Todd Mayover has an interesting site: IP Counsel blog. He blogged about a discussion of Lindsay Esler and Annie Tsoi of Law firm Deacons about intellectual property in China. Gives a good overview of the situation.

Read more here.

What is happening at the WTO? Yesterday to my knowledge nothing IP relevant happened at the WTO. If I am wrong please inform me ipdragon (at) gmail.com

However, I found a nice summary at Yale Global where Dr. Susan Ariel Aaronson and Jamie M. Zimmerman summarised what we are waiting for:

“But now both Chinese and foreign intellectual property owners can benefit from the WTO’s dispute settlement system. This month the United States, Japanese, and Swiss governments filed a formal request with the WTO for information from China on the country’s IPR enforcement efforts. Based on these findings, the US and its allies may challenge Chinese enforcement of IPR under binding WTO dispute settlement mechanisms. If they are successful in that dispute, China would have to change its ways or risk retaliation as well as lower levels of foreign investment.”

Read more here.

During an industry convention in Beijing, Motion Picture Assn. of America chairman and CEO Dan Glickman said:

“In 2008, China will be at the center of the world stage, hosting the 29th Olympic Games. It will be a terrific moment of pride for the country,” he said according to the speech. “And so I would like to plant this challenge: by 2008, to have more legal than illegal DVDs sold in China, to have more American movies in Chinese theaters and to have more Chinese movies in American theaters.”

Read more here.

The tone of voice of Glickman has become much friendlier. This May is supposed to have said:

“We said [to the Chinese] the U.S. Congress…is becoming increasingly agitated about piracy. … We said they need to do something or there would be trade-related problems. …There’s consequences if they don’t get it down.”
Read more here.

What do you do if you are a Chinese wireless service provider such as Kongzhong in cut throat competition? You try to add more value to your service such as an upgraded answering tone that used to be tuu…., into the so called color ring back tone (CRBT). This is a bit of a misnomer, because songs, personalized monologues, jokes can replace the answering tone. Read more about this phenomenon, the latest craze and Asian trend, that is called in Chinese Cai Ling here.

Now the Nasdaq listed Kongzhong took a few nice songs such as ‘Two Butterflies, Bei Shui Quing Ge and Chui Yanjing as color ring back tone. The people of music company Bird Man were surprised when they heard their music as Cai Ling without having authorised Kongzhong and sued them.

Beijing Haidian District People’s Court ruled that Kongzhong infringed Bird Man’s copyright by providing CRBT for the songs. Kongzhong was fined 320,000 Yuan.

Source: Pacific Epoch

The IP summit of the year is about to start. The highest decision-making body of the WTO is meeting tomorrow in Hong Kong to talk about free trade and intellectual property. There will be a TRIPS review.

“Non-violation complaints are possible for goods and services (under GATT for goods and market-opening commitments in services). However, for the time being, members have agreed not to use them under the TRIPS Agreement. Under Article 64.2 this “moratorium” (i.e. the agreement not to use TRIPS non-violation cases) was to last for the first five years of the WTO (i.e. 1995–99). It has been extended since then.

At the same time, the TRIPS Council has discussed whether non-violation complaints should be allowed in intellectual property, and if so, to what extent and how (“scope and modalities”) they could be brought to the WTO’s dispute settlement procedures.

At least two countries (the US and Switzerland) say non-violation cases should be allowed in order to discourage members from engaging in “creative legislative activity” that would allow them to get around their TRIPS commitments. Most would like to see the moratorium continued or made permanent. Some have suggested additional safeguards.“

This is relevant in the case of IP enforcement in China.

Read more here and here

The impact of WTO rules and international practices is felt strongly in enterprises’ internal management, wrote Liu Weiling for the DailyChina.

“Intellectual property rights (IPR), for example, was a strange concept for many domestic companies several years ago. But the past four years have witnessed a growing number of Chinese firms, both State-owned and privately-owned, setting up specialized IPR management departments.”

