility model, (which falls under the Patent Law, see article 2). What happened?

Saturday, September 29, the Wenzhou Intermediate People’s Court ruled in the case of the Chint Group Co. versus Leqing Branch of Star Electric Equipment Co. Ltd. (the first defendant) an authorised distributor of Schneider Electric and the Tianjin-based joint venture in which Schneider Electric holds 75 percent (the second defendant), that both defendants infringed Chint’s patent.

The court ordered:

that the defendants stop selling five models of products that are based on the technology owned by Chint Group;

Schneider Electric should pay 334.8 million yuan (4.3 million U.S. dollars) in ten days to compensate Chint’s economic losses due to the unauthorized production and sales of the apparatus.

The Ministry of Commerce republished the Xinhua article which said: “Court investigations show that Schneider earned 883.6 million yuan (117 million U.S. dollars) by selling the five models of apparatus [which was used by Schneider in the manufacturing of C65a, C65N, C65H, C65L and EA9AN products (IP Dragon)], which fell in the protected scope of Chint’s patent right, from August 2004 to July 2006 and made a profit of 334.8 million yuan.” Read more here.

If this is true, Schneider Electric could be relieved by the verdict. If Schneider Electric has its patent registered in France this does not mean that it has a patent in China. However, Schneider Electric, claims that Chint Group’s patent is invalid.

In November 1997, Chint Group filed an application, with the State Intellectual Property Office, for a patent for utility model named “A Miniature Circuit Breaker”.

Schneider Electric’s claim that Chint Group’s patent is invalid was refuted by the State Intellectual Property Organisation (SIPO) and Chint Group was granted the patent right in March 1999.

Then Chint Group started manufacturing and selling the patented NB1 series.

Schneider Electric does not agree with the refutation of its claim that the patent is invalid. So it started a procedure against SIPO’s decision at the Beijing No. 1 Intemediate People’s Court. The outcome is unknown, yet.

The 334.8 million yuan is the highest amount of compensation a company has to pay in case of an intellectual property dispute in China, accourding to Xinhua. Schneider Electric considers to file a lawsuit at the Supreme People’s Court against the verdict of the Wenzhou Intermediate People’s Court.

Domique Buffier of Le Monde reports about it as well, in French, here. Thanks for the link CH of Mobimania.

UPDATE April 17, 2009:

The case has been settled: read ‘Schneider Patent Case to be Settled‘ by China Hearsay blogger Stan Abrams and the Xinhua article at China Daily ‘French electrical firm pays $23m for IPR violation‘

‘French electrical firm pays $23m for IPR violation

Tagged Beijing No. 1 Intermediate People's Court, Chint Group, record compensation, Schneider Electric, SIPO, Star Electric Equipment, Wenzhou Intermediate People's Court | Comments Off

Next Step in WTO Copyright Case Against China: Investigation Panel

Posted on September 25, 2007 by Dr. Danny Friedmann

Today, the WTO has decided to establish a panel to investigate the claim by the US that China enforces IP insufficiently.

Yan Liang of Xinhua writes:
“The panel decision was automatically made at a meeting of the WTO’s Dispute Settlement Body, following a second request by the United States. Washington’s first request for such a panel was made last month but rejected by China in accordance with WTO rules.“

Ms Lisa Schlein of the Voice of America News writes:
“The two parties now have 20 days in which to agree on the three panelists. If they are unable to do so, the Director General of the World Trade Organization will name the panel.“

However Ms Schlein quotes WTO Spokesman, Keith Rockwell saying that WTO members can decide to suspend the panel’s work and try to resolve the matter bilaterally at any time during the process.

Read the Xinhua article here, the VOA’s article here, and a BBC article about it here.

More about the IP related WTO cases against China by the US:

Paper Tiger or Roaring Dragon, China’s Implementations and Enforcement
IP in China; Never a Dull Moment
Sino-American WTO Consultations Disaster, Blame Game Ensues
EU Will Not Support US WTO Piracy Case: Good Cop Approach
WTO Case Against China: Choose Your Battles Wisely

UPDATE: Stan Abrams of China Hearsay wrote a nice post about China’s rhetoric against the WTO IP Case, read here.

Tagged rhetoric, WTO Dispute Settlement | Comments Off

Prosaic End of Poetic SMS Copyright Infringement Case

Posted on September 25, 2007 by Dr. Danny Friedmann

September 13, the Shanghai No. 2 Intermediate People’s Court ruled that internet portal Sohu.com should pay writer Mr Fu Zhanbei 100,000 yuan (US $ 13,000) and a public apology, for infringing upon Mr Fu’s copyright by selling his poetic work without permission via SMS texts. According to NewsMax, this is the first time an infringer, that has violated copyright via SMS texts, has been ordered to compensate the copyright owner in China.

NewsMax wrote:

“Fu said he sued the Web site after discovering in June that 190 love notes he wrote were for sale on Sohu.com for about 2 1/2 cents each, although a distribution agreement between him and the company had expired in March 2006.“

Mr Fu, however, was disappointed with the damages Sohu.com was ordered to pay:

“One hundred thousand yuan will not deter Sohu from conducting more violations in the future,” Fu said. “It’s even not a warning.“

Read NewsMax’ article here.

