J. Benjamin Bai and Kam W. Law (both lawyers at Jones Day wrote an interesting article about customs protection.
China promulgated its customs protection regulations in 1995.
December 2003, the regulations were revised to increase the power of the customs to investigate and reduce the burden of the IP owner to protect their rights.
November 2004, new penalty regulations became effective.

Chinese customs protection regulations apply to both import and export. There are two modes of Chinese customs protection:

• the passive mode in which the customs seizes infringing products upon application of the IP owner who supplies specific information. The customs has no authority to investigate infringement allegations and the IP owner has to resort to a court to decide infringement issues;
• the active mode in which an IP owner records its IP with the General Administrator of Customs of China in advance, and the customs proactively monitors shipments of goods for possible infringements. The customs have the authority to investigate infringement allegations.

Find the article here.

Dutch chemial DSM-daughter Dyneema starts a patent case against Chinese Hangzhou Pivot. According to DSM Hangzhou Pivot is infringing its Dyneema-fibre patent, used for armouring cockpit doors. DSM asks the Paris Court to order an injunction of the sale of fibre and rope by Hangzhou and a recall of all sold materials. Besides, DSM demands compensation damages.
During the state security exhibition Milipol 2005 in Paris, DSM took possession of the materials of Hangzhou Pivot, because they allegedly infringed DSM’s patent.

Source De Telegraaf/ANP-ANX

Tod Datz wrote, a great article called ‘Faked in China’ for the Chief Security Officer Online.

The article starts with the lost of innocence of Will-Burt Co. , a producer of night-scan telescoping masts. After a honeymoon week Shenzhen Superway, Will-Burt’s exclusive distributor for China had re-engineered the products and had began, sans gene, with large-scale counterfeiting.

After this cautionary tale, the article continues with some explanations for the rampant IP infringements in China. Then it enlightens readers about three different kinds of infringement operations: by legitimate factories, joint-ventures and underground facilities. Besides Datz gives some explanations of the dichotomy between national action and local inaction on the enforcement of IPR.

After these plausible explanations Datz comes up with 13 anti-counterfeiting strategies:

1. Do your homework
2. Travel to China
3. Budget smartly
4. Protect your IP
5. Consult with officials from your governement
6. Pursue criminal enforcement if needed
7. Look at alternative enforcement strategies
8. Have a notarized, legalized power of attorney available
9. Show your presence at the factory
10. Have key people sign a noncompete agreement
11. Chief Security Officers (CSO’s) can lead in retaining private investigators
12. Consider anticounterfeiting technologies for your products
13. Look to industry associations, such as the Quality Brands Protection Committee, for help

Read the article here.

Invest Korea, Korea Trade-Investment Promotion Agency’s foreign direct investment promotion arm, compared South Korea to China in seven areas for business conditions and six for living conditions.

On the frontpage of Invest Korea (no permanent link) IP Dragon found:
“The intellectual property rights environment is constantly improving in Korea considering that the United States Trade Representative (USTR) has moved Korea from the Priority Watch List to Watch List”, contrary to China.

“Gyu-Joon Hwang, head of the Investment Service Team of Invest KOREA noted “We need to focus our investment promotion strategies on Korea’s comparative superiority over competing nations such as China”.

Read an article by Yoo Soh-jung for the Korea Herald here.

The Taiwanese Mainland Affairs Council published an assessement of the social and economic risks (including legal risks as counterfeiting).

Read here.

Rouse IPEX issue No. 268 reported on a landmark litigation implying registrability of a colour-combination trade mark. We can now read in Rouse IPEX issue No. 270 that the Beijing No.1 Intermediate People’s Court has given its decision:

If they can control it there, they can control it anywhere, it’s up to you, China. US assistent secretary of commerce for market access and compliance David S. Bohigian, said that the United States will closely watch measures by the Chinese government to protect intellectual property in regard to the Olympics.

Read more here.

I’ll be back
IP Dragon is stretching the meaning of TGIF a bit and goes on holiday.
I’ll be back January 16th with lots of inspiration, I hope.

previous TGIF next

IBC is organising the IPR in China Conference, Monday 20th March 2006 in Café Royal, London. It is especially relevant for companies suffering from infringement or considering setting up operations in China.