Hong Kong Standard’s Ni Ching-Ching wrote:

“When some people see us doing things like brand protection and movies, they think there’s something inappropriate,” Shi said. “But what we are doing is in keeping with tradition. Monks from every dynasty had to adapt to the changes of society. We are monks. But we are also citizens.”

Read more here

“To further defend its reputation and interests, the temple has set up a firm, the Henan Shaolin Temple Industrial Development Ltd. Co., to protect and administer the intangible assets of Shaolin Temple, to safeguard the legitimate rights of the temple and to investigate cases of unauthorized use of the temple’s name in commercial activities, said (Shi) Yongxin,“ abbot of the temple.

Read the article ‘Shaolin Monks that Fight to Protect the Temple’s Reputation’ by law firm Lehman, Lee & Xu here.

Read here the BSA/IDC study. It includes a 32 page whitepaper. Here is the link to a one-page summary for China.

The study was well picked up by the media: MercuryNews, InternetNews wrote articles about it.

Donald Clark, of the Chinese Law Professor Blog, posted about condoms that are marketed under the brandnames Clinton and Monica, without consulting Clinton or Monica. Read more here.

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Last month Yu, Bo of About Intellectual Property made a brief summary of the Chinese search engine case based on news reports about the Haidian District Court of Beijing, not from the court’s original decision. Great work. Read here.

The Guardian’s Jonathan Watts wrote an interesting article about China’s biggest search engine and its ambitious CEO Robin Li.

“Critics say these are minor adjustments to a design and business model that is largely a copy of Google. The reason for Baidu’s success, they argue, is that it collaborates with the communist authorities on censoring sensitive political information more than its rivals do and is less stringent in blocking access to sites that offer pirate film and music downloads. Look for the name of dissident writer Lu Xiaobo or references to the Tiananmen Square massacre on Baidu and no information appears. But search for Radiohead or Britney Spears and Baidu offers a specific MP3 channel that directs you towards pirate downloads of every song the band and singer have ever made. The record company EMI successfully sued Baidu in Beijing this week over this MP3 service – which accounts for 20% of Baidu’s traffic – but Li said his company would appeal.”

Read more here.

“The approval, by WTO headquarters in Geneva Tuesday for effecting changes to the intellectual property agreement, makes permanent a decision on patents and public health originally adopted in 2003. The latest decision comes a week after WTO members agreed to extend the transition period for least developed countries, allowing them time until July 1, 2013, to provide protection for trademarks, copyright, patents and other IPR issues under the agreement. Least developed countries had already been given time until 2016 to protect pharmaceutical patents.

The deadline for least-developed countries to protect pharmaceutical patents was revised in June 2002. This was followed by the waiver in August 2003, which itself called for the eventual amendment.

The decision directly transforms the Aug 30, 2003, ‘waiver’ into a permanent amendment of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS),” the statement said.

Article 31(f) of the TRIPS Agreement says that production under compulsory licensing must be predominantly for the domestic market.

Hong Kong, Israel, Korea, Kuwait, Macao China, Mexico, Qatar, Singapore, Chinese Taipei, Turkey and United Arab Emirates have separately announced that if they use the amendment of the IPR system as importers it would only be for emergencies or extremely urgent situations.”

Read more here.

Assistant U.S. Trade Representative (USTR) for Intellectual Property Victoria Espinel said December 7 that the trade office is collecting from U.S. industries information to see whether insufficient enforcement of IPR in China would justify a request for WTO dispute settlement with China. The United States, joined by Japan and Switzerland, also has filed a formal request with the WTO for information from China on the country’s IPR enforcement efforts. The latter action was necessary, she said, because “China does not share the same level of transparency regarding enforcement actions as the United States.”

The withdrawal of trade benefits are considered for Rusia but not for China.

Read more here.

Alfred Chuang, CEO of BEA, producer of entreprise infrastructure software, is quoted by Daryl K. Taft in Extreme Nano that he expects to see China take a leading role in IT as it has in manufacturing. According to Chuang China will soon be exporting high-value technology that needs IP protection instead of exporting manufactured goods alone.