Tagged Fu Zhanbei, NewsMax, Shanghai No. 1 Intermediate People's Court, SMS | Comments Off

Hong Kong Exhibition Celebrates Creative Industry and IP Protection

Posted on September 25, 2007 by Dr. Danny Friedmann

Today’s WIPO’s press release states:

“An exhibition showcasing various facets of creativity in the Hong Kong Special Administrative Region (SAR) was inaugurated on Monday evening at the World Intellectual Property Organization (WIPO), coinciding with the opening day of the annual session of the WIPO Assemblies. The exhibition, “HK Creativity – Intellectual Property in Hong Kong, China,” has been organized jointly by WIPO and the Government of the People’s Republic of China, in cooperation with the Government of the Hong Kong SAR.“

The exhibition is open to the public from October 4 to October 12, 2007. See the video message of Jacky Chan here.

Tagged creativity, Hong Kong, IP in Hong Kong, WIPO | Comments Off

Why the Mouse Had To Go Out Of Beijing Shijingshan Amusement Park

Posted on September 23, 2007 by Dr. Danny Friedmann

Remember the chutzpah of a slogan ‘Disney is too far’ of Beijing Shijingshan Amusement Park, which used the menagerie of Walt Disney and Japanese cartoon figures last May, read here. It remained silent about how the story continued. So IP Dragon was happy that Jack Bernstein, editor of the China IP Report, published by InterLingua Legal Publishing quoted the article ‘Beijing Shijingshan Amusement Park Stops Concerned Cartoon Performance on Alleged Disney Copyright Infringement Source’ Chinese language news paper Beijing Star Daily, May 11, 2007 in his monthly electronic newsletter summarizing Patent, Copyright and Trademark IP cases decided in the Chinese courts; IP-related news items appearing in the Chinese media; and, laws and policies relating to IP enacted by the Chinese government:

“Beijing Municipal Bureau of Copyright was informed that Beijing Shijingshan Amusement Park infringed upon the copyright of the the Walt Disney Corporation. The reporters learned yesterday that Shijingshan Amusement Park has removed the alleged infringing cartoon posters; stopped the alleged infringing cartoon character shows, exhibition and sales of cartoon character toys.

“WANG Yefei, vice director of the Copyright Bureau, expressed the concern of the local government and concerned departments upon receiving the complaint from a representative of Disney Corporation. The Copyright Bureau sent investigators to the spot right away. WANG said that Beijing Government always maintains a strong emphasis on IPR protection and has been promoting respect for copyright laws.

“In the mean time, Shijingshan Amusement Park has adopted emergency measures. The disputed cartoon posters were removed; cartoon character performances and sales of cartoon character toys halted. The person in charge of the Amusement Park said that the incident did not cause much damage, and they would attract tourists and visitors with new projects, such as the soon-to-be-completed “Adventure Island” and “Dream Island”.“

The question is whether the Beijing Shijingshan Amusement Park is adventurous enough to come with their own creations they have dreamed up and be able to refrain from Pirates of the Caribean-clones inhabiting their new Islands.

The great picture of “PI RAT E” can be ordered on a T-shirt at TRESTRIGES, see here.

Tagged Beijing's Shijingshan Amusement Park, China IP Report, copyright piracy, InterLingua Legal Publishing, Jack Bernstein, NCA, Walt Disney, Wang Yefei | Comments Off

Danwei Model Worker Award 2007

Posted on September 21, 2007 by Dr. Danny Friedmann

IP Dragon is proud and happy to have received the Danwei Model Worker Award in the category Law and Intellectual Property. Recipients of Danwei Model Worker awards are decided by Danwei editors.
Thank you very much!

Find all Danwei Model Worker Award recipients here.

Tagged Danwei, Danwei Model Worker Award | Comments Off

Scott Warren: Small Supply of Genuine Products and Nationalism Breed IP Infringements

Posted on September 21, 2007 by Dr. Danny Friedmann

The prolific Mr Jeremy Phillips of IP Kat reports about the Marques Conference in Porto (September 18-21), organised by the Association of European trade mark owners.

Mr Scott Warren, a lawyer with Kroll in Japan, which provides risk-mitigation and protective services, both preventative and remedial, in case of for example counterfeiting. Warren, who has previous experience working for Sega and X-Box, gave his perception of why the level of IP infringement in China is so high:

“[P]eople in search of the small quantity of genuine product that does exist had to rely on Hong Kong as a reliable location for non-fake products.
“Nationalism also had a major part to play: the prospect of a distant foreign IP owner losing out, rather than a local business, also plays a part in consumer attitudes.
“Availability of pirate product is crucial too: if it can be obtained discreetly through the internet, particularly where legitimate product is hard to get, the level of infringement will always be high.
“Finally, Scott dealt with the enforcement perspective: cooperation with Customs and the deterrent effect of a spell in a Chinese prison may be most efficacious in individual cases.”