Keynote Address:
Ian Harvey, Chairman of the Intellectual Property Institute

Special Presentation:
Paul Ranjard, Associé, Adamas, Beijing Chairman Intellectual Property Working Group, EU Chamber of Commerce China

Speakers from China with Direct Experience:
Connie Carnabuci, Partner, Freshfields Bruckhaus Deringer, Hong Kong
Matthew Laight, Head of Intellectual Property Group Asia, Bird & Bird, Beijing & Hong Kong
Douglas Clark, Partner, Lovells, Shanghai
Luke Minford, Partner, Rouse & Co International, Beijing
Ben Goodger, Executive, Willoughby & Partners

Disclaimer: IP Dragon is sponsored by IBC

During the fifth Trilateral Policy Dialogue Meeting between the Commissioners of SIPO, Japan Patent Office (JPO) and the Korean Intellectual Property Office (KIPO) that was held in Taej, South Korea on December 1st, 2005, Chinese commissioner Tian Lipu introduced some new developments:

• the situations of patent examination practices (see more here)
• measures enacted by the Chinese government to strengthen IP protection
• foundation of the Leading Group for National Intellectual Property Strategy Formulation of the P.R. China.

Besides, the three Commissioners exchanged ideas on cooperation.

IP Dragon is curious about the ‘Leading Group for National Intellectual Property Strategy Formulation’. Sounds like another institution that makes research on IP in China less transparant. Hopefully IP Dragon will be wrong.

Read here.

Columnist Philip Lin of Pacific Epoch is somewhat optimistic about brand protection in China now that the fakes are more concealed at Silk Street (Xiushui) mall after the Beijing operator and vendors got convicted and were ordered to pay 13.000 dollar in damages to Burberry, Chanel and other luxury brands (see more here).

Regarding the Starbucks victory Philip finds it particularly noteworthy that Shanghai Xingbake had to make a public apology public apology in the Xinmin Evening News in a land obsessed with not “losing face” (see more here).

Read Philip’s column here.

Randolph Hobson Guthrie III pleaded guilty of criminal copyright and trademark infringement, illegally importing infringing goods and money laundering before U.S. District Judge Louis Guirola Jr (Southern District of Mississippi), after being deported from China to the US. Gurthrie faces up to five years in prison and a fine of up to $250,000. He will be sentenced March 14. Read here.

However Gurthrie was not found by the US Immigration and Customs Enforcement (ICE) agents at a flea market with pirated DVD’s, as Robin Fitzgerald wrote. He was arrested in Shanghai on July 2, 2004 by Chinese policemen while being filmed by two cameramen of the Chinese reality TV show called Oriental Police. It was the culmination of Operation Spring, the first joint Chinese American effort to enforce intellectual property laws. The cooperation was between US Immigration and Customs Enforcement (ICE), the Economic Crime Investigation Department of the Chinese Ministry of Public Security, the Shanghai Public Security Bureau and Motion Pictures Association of America.

Joshua Davis wrote a great article about Guthrie’s downfall for Wired: The Decline & Fall of Randolph Hobson Guthrie III. Read here.

April 2005 Shanghai No. 2 Intermediate People’s Court convicted Guthrie and Abram Cody Thrush of distributing more than $840,000 worth of pirated motion picture DVDs on the Internet. Besides the two Americans, Wu Dong and Wu Shibiao, two Chinese accomplices in the illegal counterfeiting operation were convicted. Wu Dong received a jail term of one year and three months, and a fine of 10,000 RNB. Wu Shibiao received a fine of 30,000 RNB. See more here.

Chinese prosecutors said Guthrie has illegally sold some 180,000 pirated DVDs around the globe through eBay.com and a Russian based Web site. Guthrie and five others were arrested in 2004 and more than 210,000 counterfeit DVDs were seized and three warehouses containing the pirated material were destroyed. Guthrie was sentenced to 30 months in Chinese prison, fined approximately $60,000 and deportation upon the completion of his sentence.

However Guthrie was deported before serving any of his Chinese sentence, Department of Homeland Security officials said.

The renowned business magazine gave some IP related advice, although very short. The black box method was mentioned to prevent possible infringements: to produce component parts in multiple locations around the country and then assembling them in a single, low-tech factory. And besides, a recommendation was made for Hong Kong’s developed legal system, although more expensive than that of mainland China.

See one subheading before the end of the article, here.

Duncan Freeman wrote an article for the Asian Times about some indicative statistics of the European Commission on Chinese pirated goods seized in China. The numbers are from 2004, because although the article was published this week, Freeman wrote it already in November.

Counterfeit goods seized in the EU in 2004:
103 million items (from China and other places) in one year rise of 12%, 1,000% rise since 1998.

Source of the fake goods seized in the EU:
China 54%
Taiwan 7.5%
Hong Kong 3%

In 2004 China was the source of the following goods seized in the EU:
97% of toys and games
87% of electrical equipment
59% of clothing and accessories, (including 68% of accessories such as bags and sunglasses, and 54% of watches and jewelry).