Read more here.

Vincent Lam wrote an article in the China Daily about the rise in Chinese IT spending and the consequences for IP in China.

““As research and development across the region gears up, we see intellectual property (IP) protection following suit. The percentage of gross domestic product spent on R&D is rising rapidly, particularly on the mainland. It is moving towards Organization for Economic Co-operation and Development levels,” the survey said.“

“The increasing use of IT will provide the incentive for Asian companies with multinational intent to put additional pressure on their governments to enforce IP protection and support IP creation at home, the survey said.“

Read more here.

Willow Duttge wrote an article about Hong Kong’s efforts to clean its streets of counterfeited goods before the WTO summit about free trade and IP enforcement will be held.
China’s Special Economic Region with its own Rule of Law and IP law is getting ready for the global summit that takes place from December 13-18. Hong Kong Customs and Excise Department is stepping up efforts against counterfeits. The purpose is that tourists will not be bothered with vendors of pirated goods and Hong Kong’s image as shopping paradise is upheld.

“A special action team of 108 people has been created to step up anti-counterfeit measures for the global summit, (customs official) Chiu said.”
Is this action team window dressing for the summit?
“The team will continue until after the WTO meeting and will be reviewed afterward. If the counterfeit sales people have been suppressed, the special action team might not be needed in the future, he said.”

And as usual in Hong Kong the governement launched a few patronizing anti-pirated goods infomercials that were aired on TV, starring Jacky Chan and Arnold Schartzwenegger saying about counterfeiting: “Let’s terminate it.”

Duttge wrote: “With one of the world’s biggest factories for fakes next door, it could be hard for Hong Kong to control the flow until China does a better job clamping down.”

Read more here.

China’s Patent law has come a long way. It was build from scratch and modernised very rapidly. It was for example only last year that the State Intellectual Property Office (SIPO) started accepting electronic patent applications.

In 1994 Pfizer applied for a patent for Viagra and after a seven-year review period the patent was issued. During that period no questions were raised about if Pfizer had provided all necessary particualars in its patent description to meet Chinese regulation.

According to the Hong Kong Standard the Pfizer case is “a litmus test of China’s commitment to international standards of intellectual property rights.”In June 2004 the Patent Re-examination Board (PRB) invalidated Pfizer’s Viagra patent.

Invalidity was found on the basis that the patent did not conform with article 26 (3) of the 2001 Patent Law, which provides:

The specification shall describe the invention or utility model in a manner sufficiently clear and complete that a person skilled in the relevant field of technology can accurately produce it; where necessary, drawings shall be appended. The abstract shall describe briefly the technical essentials of the invention or utility model. The patent claim shall, on the basis of the specification, state the scope of the patent protection requested.

The Hong Kong Standard said: “the ruling followed a September 2001 challenge by 13 firms, including Hongtaomao Pharmaceutical and Lianxiang Pharmaceutical, arguing the patent should be nullified because it failed to fulfil the novelty requirement under the patent law.” The Beijing No. 1 Intermediate People’s Court heard the case in March 2005 and everybody is waiting for the result. Read more here

“Pfizer has appealed on the grounds that SIPO applied higher standards in evaluating its specifications than those it complied with to receive the original patent.” Read the Hong Kong Standard article here. Or, as George Evans, a Pfizer lawyer, put it on PBS’s Newshour: “They have moved the goal posts.

“Lawfirm Freshfields Bruckhaus Deringer is using the Pfizer case as an illustration that IP litigation in China can yield unpredictable results on page 11 of an interesting article about pratical tips how to improve your chances of succes in protecting your patents in China, read more here.

In PBS Newshour online you can see a reportage on the Pfizer case. This pharmaceutical giant has hired tough talking John Theriault, an ex-CIA agent: “We look at China the same way the DEA might look at Colombia, as a source country for illicit drugs.” Watch PBS Newshour’s program ‘Intellectual Piracy in China’ as streaming video here.