Read Mr. Phillips article here.

Tagged deterrent, intelligence security and risk consultancy, Kroll, Scott Warren, Sega, X-Box | Comments Off

Bust of an Allegedly Pirated DVD Vendor in Hangzhou Night Market: Show or for Real?

Posted on September 13, 2007 by Dr. Danny Friedmann

A certain msmakara witnessed, recorded it and uploaded a video on YouTube of Hangzhou police who bust an alleged pirated DVD vendor in June 9, 2007. See here.

msmakara wrote as an introduction to the video:
“As I was walking through the market, I heard someone yell out something very loudly. After this, all of the vendors went crazy rushing to hide all of their apparently counterfeit goods. It was a little scary being in the middle of it all–it was a complete frenzy, and I could tell all the vendors were really scared. This video doesn’t quite capture the chaotic feeling of the market but they might give you a hint. At first I was surprised that the police allowed me to film them up close. But then I realized that they probably want to show Westerners that they are enforcing their IP laws.“

In the end of the video you see the following text:
“New Chinese law states that anyone found with 500 or more counterfeit a/v products can be imprisoned for up to 7 years and fined from one to 15 times the illegal earnings, or from 50 to 200 percent of the business turnover.“

Msmakara refers to the Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues in the Concrete Application of the Law in Handling Criminal Cases of Intellectual Property Infringement, that went into effect April 5, 2007.

Article 1: “where for profit-making purposes and without the permission of the copyright owner there is reproduction and distribution of a literary work, a musical, cinematographic, television, or video recording work, computer software or other works, and the total quantity of reproductions is 500 units or more, this shall constitute “other serious circumstances” pursuant tot Article 217 of the Criminal Code; where the total quantiy of reproductions is 2500 units or more, this shall constitute “other exceptionally serious circumstances” under Article 217 of the Criminal Code.”

According to Article 217 Criminal Law: “when there are other serious circumstances, the violator is to be sentenced to not more than three years of fixed-term imprisonment, criminal detention, and may in addition or exclusively be sentenced to a fine; when the amount of the illicit income is huge or when there are other particularly serious circumstances, he is to be sentenced to not less than three years and not more than seven years of fixed-term imprisonment and a fine.”

Source:TidyTent Intellectual Property Law Firm, see here.

With the last text sentence in the video Msmakara makes clear there is not room for the thought that this raid constituted an effective deterrent:
“Within minutes, the vendors in the market began selling their counterfeit products again.“

The question is what happens in reality with the DVD vendor. Will he be back selling his products again the next day or will he really be sanctioned. In other words, was it all a show for public foreign consumption? Is seems that in this case the police took action, but lukewarmly and the pirated DVD vendors felt relatively safe, because they are with many and the police probably only wanted single out one vendor of allegedly pirated DVDs to set an example.

Tagged copyright infringement, DVD, Hangzhou, judicial interpretation, market, PBS | 2 Comments

Dan Koeppel On China’s Product Cloning Industry

Posted on September 12, 2007 by Dr. Danny Friedmann

Mr. Dan Koeppel, journalist for the American Popular Science Magazine and writer of the book “To See Every Bird on Earth: A Father, a Son, and a Lifetime Obsession“, took up himself the role to explain to his readership the phenomenon of cloning products in China in a popular but scientific way.
Mr. Koeppel followed the tracks of iPhone cloners in Hong Kong, Beijing and online.
The result gives a great overview and is very readable, and includes two quotes from yours truly.

One of the astounding facts Koeppel describes is how fast a product such as the iPhone can be cloned. Conclusion: Selective market introductions are not a good idea in this time and age of globalisation and where the cloning industry is climbing the learning curve fast. Read Mr. Koeppel’s article here.

Tagged Dan Koeppel, iPhone, Popular Science Magazine | Comments Off

Shuanghuan, Not Known For It’s Originality, Has A Very Similar Logo To Ssangyong’s Old Logo

Posted on September 10, 2007 by Dr. Danny Friedmann

Dram Man, a blogging American IP lawyer in South Korea pointed out in a comment on the Noble versus Smart story that the Shuanghuan logo is very similar to that of the former Korean automobile manufacturer Ssangyong Motor Company, which is now owned for 51 percent by Shanghai Automotive Industry Corporation.

Thanks Dram Man.

Logo of Ssangyong (left); logo of Shuanghuan (right).

However, nowadays Ssangyong seems to use a new logo, see below:

Tagged brand, logo, Shuanghuan, Ssangyong | Comments Off

Eyewitness Reports Fake Olympic Merchandise Omnipresent in Beijing’s Tourist Area

Posted on September 10, 2007 by Dr. Danny Friedmann

Despite more positive reports in the past, see here and special regulations on the protection of products with the Olympic logo in 2002, see here, infringements of Olympic IPRs is widespread in Beijing’s tourist areas, according to eyewitness correspondent Mr Rene A. Henry in his article ‘ Special from Beijing: Fake Olympic Merchandise Big Seller in China’:

“Probably the most egregious was at the Great Wall. Here BOCOG [Beijing Olympic Committee for the Olympic Games IP Dragon] has two officially licensed stores selling their complete product lines. I saw vendors selling their fake products right outside the door of these licensed stores, which provide royalties and income for BOCOG.“

Read Mr Henry’s article for the Huntington News here.