In 2004 Taiwan was the source of the following goods seized in the EU:
41% of compact discs, games, software and digital video discs seized (leading source)

Growth (plus/minus) in seizures in the EU in 2004:
Computer equipment plus 899%
Electrical equipment plus 707%
Food and drink plus 197%
Clothing and accessories plus 102%.
Watches and jewelry minus 27%
CDs, games, software and DVDs minus 43%

Beyond the obvious pirated brands seized:
289,500 toothbrushes in Belgium
470,000 razor blades in Belgium
30,000 batteries seized in Greece
60,000 light bulbs seizedin Italy.

Read article here.

For an even more specified breakdown see here. Thanks for the link Duncan.

Paul Tan from Malysia raves and rants on the automobile industry:

1. Laibao SR-V vs. Honda CR-V
2. Geely Merie vs. old C-class and E-class Mercedes Benz
3. Chery QQ vs. Chevy Spark
4. GreatWall Motors vs. Toyota Hilux
5. Sing SUV vs. Nissan X-Trail
6. Hongda vs. Honda
See some of the results of China’s “MBA in IP piracy” alumni here.

Paul wrote that Geely ripped off Toyota’s logo. But I don’t agree. Look for your self: Toyota and Geely. Someone, under the name of ‘kkrit ilovewasa said’, pointed to the similaries between Toyota and Zhonghua. That’s another story.

William Heinze of IP/Updates wrote about the value of defensive patent filings here. As a case in point he used the Fiber Optic Designs drama. Now Heinze blogged about law professor (University of California, Berkeley) Rob Merges’ essay A Transactional View of Property Right (free download), in which the same theme is elaborated on in an illuminating way. Merges uses exclusively jurisprudence from the US, but it is (a fortiori) relevant for contracting in China too, as the Fiber Optic Designs case shows.

“At present, the annual copyright trade volume of the United States is more than 500 billion US dollars, and the figure in China is only 100 billion yuan (around 12 billion US dollars).“

Read more here.

1. TOEFL exam paper copyright
Beijing-based New Oriental Education Group infringed copyrights of the exam papers for the TOEFL-tests (Test of English as a Foreign Language) developed by the US-based Educational Testing Service. New Oriental was ordered to pay 10 million yuan (US$1.2 million), see here. But then it appealed and was ordered by the Beijing High People’s Court to pay ETS 3.7 million yuan (US$456,000). Read more here.

2. Montagut trademark
Beijing No 2 Intermediate People’s Court ruled that two Guangzhou-based companies had to pay compensation of 350,000 yuan (US$43,000) to the French firm Bonneterie Cevenole SARL for trademark infringement over the name Montagut. It was at least the third time that domestic courts ruled favorably for Bonneterie Cevenole SARL.

3. Dunhill trademark, see here
4. Patent for hot pressing and sealing technique for glass and metal
5. Digital library of Beijing Sursen Company
6. Trade secrets of a hundred-year old maker of Chinese ink
7. Beijing Liyafangzhou’s photo stickers software
8. Trademark of the Hongshi group
9. Pain killer for neck and waist diseases
10. Founder’s software for Chinese font

IP Dragon will try to find more info about the other cases.

Source: PeopleDaily. Found via Beijing International here.

Liu Li of the ChinaDaily wrote that the IPR Tribunal of the Beijing High People’s Court ruled that Beijing Wangshi Baili Commercial Company, a department store to pay 50,000 yuan (US$6,200) to luxury accessories producer Alfred Dunhill because of a trademark infringement.

Alfred Dunhill registered its trademark on luggage and briefcases in 1995 and acquired monopoly rights on accessory products in 1997. In 2004 the company learnt that a department store operated by Wangshi Baili sold wallets, ties and belts bearing the Dunhill trademark.

Read more here.

Starbucks Corp. comes out victorious in the trademark related law suit against Shanghai Xingbake Cafe that started December 2004 and ended on the last day of 2005. Shanghai No. 2 Intermediate People’s Court ruled that Xingbake has conducted illegal competition by using the name Xingbake 星巴克，the name Starbucks is using in China. Xing means star in Mandarin and the characters ba and ke sound together a bit like bucks.

Shanghai Xingbake Cafe has to pay 500,000 yuan (US$61,728) to Starbucks Corporation and a make a public apology in the Xinmin Evening News.

“According to the judges it is the first verdict that local courts have made on infringement of a famous international trademark since the revised Trademark Law was enacted on December 1, 2001.“ (revised on October 27th 2001)

The Amended Law explicitly provides protection for foreign famous marks. A mark copying, imitating or translating an unregistered foreign famous mark on identical or similar goods or services with likelihood to cause confusion will not be granted registration or will be prohibited from being used. Source: Wang & Wang. More here.

Xingbake used the name of Xingbake earlier than the Chinese trademark of Starbucks was registered. If this were the case, before December 1, 2001, the revised Trademark law is working retroactively. If the name was registered after December 1, 2001, it should not have been granted refistration.