Tagged Huntington News, merchandise, Olympic Games, Rene Henry | Comments Off

A Positive Voice In A World Of Music Piracy

Posted on September 10, 2007 by Dr. Danny Friedmann

Eric Zhu is quoted by BusinessWeeks’ messrs. Bruce Einhorn and Xiang Ji’s article Deaf To Music Piracy, saying that the law is to blame mostly for the disrespect for music copyrights in China.
However, IP Dragon begs to differ that it is mainly a law based problem. In my thesis ‘Paper Tiger or Roaring Dragon, China’s TRIPs implementations and enforcement‘ (pdf) I come to the conclusion that China’s IPR laws are by and large TRIPs-compliant (however TRIPs is intrinsically weak). The problem is mainly caused by extra-judicial factors.

If you listen real carefully (like the Chinese character on the right side you have to listen with your ear, eye and heart), you can hear also some positive voices (although quite hollow) in a world of music piracy. One such voice is coming from Jianguang Li, a partner with IDGVC Partners, part of Framingham (Mass.)-based International Data Group and one of the biggest venture-capital investors in China. Messrs. Einhorn and Xiang quote him saying that “more Chinese are learning to respect intellectual property online. Li’s fund has even invested in Chinese companies that charge for music and TV programming delivered over the Net. “Three years ago we definitely couldn’t make the model work,” he says.“

Read the BusinessWeek article here.

Tagged Bruce Einhorn, BusinessWeek, IDGVC, Xiang Ji | Comments Off

Neither Smart Nor Noble: Shuanghuan versus Daimler and BMW:

Posted on September 10, 2007 by Dr. Danny Friedmann

Thank you Mr Muamer Hodzic of BenzInsider for the permission to use this picture that compares the Shuanghua Noble (left) and Smart (right)

Shijiazhuang Shuanghuan Automobile Limited Company has stirred a lot of controvery with its model Noble, a mini car very similar to the Smart of Mercedes-Benz (part of Daimler) and with its model called CEO, a SUV very similar to BMW‘s X5 in the period preceding the Frankfurt Motor Show 2007 from September 13-23.

Mercedes have threatened Martin Motors, the European importer of Shuanghuan. However, Martin Motors assert that the cars will still go on sale as scheduled following a possible launch at next month’s Frankfurt Motor Show. The car is still awaiting EU safety and emission approval.

“The CEO of Martin Motors Guido Martinelli told reporters from Automotive News Europe that Mercedes’ legal team had already sent a letter of complaint to the car’s German importer, China Automobiles Deutschland. “After a preliminary hearing between our lawyers and those from our German distributor, we see no evidence in Mercedes claims. We plan to show the Noble at the IAA in Frankfurt,” he said.”

Motor Authority writes that the organiser of the Frankfurt Motor Show has warned that it may have to take action if the suspect car infringed intellectual property rights. If this has happened IP Dragon does not know yet. To be continued.

Read the article about it and see the pictures in Motor Authority here and BenzInsider here and judge for yourself. IP Kat’s article has a title that asserts that ‘It’s Smart to Copy-but is it legal?’, read here. In the short run cheap copycat cars may seem smart, although certainly not noble. In the long run it will hamper the competitiveness of Shuanghuan and their ability to develop their own designs and add value, the only way to survive in the global market place.

UPDATE1: IP Dragon called with Mr Mark Loojenga, coordinator of BMW Netherlands. According to Mr Loojenga who is quoting his colleague Mr Andreas Lampka, spokesman of BMW International that BMW is taking judicial steps against Shuanghuan. Whether or not the cars of Shuanghuan that allegedly infringe BMW’s intellectual property rights will be available at the Frankfurt Motor Show is not known to IP Dragon yet. To be continued.

UPDATE2: Today, September 11, I talked to the spokesperson for BMW International Mr Andreas Lampka. He confirmed that BMW is taking legal steps against the sale in Europe of the Shuanghuan CEO. Mr. Lampka said that BMW is not taking legal actions focused on getting rid the Shuanghuan CEO being showed at the Frankfurt Motor Show, because BMW is too busy with showing the new BMW models. See a picture of the Shuanghuan CEO at the Frankfurt Motor Show illustrating a NY Times article by Mark Landler here, who was still writing about DaimlerChrysler instead of Daimler as the company that owns Smart. See a picture of the BMW X5 here.

Tagged BMW, Daimler, Mercedes-Benz, Noble, Smart | 1 Comment

China Announces Own HD DVD Standard: CH-DVD

Posted on September 10, 2007 by Dr. Danny Friedmann

The Optical Memory National Engineering Research Center (OMNERC), a laboratory dedicated to optical disc research at Tsinghua University, announced yesterday the CH-DVD (China High Definition DVD). This standard is based on HD-DVD (high definition DVD) and is a big blow to the competitor standard Blue-Ray.

“The realization of CH-DVD was supported by the Chinese government, and will pave the way for the localization of blue-laser, high-definition DVD in China.” Take note: this is not Blue-Ray.

CH-DVD adopts copy protection technology that is supposed to prevent the spread of pirated copy.

Read the Business Wire article here.

Tagged Blue-Ray, CH-DVD, HD-DVD, standards, Tsinghua University | Comments Off

Thesis: Paper Tiger or Roaring Dragon, China’s TRIPs Implementations and Enforcement

Posted on September 6, 2007 by Dr. Danny Friedmann

Thesis by Danny Friedmann,
thesis advisor Professor P. Bernt Hugenholtz, Professor Peter K. Yu:
Paper Tiger or Roaring Dragon
China’s TRIPs Implementations and Enforcement

Abstract:
Thesis about whether China’s IPR enforcement laws are TRIPs compliant.

At least on paper most of China’s IPR procedural laws are compliant with specific TRIPs provisions. China’s IPR laws are certainly non-compliant to the more general provisions of TRIPs, due to incompatible extra-judicial factors. Nevertheless, no unequivocal preference for a WTO case against China can be given. Another option, although more complicated, to tackle China’s IPR enforcement challenges is to be preferred: to address China’s transparency, market access, uniform application of law, integrity and impartiality of the courts and expertise in and respect for IPR.

Read the thesis here (pdf). Your comments are very welcome at ipdragon at gmail dot com.

Tagged Danny Friedmann, enforcement, professor Hugenholtz, professor Peter K. Yu, thesis, TRIPS compliance | 5 Comments

Founder Sues Blizzard Over Font Copyright Infringements

Posted on August 20, 2007 by Dr. Danny Friedmann

Xinhua news reported about California-based Blizzard Entertainment (owned by Vivendi, a French media and telecom company) being sued by Chinese font producer Founder Electronicsat the Beijing Municipal Higher People’s Court, because of alleged font copyright infringements in its massively multiplayer online (mmo) games World of Warcraft.

“A statement from Founder Electronics said five fonts from its database were used without authorization in the popular on-line fantasygame World of Warcraft (WoW), resulting in losses of one billion yuan.“

Despite these alleged losses of one billion yuan, Founder Electronics claims 100 million yuan for lost earnings, because of non-authorised use of the fonts of Chinese characters.

Read the Xinhua article on the site of China.com in English here.

Tagged Beijing Municipal Higher People's Court, Blizzard Entertainment, Founder Electronics, Olympic Games, World of Warcraft | Comments Off

Patent Disputes Between China-South Korea-India versus the US Jeopardises Cleaner Coal Technology

Posted on August 14, 2007 by Dr. Danny Friedmann

Kathleen Kilanowski, an attorney focusing on IP among other things, for Dallas and New York based Scott & Scott, a law and technology services firm, wrote about international patent disputes that halt progress in FutureGen’s coal power plant technology. FutureGen Industrial Alliance is a public-private partnership to design, build, and operate the world’s first coal-fueled, near-zero emissions power plant, at an estimated net project cost of US $1.5 billion.

“China, South Korea, and India are keen on putting the patent to the technologies, software, and related know-how in public domain. The United States, however, is aiming to unilaterally take ownership. Businesses operating internationally should stay informed about the progress in this dispute, which may have implications for future international patent issues.“

The parties seem to have started a kind of mumbletypeg with patents. Not a pretty sight, because this technology is crucial for everybody. Read Ms Kilanowski’s article here.

Tagged environment, FutureGen, Kilanowski, patent dispute, Scott and Scott | Comments Off

IP in China; Never a Dull Moment

Posted on August 13, 2007 by Dr. Danny Friedmann

As the previous message pointed out, IP Dragon was occupied, so when I resumed blogging I immediately was confirmed by the facts and developments that this field of law is dynamic and fascinating, indeed:

America’s WTO case against China challenging deficiencies in IPR laws have reached a new status, the US Trade Representative announced today (August 13, 2007) in a press release: the request of a WTO panel, which will be considered by the WTO Dispute Settlement Body at its next meeting, scheduled August 31. The other WTO case, challenging unsufficient market access affecting copyright intensive industries, the United States has just completed supplemental consultations with China and is considering next steps. Read about the previous disastrous obligatory Sino-American WTO consultations, that lead to this new status of the dispute, here.

More news:

– Stan Abrams of China Hearsay, one of IP Dragon’s favourite blogs, has moved from Lehman, Lee & Xu in Beijing to DLA Piper Beijing. Success at your new law firm.

– Dan Harris and Steve Dickenson of ChinaLawBlog won the China Blog Awards in the category business and law blogs in the contest organised by Chinalyst. Covering all law of China, and regularly producing great blogs, winning the award is well deserved. Congratulations.