“The Nanjing Road branch of Xingbake also used a green logo similar to that of Starbucks on its menus, receipts and name cards. It has a picture of a coffee cup in the circle, instead of a mermaid, however. “This will mislead consumers to think Xingbake is related to Starbucks and harm the reputation of the Starbucks trademark,” said Fu Qiangguo, the attorney for Starbucks .”

Read more here.

Super girls, American Idol knockoff with Chinese characteristics?

Baidu, China’s most popular search engine, has made a list of the hottest words of 2005. And they more or less have to do with intellectual property.

1. MP3; Baidu had to remove illegally uploaded mp3’s from it’s site. See more here.
2. Super Girls; immensely popular song contest tv show which allegedly is a knockoff of American Idols, broadcasted by Hunan Statellite TV
3. Fairy Tale; a Chinese lovesong
4. QQ; Tencent the company of the QQ instant message software has a legal conflict with Chery Automobile Co. ltd. that named it’s new car QQ. See more here.
5. Li Yuchun; is the winner of Super Girls

Is the format of Super Girls, which was a runaway success with 400 million viewers, a knockoff of American Idol as the NYT’s David Barboza wrote (see here) or is it inspired by this format as Frank Dai of Global Voices wrote (see here)? Or can you call it American Idol in Chinese, as the Hollywood Reporter wrote (see here).

Formats (detailled programme scripts) are works protected by copyright, as long as they have some form of originality. Ideas, such as that of a song contest, are not protected. Only the elaborate form in which the ideas have been moulded can be protected. This can be hard to proof.

China is a member of Union of the Berne Convention. Because of the territoriality principle of article 5 (2) and (3) of the Berne Convention, a maker of a work whose country of origin is another member of the Union, as would be the case if Fox tv, the right holder of American Idol, would sue Hunan TV, would be protected by the bundle of national laws of that country, in this case Copyright Law of the PRC.

March 2005 a regulation was issued concerning the establishment of copyright collective management organisations (CCMO) in China, see here. One of these called the Music Copyrights Society of China sued China International Culture& Arts Company(CICAC) that sponsored the Super Girls concerts, see here

What about the Chinese characteristics of Super Girls? It’s not typical Chinese at all. Watch NYT multimedia presentation nattated by David Barazon here.

previous TGIF next

UPDATE: September 21, 2011: SARFT “Super Girl is corrupting China’s youth“.

Artists from all over the world saw their copyrighted works infringed by Beijing based arch-world.cn. This company captured without permission digital copies of copyrighted paintings of more than 2,800 artists in order to duplicate the works on demand.
Thanks to an initiative of The Painter’s Keys, an online community of artists, the digital copies of the works of living artist were removed from the site. This only happened after a Painter’s Key newsletter that goes to 135.000 artists to protest by email to the Chinese embassies in the US, UK, Australia and Canada. See here the Painter’s Key protest site: International Theft Arch-world information. The artists are concerned about the copyrighted works of right holders that are still on the arch-world.cn site. They demand to know how many copies of their works were made and want a reasonable compensation.

Miro Cernetig of the Vancouver Sun wrote that the Canadian Embassy in Beijing sent a diplomatic letter of protest to the Chinese Ministry of Commerce, Trading and Law Department. It is not clear if the Chinese government intervened. Read more here.

Paintings are works (article 3 (4) that include fine arts; the term copyright includes the right of reproduction, that is, the right to produce one or more copies of a work by printing, photocopying, lithographing, making a sound recording or video recording, duplicating a recording, or duplicating a photographic work or by any other means (article 10 (5).
Except where otherwise provided in this law, the copyright in a work shall belong to its author. The author of a work is the citizen who has created the work (article 11).
Where the copyright in a work belongs to a citizen, the right of exploitation and the rights under Article 10, paragraphs (5) to (17), of this Law in respect of the work shall, after his death, during the term of protection provided for in this Law, be transferred in accordance with the provisions of the Inheritance Law (article 19).
The term of the copyright is lifetime plus fifty years (article 21).

With a shrinking home market Hollywood is looking at foreign markets such as China to produce and sell their movies. China has great potential, but there are some problems too.

Film producers that want to show their movie in China should take into account the demands of the Chinese governement about the content. Bruce Wallace of the LA Times wrote about this:

“No sex. No religion. Nothing to do with the occult. Nothing that jeopardizes public morality or portrays criminal behavior. But perhaps the most crippling obstacle remains China’s rampant piracy. The frenetic trade in pirated DVDs operates openly on Shanghai street corners, where Hollywood’s blockbusters and prime-time TV shows are sold from rickety stalls and suitcases, all for less than a dollar. It leaves China with a market — or at least a legitimate market — about the size of Peru. What studio executive is going to spend time and energy banging his head against the Chinese politicians and bureaucrats for a market the size of Peru?