– IP Dragon, also nominated for Chinalyst’s China Blog Awards in the category business and law blogs, got to number 11 out of 30 nominees. Not too bad for a niche player specialising in the segment IP in China. Readers who voted for IP Dragon, thank you.

The other things relevant to IP in China that happened in this two weeks no-blogging interval are covered in my upcoming thesis (Paper Tiger or Roaring Dragon, China’s TRIPs Implementations and Enforcement’, which is evaluated at the moment for a grade, and will be published on this blog. They say patience is virtue.

Tagged article 31 TRIPs, China Hearsay, ChinaLawBlog, Chinalyst, thesis, WTO, WTO Dispute Settlement | Comments Off

Message of IP Dragon

Posted on August 10, 2007 by Dr. Danny Friedmann

IP Dragon was occupied and will be start blogging again on August 13th.

See you then.

Cheers,
IP Dragon

Tagged IP Dragon | Comments Off

“Unprecedented” China-FBI Crackdown On Software Piracy

Posted on July 25, 2007 by Dr. Danny Friedmann

In a press release, J. Stephen Tidwell, assistent director of the Los Angeles Federal Bureau of Investigation (FBI), informs the public about a joint crackdown on manufacturers of software piracy in Shanghai, Shenzhen and distributors in the US by China’s Ministry of Public Security, the Los Angeles Federal Bureau of Investigation and a liaison office of the FBI in Beijing netting 500 million US dollar/362 million euro, and arresting 25 people, including Ma Ke Pei, who is an alleged ringleader. The operation, which was codenamed Summer Solstice, referring to an annual astronomical event when the sun is at its highest point in the sky, started already in 2005 and targeted counterfeit software of Microsoft and Symantac.

Read the FBI’s press release here.
Read a FT article about it written by Mure Dickie here.

Update: Felix Salmon of Portfolio.com’s Market Movers, rightly poses the question about whether the statistic of 500 million US dollar worth of seized counterfeit software is valid. Read here.

Tagged crackdown, FBI, software, Summer Solstice | Comments Off

In Order To Clean Up China’s Environment Intellectual Property Rights Need To Be Protected

Posted on July 24, 2007 by Dr. Danny Friedmann

July 10, IP Dragon wrote that the IP protection in China is a big challenge, but peanuts compared to China’s environmental challenge and elaborated on the parallels between solving IP and the environmental problems, read more here.

Mr Matt Perkins of the online version of The Cornell Daily Sun, which have been an independent newspaper since 1880 written by the students of Cornell University in Ithaca, New York, wrote the article ‘Intellectual Property is Green’ explaining another relation between IP and the environment:

“[I]n order for American corporations to be there to capture that growing market, they will need to outsource some portion of their manufacturing to stay alive in the global market. But this can’t happen in an environment where IP is not protected. So – the take-away is: a critical component of solving China’s environmental issues (and protecting both the U.S.’s and China’s economic vitality), is greater IP enforcement.“

Read Mr Perkins’ article here.

Tagged Cornell, environment | Comments Off

New Harry Potter Books in China, Magic Or Rip-off?

Posted on July 24, 2007 by Dr. Danny Friedmann

Roy Berman of Mutant Frog Travelogue has a nice post on illegally published novel-length “fanfiction” of Harry Potter books and got a hold on these books and scanned the front pages of them. See more here.

UPDATE: Mr Howard W. French elaborates on the subject in the article ‘Chinese Market Awash in Fake Harry Potter Books’ for the NYTimes. Mr Potter distinguises the following forms of copyright infringments:

“There are the books, like the phony seventh novel, that masquerade as works written by Ms. Rowling.
There are the copies of the genuine items, in both English and Chinese, scanned, reprinted, bound and sold for a fraction of the authorized texts.
As in some other countries, there are the unauthorized translations of real Harry Potter books.
[A]s well as books published under the imprint of major Chinese publishing houses, about which the publishers themselves say they have no knowledge.
And there are the novels by budding Chinese writers hoping to piggyback on the success of the series — sometimes only to have their fake Potters copied by underground publishers who, naturally, pay them no royalties.”

Read Mr French’ article here.

Tagged copyright infringment, fanfiction, Harry Potter | Comments Off

Of IP’s Most Important Figures of 2007 Who is Most Relevant to IP in China?

Posted on July 23, 2007 by Dr. Danny Friedmann

The magazine Managing Intellectual Property announced IP’s Most Important Figures of 2007.

Of this group, who deserved this title because of its role regarding IP in China?

Obviously this includes Ms Wu Yi (China’s vice-premier and IP-negotiator) and Mr Tian Lipu (commissioner of China’s State Intellectual Property Organisation), but also Mr Jack Chang (senior IP counsel Asia GE and chairman of Quality Brand Protection Committee), Mr Dan Glickman (president Motion Picture Association of America and member of the China Copyright Alliance), Ms Nathalie Moullé-Berteaux, director of global IP at LVMH Moët Hennessy Louis Vuitton).

Congratulations to all. However, IP Dragon misses at a few names, especially Mr Joseph Simone of Baker & McKenzie for his role in the innovative landlords case, read more here.