Read more here.

“While multinationals are reluctant to publicly discuss the proposed law, in private many executives say previous drafts left too much leeway for taking away intellectual property set tests for mergers and acquisitions that were too stringent.”

Read more here.

Applications 2004

588,000 trademark applications

Applications 2005
130,000 invention patents applications (50 % from multinationals headquartered in developed countries; patent applications from American enterprises will exceed 20,000)

Patent applications of companies from developed countries
93 % in electronic transmission
91 % of mobile telecommunications
90% audio and visual technologies
85 % semiconductors
69 % pharmaceuticals
60 % computing technologies

Percentage of Inventions

18 % of patent applications from China are for inventions (see here)
0.03 % of Chinese enterprises own key technologies with intellectual property

About 99 % of Chinese enterprises have never applied for patents
60 % do not have their own trademarks.
China is ranked third in foreign trade, patented high technologies contribute only 2 percent of total foreign trade

Source Shanghai Daily

SIPO is preparing the third round of revisions of the Patent Law of the PRC. The revisions might include improvement of the current examination mechanism for utility model and design patent applications. SIPO also advised local governments to channel more incentives to invention patents rather than utility models and designs, because the latter two lack inventiveness (see below article 22 of the Patent Law of the PRC).

In China there are three different patentable objects of law:
Article 2 of the Patent Law of the PRC: For the purpose of this Law, “inventions” refer to inventions, utility models and designs.

SIPO does not carry out detailed examinations on applications for utility model and design patents in order to save costs. This could lead to junk patents, according to Tian Lipu commissioner of the State Intellectual Property Office.

Local governement incentives encourage patent applications based on existing technologies and designs. However, according to Tian utility model and design patents could improve intellectual property awareness.

Read here.

Article 22 of the Patent Law of the PRC:
Any invention or utility model for which a patent right may be granted must possess the characteristics of novelty, inventiveness and usefulness.

Novelty means that, before the filing date of the application, no identical invention or utility model has been publicly disclosed in domestic or foreign publications or has been publicly used or made known to the public by any other means in the country, nor has any other person previously filed with the Patent Office an application describing an identical invention or utility model that was recorded in patent application documents published after the said date of filing.

Inventiveness means that, compared with the technology existing before the filing date of the application, the invention has prominent and substantive distinguishing features and represents a marked improvement, or the utility model possesses substantive distinguishing features and represents an improvement.

Usefulness means that the invention or utility model can be made or used and can produce positive results.

“Maturity and intellectual property (IP) negotiations are considered key factors in China’s 3G development. Most profits in China’s telecom market flow into the overseas giants due to China’s lack of patents in the current technology, which is considered the crucial reason for Beijing to push TD-SCDMA.”

Read more here.

Holthuis International Lawyers (HIL) obtained approval from the Chinese Ministry of Justice to open an office in Shanghai. The firm is the only one in the Netherlands that has been awarded such approval. However, HIL will continue its cooperation with its China partner firm, Shanghai law firm Fangda Partners, PRC Lawyers.

Read more here.

ChinaDaily recently published the article titled: ‘The IPR Year’.

This article gives an overview of some of the (alleged) IP infringement cases in China:

Intel vs. Shenzhen Dongjin
Hisense Group vs. Bosch-Siemens
Wuxi Multimedia vs 3C Group (Sony, Philips, Pioneer)
Unilin Beheer B.V. of the Netherlands, Flooring Industries Ltd of Ireland, and US firm Unilin Flooring vs. 30 companies (16 of which are from china).
Universal, EMI, Warner, Sony BMG and their local subsidiaries, Cinepoly, Go East and Gold Label vs. Baidu
GM Daewoo auto technology company (GMDAT) and GM vs. Chery (Shanghai Automotive Industry Corp. and Wuling Motor Corp)
Tencent vs. Chery

Read more here.

A channel run by a state-owned coal company in the city of Chifeng (Inner-Mongolia) with an audience of 30,000 viewers sliced Chen Kaige’s new movie The Promise into a 16 episode series, selling each episode for 2 yuan (0,25 dollar) without any authorisation of the right holder.

Read here.

China’s 58o million dollar online games market is changing its business model, because of rampant intellectual property infringement. Instead of collecting a monthly subscribtion fee for massive multi-player games, they are going to focus on selling in-game items.

“DFC Intelligence’s Alexis Madrigal said an increasing number of MMOs in China will become free to gamers next year, while the companies rely on sales of in-game items to bring in profits.“

“Chinese game companies are some of the first to get wise to the switch in sales. It’s also smart to run a service off of in-game sales, when piracy of games in China is so prevalent. Chinese game companies find it hard to make money off of the pure-play of games because pirates are always one step ahead.”

Read more here.