Read Managing IP’s article here.

Tagged Baker and McKenzie, China Copyright Alliance, Dan Glickman, Jack Chang, Joseph Simone, landlords case, Louis Vuitton, LVMH, Managing IP, Nathalie Moullé-Berteaux, QBPC, SIPO, Tian Lipu, Wu Yi | Comments Off

China’s General Protecht Group Wins IPR Case in US

Posted on July 22, 2007 by Dr. Danny Friedmann

Li Yang of CCTV.com reports about several patent infringement disputes between US-based Leviton against Zhejiang Province-based General Protecht Group’s US subsidiary General Protecht Group Inc. The lawsuits were filed April 2004 and only June 10, 2007 a US court came up with a 28 page-ruling (according to IPR.Gov.Cn) in favour of the Chinese company, “accepting the claim that its products (No. 6246558 patent right on ground fault circuit interrupters IP Dragon) are beyond the scope of Leviton’s patents.“

After being a defendant in the case in the US, General Protecht Group sued Leviton in 2006 before the Guangzhou Intermediate People’s Court, which made a “decision of Property Preservation and Evidence Preservation in a patent infringement case between two electric companies. As a result, defendant Leviton Electric (Dongguan) Co Ltd has been prohibited from selling 50,000 products.“ Read more on the site of IPR.Gov.Cn here.

Li wrote that Tim Tingkang Xia, partner of Morris, Manning & Martin, LLP intellectual property group and a registered patent attorney said:“The win is certainly a triumph for Chinese businesses. In international IPR disputes, Chinese companies should learn to use the law to protect themselves.” Read more here.

According to China’s Ministry of Commerce the ruling was a so called Markman Order, or a claim construction report, where the judge determines what the claims mean as a matter of law, read more at the end of this article. General Protecht spent 200,000 US dollars on patent litigation, according to Li, so it is interesting to know whether it demanded and/or received damages.

Another Sino-American patent infringement lawsuit in the US is still pending. Read ‘Shenzhen Netac Sues Texas PTY Technologies for Patent Infringement’ here. I hope to get more information about this case soon.

It is great that these Chinese companies realise the value of protecting and enforcing their patents overseas. This might be a preview of things to come and can only be advantageous for the promotion of a culture of respect for IP within China, in a not too distant future.

Tagged General Protech Group, Leviton, Morris Manning and Martin, Netac, patent infringement | Comments Off

China’s Impact On Intellectual Property

Posted on July 18, 2007 by Dr. Danny Friedmann

The US Patent and Trademark Office (USPTO) is sponsoring a China-focused intellectual property “roadshow” July 23-24, 2007 in Philadephia.

Topics:

China’s laws and regulations that may affect how a business protects and enforces its intellectual property;
how best to protect business assets to avoid intellectual property problems in the first place;
how to recognize when an intellectual property asset has been infringed;
what to do if infringement occurs;
and what the U.S. government is doing to improve the intellectual property protection and enforcement environment in China.

Read more here. If you go, please blog about it or write ipdragon at gmail dot com a few lines about it. Thanks.

Head tip to Timonthy J. Maier of Post-Grant, read more here.

Tagged Post-Grant, seminar, USPTO | 1 Comment

Guge Case: Business Name vs Trademark Dispute Or Practical Problem?

Posted on July 18, 2007 by Dr. Danny Friedmann

On June 29, the Beijing Haidian District People’s Court accepted the case of Beijing Guge Science and Technology Ltd. versus Google’s subsidiary in China called Guge for disrupting business.

Tian Yunshan, company secretary for Beijing Guge Science and Technology said that he applied the use of the business name 北京谷歌科技有限公司 (Beijing Guge Science and Technology) in March 2006, and opened business on April 19, 2006, said the Beijing News according to Joel Martinsen of Danwei. Read more here.

Google filed as early as January 2006 trademark applications in a variety of areas to register 谷歌信息技术（中国）有限公司 (Gu Ge) with China’s Trademark Office of the State Administration for Industry and Commerce (SAIC), Google China said yesterday in an e-mail to Janet Oong of the Shanghai Daily. Read more here.

Beijing Guge Science and Technology asks Google to change its commercial name, because Google failed to be in a phone directory, so they Beijing Guge is flooded by people they think they are Google. Beijing Guge is not asking for damages.

Commercial names can be registered without a search for similar of same names, as is mandatory in case of a trademark search. It seems that Beijing Guge has registered its business name after Google registered its trademark. Actually, it actually could infringe Google’s trademark, if it operates in the same line of business.

IP Australia did a very interesting survey in 2005 on the Australian business community’s knowledge of the differences between business names and trademarks. The lack of awareness of the differences between the two and misconceptions were rather big. It would not be surprising if this were the case in other places too, including China. I paraphrase IP Australia: Business names are just business signifiers, not a form of entitlement or an active title that is owned exclusively by a business, nor does is confer rights upon and protects its owner. For this you need trademarks. Read more here.

In casu, the problem seems not too hard. Beijing Guge and Google and the phone directory 114 could come up with a practical solution, so Beijing Guge can continue to work. However, the question remains what does Beijing Guge really wants. And why did Tian decline to disclose the main businesses of the company?

Tagged Beijing Haidian Disctrict People's Court, Google, Guge, SAIC | 1 Comment

Protect Or Destroy: Pick Your Choice in Transformers’ IPR

Posted on July 17, 2007 by Dr. Danny Friedmann

Mr John Neff of the Autoblog is ranting against China’s car advertisments that use cars transforming into robots and vice versa. His article’s title is: “Chinese automakers copy everything else, why not the Transformers”, read more here.

One should distinguish the Transformers toys and cartoons of Hasbro and the movie the Transformers made by Michael Bay, who got the permission of the right holder to adapt the toys and cartoons into a special effects movie, from the idea of transforming cars into robots and vice versa. This idea cannot be protected, only the expression of this idea can.

Now in the case of a car advertisement, what kind of intellectual property rights are possibly infringed?

Let’s first watch the advertisment from China Lifan Car on YouTube, here.

The soundtrack might be copyrighted; and in this YouTube video one can see the mask of the Autobots, which is trademarked (I am not sure if this mask is part of the advertisement or whether it is added to the advertisement later); the skating robot looks very similar to the expression of the skating robot in the movie, this could be an infringement of copyright; if the designs of the robot in the advertisment is too similar in case the Transformers’ robots designs are registered, it could be a design rights infringement. What do you think?

The Great Wall Motor Company also uses cars that can change into robots and back. However, knocking-off this idea in advertisments and passing-off (misappropriating the reputation), is not done only by Chinese car companies. See on YouTube a skating Citroën here, and a dancing Yugo here. To show that you can use the idea of transformation from a car into a robot in a creative way, without getting associations with the Transformers, watch Nissan’s advertisement here.

Tagged advertiser, Autoblog, copyright infringement, Great Wall, Hasbr, Lifan, Transformers | Comments Off

Don’t Drink Beijing Tap Water, Water from the Cooler Filled With Beijing Tap Water; Drink Beer?

Posted on July 17, 2007 by Dr. Danny Friedmann

I can still remember the economics classes where free goods were to include water. This is certainly not the case in China any longer. Joel Martinsen of Danwei en Jia Fenyong reported already July 4, here, that drinkable water from the tab in Beijing is only possible in some limited areas. The problem is that the water comes drinkable from the water processing plant but is getting contaminated on its way to the end-user.

So enter the market opportunities for water bottlers and water coolers providers. However, a report in the Beijing Times (Chinese) on July 9, showed that more than half of all these water coolers are fake and not so refreshing as they might seem. Associated Press wrote an article about fake drinking water in Beijing:

“The water is either tap water or purified water from small suppliers put into the water jugs and sealed with bogus quality standard marks“, writes the Associated Press quoting the report in the Beijing Times.

Water bottlers and authorities marginalise the scale of this counterfeit problem. An employee of Wahaha, one of the water bottlers, whose products are counterfeited was quoted saying: “We have found very few fake Wahaha products.” And Wu Jianping of the Quality Supervision Inspection and Quarantine was quoted saying at a news conference: “Problems found with some individual cases cannot be interpreted to mean that the entire water industry has problems“.

Read the Associated Press article here.

Even if one cannot say all bottled water is fake, even if only a small part is counterfeited, it will destroy the trust in the whole product category. Because in China there is no alternative for bottled water, since tap water is undrinkable, this does affect the entire water industry. In the Middle Ages people in Europe could not drink water without getting sick, so they sticked to beer. Is China going to make a transition from water to beer?

Mr Brady Groscost, “a soft-IP-infatuated 3rd-year law student” at the Seattle University, pointed me to the Associated Press article. Thanks a lot.

Tagged bottled water, fake food, fake water, Quality Supervision Inspection and Quarantine, Wahaha | Comments Off

IP Dragon is China Blog Awards Nominee 2007

Posted on July 13, 2007 by Dr. Danny Friedmann

IP Dragon is honoured to be nominated for the Chinalyst.net’s China Blog Awards 2007.

If you like IP Dragon, you can vote for it here (until July 31).

IP Dragon is in good company of the following nominees; China Briefing Blog, Editor’s Journal – China Economic Review, China Busines Law Blog, China Talent (US), Talent in China, Silk Road International, 2point6billion, Chinese Negotiation, All Roads Lead To China, China Economics Blog, ChinaIR — Investor Relations for China Entrepreneurs, China Law Blog, China Travel Industry Blog, China Hearsay, Engaging China, China Breezes, China Net Investor, Chief Asia Inspector, Zhong Hua Rising, ChinaVentureNews, ChinaSolved, Diligence China and China Business Blog.

Of course, when you compare blogs that focus on China’s travel industry with those about dating with those about IP in China, you are comparing apples to peaches to oranges. But, it is a fun thing. So use your right to vote for kudos in the blogosphere.

Tagged China Blog Awards 2007 | Comments Off

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