The NASDAQ-listed Tramford Internationa Inc. is a Hong Kong based technology company with their main portfolio business based in the People’s Republic of China.

Future Solution’ s Development Inc. , the newly acquired subsidiary of the Tramford has developed the bamboo flavone application in anti-prostate disease drug which has been approved by China’s State Intellectual Property Organisation.

Read here.

If you think about China and cars it is easy to see doom scenario’s. If every Chinese wants a car that surely would result in environmental disaster. But according to the Xinhua article, China’s car producers have realised that they cannot beat producers of cars with internal combustion engines. So now their strategy is electrical cars etc. To shield their technology intellectual property becomes of critical importance to the success of China’s car producers.

In Xinhua it said:
“Electrically-operated cars might change the whole picture, which is China’s hope to catch up with the world’s advanced economies. China shipped 106 electric cars to the United States by December. Lagging far behind from motor vehicles powered by internal combustion engines, China is almost on a par with the world’s advanced nations in developing electrically-powered cars, which include battery-powered autos and fuel cell autos.
“Independent development, the possession of intellectual property and technological innovation, and mass production will be crucial for Chinese automobile makers to make breakthroughs,” Han (Yuan a manufacturing engineer) said. “Considering energy and the environment,” he said, “electric cars are the best solution.“

Read article here.

When will companies such as Geely, Chery, Chang’an, Hafei, and Great Wall start sueing American, European and Japanese companies for alleged IP infringements?

The Happy Messenger
In the ShanghaiDaily I found an article about Qingyuan Electric Vehicle Co Ltd of Tianjin. This is a good example of a producer and owner of all intellectual property rights of multiple purpose electrical cars, which seems to be the child of the 863 programme initiated by the late Deng Xiaoping and followed-up by three successive 5-year plans. Now there is a rise of sales in the US of this electrical car. So the long-term strategy is finally bearing fruit. The name of the car is suitable indeed: the Happy Messenger.

Read here.

Colquba versus Colgate

Joel Martinsen of Danwei (means ‘unit’ in Mandarin) wrote a funny piece about Colquba, a knockoff of Colgate. Of course not funny at all for Colgate. And besides there can be serious health problems too.

“The “have teeth campaign” is certainly commendable, but I’m hesitant to try the stuff out just in case I’m one of the rare cases where the “have teeth” power of Colquba fails.“

Read here.

What is trademark holder Colgate-Palmolive doing against it?

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Burns & Levinson will merge with Perkins to boost its intellectual property practise.
“The new firm plans to open a part-time office in Shanghai early next year to bolster its work in China”

Read more here.

On December 20th, Beijing No. 2 Intermediate Court ruled that Silk Alley Haosen Co., the management firm of the (in)famous shopping mall of Beijing for knockoff products, had not acted in time to stop the sales of bogus merchandise by five vendors, said the plaintiffs’ lawyer Wang Yadong of Lovells Beijing. The court ordered Haosen and five Silk Alley vendors to pay 200,000 yuan ($24,764) in damages

The Beijing News said the judge called his ruling China’s first against the operator of a shopping center.

“This is a significant victory,” said Douglas Clark, a Shanghai-based intellectual property rights attorney and partner in the Lovells business law firm. “Generally, landlords have been protected by doctrines of law that do not make them responsible for the acts of their tenants.”

“The importance of this case is that a landlord in a notorious counterfeiting black spot has been found liable for the sale of counterfeits in a tenant’s premises,” Clark said. “This should send a message to all landlords in China that they cannot blindly lease their premises to tenants without taking responsibility for their actions.”

The article ends ominously: “Fake goods are still being sold at Silk Alley under the plaintiffs’ names, Wang said.”

Read more here

Patent lawyer Lawrence Ebert of IPBiz blogged about Fiber Optic Designs’ IP adventure in China.

“To show prior invention, Fiber Optics submitted a copy of the Trenton Times from December 2001. The copy had to be notarized by a notary public. In turn, a state judge had to affirm the status of the notary. In turn, a state agency had to affirm the status of the state judge. In turn, the US State Department had to affirm the status of the state agency. Then, the State Department had to submit all of the above the Chinese embassy. This process cost $50,000.“

Read more here and here.

See article here.

China recognised the ‘recognition of foreign well-known marks’ since 2004 (See article 6bis of the Paris Convention). Finally, China has been a signatory of the Paris Convention and this treaty went into force in China already on March 19, 1985.
The Paris Convention started with the recognition of foreign well-known marks, to prevent that these well known marks had to be registered in every country in order to be protected. Without these well-known marks a company in a country where let’s say Coca-Cola did not register could start to use Coca-Cola as a trademark.

Another sign of progress in the field of trademark could be that in June 2005, the Trademark Administration circulated draft amendments to its Regulation on the timely Transfer of Suspected Criminal Cases in the Enforcement of Administrative Law, which must facilitate effective trademark enforcement and protection. Source: USTR 2005 report.

Besides the law, there is technology to fight against counterfeiting. Radio Frequency Identification tags are brought into action to prevent false tickets at the Tennis Master Cup in Shanghai. However, necessity being the mother of invention, a new problem was that when people entered with genuine tickets, some of them tried to smuggle them out again to reuse them. But this could easily be solved by the prerequisite of visitors to hand in their tickets.
Read Laurie Sullivan’s article here.

After a public hearing the National Copyright Administration (NCA) of China and the Ministry of Information Industry announced in May 2005 that the Administrative Measures on Internet Copyright Protection will be implemented. This means in short that ISP’s have a responsibility to remove pirated works upon receipt of a complaint from a right holder. If the ISP does not comply they face administrative penalties ranging from confiscation of illegal gains of up to 100.000 RMB (source USTR 2005 report) Professor Zheng Chengsi, member of the drafting committee of the Chinese Copyright Law and many other laws, stressed the imporance of enforcement in the online world: “If the government won’t take measures to fend off Internet piracies, its efforts to fight piracy in tangible markets will fail. More dealers of pirated goods will switch to the Internet because of its lax controls,” said Zheng Chengsi, director of the IPR Center of the Chinese Academy of Social Sciences.”

Yan Xiaohong, deputy director of NCA said, according to this very informative article by the Internet Society of China, that the State Councel has launced a draft for Policies of Protecting Internet Information Spreading Rights that will have a stronger legal effect. IP Dragon is researching what these policies entail and why their effect is stronger.

Besides, there is the draft Regulations on the Protection of Copyright Over Information Networks that has circulated for public comment. The final version is expected to be issued in 2006. The aforementioned Regulations could be seen as a step toward the accession to the WIPO internet-related treaties to the National People’s Congress by June 2006.

What internet-related treaties are we talking about? WIPO Copyrights Treaty and WIPO Performances and Phonograms Treaty, read here.

March 29th–30 2006, Creative Commons China will be launched.

The Creative Commons license system is being adapted (‘ported’ in CC-speak) to the Chinese jurisdiction. See here (in English translation) how they are doing that.

More links about Creative Commons China here.

ChinaDaily journalist Liu Li wrote an article about Liu Xiang, China’s famous Olympic 110-metre hurdles champion.

The Beijing No 1 Intermediate People’s Court overruled an earlier verdict by the Beijing Haidian District People’s Court and ordered Life Style, the magazine that published her pictures without her authorisation, to pay her 20,000 yuan (US$2,500) damages and publish an apology within a month.

Read the article here.

On Chinese Patchwriting (TGIF)

Chris Shei (University of Wales Swansea) wrote an interesting paper about plagiarism and the view of patchwriting by Chinese students studying in a UK higher education institution. Chinese culture emphasises a substantial period of imitating before creativity can be contemplated.

Read more here.

Below you will find an interesting fragment from Joel Bloch (Ohio State University) reviewing ‘Standing in the shadow of giants: Plagiarists, authors, collaborators’, from Rebecca Moore Howard in 1999.

“The issue of plagiarism among Chinese students has long been a controversial issue, both in terms of whether it is culturally bound and when and where it should be a concern. Unfortunately, Howard draws upon a number of sources that have oversimplified the issue, resulting in what I feel is a misrepresentation of how Chinese rhetoric actually view both intellectual property and plagiarism. However, patchwriting in Chinese rhetoric often involves texts that are clearly identifiable to every reader, so there is no question as to who the author is. When a Chinese writer cites Confucius, everyone knows it is Confucius. This situation is not necessarily the same as what Howard considers patchwriting in the West. Moreover, our research shows examples of how patchwriting has gotten Chinese writers into the same trouble as it does Western writers. We showed instances where Chinese writers viewed patchwriting themselves as an extremely negative form; students using patchwriting as a strategy to avoid saying anything controversial, which in certain historical periods was an extremely judicious rhetorical strategy. In these cases, the writers felt that this strategy was of little value except to avoid possible trouble.“

Read more here.

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Countries such as China, India and Brazil, want the WTO to set up a system to control how corporations, scientists and others in the developed world use of a nation’s native plants, animals and centuries-old knowledge to make pharmaceuticals, the Wall Street Journal said.

“There is growing concern in these nations that the next blockbuster drug might be derived from a plant or animal species in their jungles through so-called “biopiracy” for which they may not get any financial benefit.“

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On 28 November 2005, Coca-Cola brought an action in the Beijing No. 1 Intermediate People’s Court, asking the Court to overrule TRAB’s decision. The main feature of the Fanta bottle is the design of densely-distributed prism stripes surrounding the lower part of the bottle. Coca-Cola indicated that such shape is distinctive of “Fanta” soft drinks and has come to be associated with Fanta in the mind of the public.

“Its distinctiveness has been recognised in many other countries by registration as a three-dimensional trade mark.

To prove the design’s originality, Coca-Cola’s agent demonstrated 10 other drink bottles at trial.
He noted that drink companies compete fiercely with each other and put a lot effort into the design of their drink bottles. TRAB responded, through its attorney, by arguing that the design of the “Fanta” soft drink bottle is basically simple and lacks uniqueness. It is difficult to distinguish the Fanta bottle from other bottles on the market. The prism stripes stressed by Coca Cola are widely-used as a means of preventing bottles from slipping. In summary, the design of the Fanta bottle is devoid of originality.“

The decision of the Court is pending.

Source: Rouse & Co. International China IP Express

Danish company Aktieselskabet AF sued eBay Shanghai because it operated the servers of sites where products were offered that allegedly infringed trade marks of the plaintiff. Beijing no. 2 Intermediate People’s court accepted jurisdiction, but defendant eBay challenged this on the ground that their servers were located in Shanghai.

“The trade marks in question were licensed by the Plaintiff’s subsidiary company, Bestseller Clothing (Tianjin) Ltd (Bestseller). At the beginning of 2004, Bestseller discovered a lot of female apparel bearing the trade marks “ONLY” and “VEROMODA”, and male apparel bearing the trade mark “JACK&JONES”, being sold on www.ebay.com.cn and www.eachnet.com without authorisation.

The infringing goods were being sold at less than half the price of genuine products. It also found 73 ebay shops with names such as “ONLY Shop”, “only for ONLY products” and “only for VEROMODA” on the Defendants’ websites.The Plaintiff argued that as the Defendants were allowing infringing products to be offered for sale on their sites in the context of such trading information, and actual sales had occurred, the Defendants had constituted trade mark infringement. The Plaintiff sought compensation of RMB 200,000 (approximately US$ 24,200).

Plaintiff’s attorney, Mr Yang, said, that the Plaintiff had brought the case not for compensation, but to demonstrate to Ebay Internet Services Providing (Shanghai) Co., Ltd. and Shanghai Ebay Trading Co., Ltd (Ebay) that it should not allow infringing sales to take place on its websites. The Defendants’ attorney, Mr Gao Jun, argued that the Defendants were merely providing a trading service. They did not take part in the actual business dealings, there were not, therefore, infringing.

In September, an individual was brought to Qingdao Intermediate People’s Court for setting up an ebay shop named “Ku Mi Li” and selling counterfeit products on the eBay website. Although . were sued for trade mark infringement, the Court ruled that the individual had engaged in trade mark infringement, but the Ebay operators had not as they were not party to the actual business dealings.“

Source: Rouse & Co. Internatonal China IP Express

The government of the capital of Guangdong province (Canton) Guangzhou, plans to launch a copyright protection system in karaoke parlors, according to the Guangzhou Daily.

“The system will track which songs are played in karaoke parlors and will automatically update using China’s proprietary digital decoding system DRA. Karaoke parlors will be charged for each time a song is played. A charging standard has not been set, though the report said that the government is leaning towards a one Yuan fee for each time a song is played. The report said the system will complete a trial in 2006 and will help eliminate piracy at karaoke parlors by 2010.”

Source: Pacific Epoch

RegeneRx Biopharmaceuticals, Inc. has received notification that the State Intellectual Property Office of the People’s Republic of China (SIPO) has allowed its first patent application for the Company’s Thymosin beta 4 (TB4), wound healing technology platform.

RegeneRx president and CEO J.J. Finkelstein: “We are very pleased to be advancing our intellectual property portfolio in this important market. China, of course, represents one of the largest and fastest growing pharmaceutical markets in the world; we look forward to receiving additional patents in China in the future and addressing a number of potential opportunities in that market.”

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December 11th, the USTR published a report about China’s WTO compliance, including China’s adherence to TRIPS. Pages 63 to 73 of the report cover IPR protection:

“Overal, China’s efforts to bring its framework of laws, regulations and implementing rules into compliance with the TRIPS Agreement have been largely satisfactory, although some improvements, particularly in rapidly emerging areas such as Internet copyright protection, are still needed.

Enforcement of these measures, however, remained largely ineffective in 2005 giving rise to increasingly strong concerns amons US industry.

…many US companies, particularly in the media and entertainment, see their copied products migrate into mainland markets even while the legitimate products remains barred by regulation.

Sustained involvement by China’s learders is critical if China is to deliver on the commitments that it made at the April 2005 and July 2005 JCCT meetings, including China’s core commitment to significantly reduce IPR infringement levels across the country.“

Read the report here.