Beijing Haidian District People’s Court on Tuesday found internet portal Sina guilty of copyright infringement. It has broadcasted the concert of August 2005 named He Lan Shan Rock Music Festival of He Yong, a singer reports the Beijing Times.

Sina claimed that it was the music festival’s Internet partner and so had the right to broadcast the festival. Sina was fined 10,000 Yuan and must apologize to He.
I found this on Pacific Epoch, an interesting site with short concise news items.

Lawfirm Rouse & Co. International has an excellent newsletter about IP called China IP Express. It has already published number 268 and an archive dating back to 1999. See here.

In it you can read about a landmark litigation relating to registrability of colour-combination trade mark accepted by Beijing No.1 Intermediate Court.
A bit strange is that the applicant, “a famous company from Sweden” and “an internationally well-known manufacturer and distributor of saw blades” which registered the colour-combination bright orange and blue as a trademark stays anonymous throughout the article.

The other article is about the settlement between General Motors and Chery in their IP disputes that focusedon: “1.GM considered that Chery’s mini car “QQ” copied its “Matiz” and “Spark” car, and Chery even used a camouflaged “Matiz” car to pass auto tests to acquire authorization from the government over production and sales of “QQ” car.
2. Chery’s “Chery” name is to much like GM’s “Chevrolet” or “Chevy”, which has been GM’s top selling brand for eight decades.”

Read about Chery’s new IP dispute with Tencent about QQ here.

Read China IP Express here.

‘Putting pirates behind bars is the best deterrent’ is the title of an article by Achara Ashayagachat in the Bangkok Times.

Beside praising Hong Kong and Singapore’s approach of criminal sanctions to IP infringements the article cites law firm Franck Fougere, Vidon & Partners, that is operating in Thailand and China, about the source of origin of all the fake products seized in the EU: China remains the leading source with 30%, Thailand ranked second with 20% followed with Hong Kong (8%), Turkey (7%), US (4%) and Malaysia (3%).

According to this firm Thailand could learn from China’s efforts to adopt international IP conventions and promoting public awareness, although Thailand had provided training to Chinese judges

Read more here.

Shanghai No. 2 Intermediate People’s Court ruled that wines marketed by Xiang Mu Tong Trading and bottled by Xiamen Golden Huanya Food were too similar to the tradename Hennessy, registered in 1990 in China.
They had been produced under the names Hanlissy or Henglishi in Chinese that sound too similar.

Read the BBC article here and Yahoo! News article here.

Meaning of copyright in China: the right to copy

Confucius is reported to have stated after completing a book: “I have finally finished my greatest work and I am proud to say that not a single idea in it is mine.”
Source: Lawrence Liang’s Guide to Open Content Liceneses v1.2.

Of course it is not said that Confucius, if he would lived today, would have infringed any copyrights, because he’s talking about ideas only. Those are not protected by any copyright as long as the form is not derived from other works.

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Newsweek’s George Wehrfritz has second thoughts about the halelujah stories on the Chinese economy. Overcapacity will be a key problem. GDP could nosedive. From 9,4 percent to 5 percent next year to 3 percent in 2007, according to Jim Walker, chief economist for investment bank CLSA.

And the article includes the mantra about IP in China:

“high-value-added technology companies are increasingly frustrated with intellectual-property theft and China’s weak legal system.”

Important article. Too bad Wehrfritz didn’t elaborate about the role IP plays in this gloomy picture. Read more here.

After settling their dispute over an IP infringement with US General Motors out of court, Chery Automobile Co. Ltd. finds itself in a new legal fight with Tencent, China’s biggest instant message service operator over the use of the name QQ.

“Tencent QQ is China’s first instant messenger, launched and registered by Tencent in 1999. So far it has had more than 400 million users.
Chery also used QQ to name one of its economic cars launched in 2003; it applied to the Trademark Bureau of the State Administration for Industry and Commerce for the registration of the trademark in 2003.”

“According to the Shenzhen Economic News, Chery said Tencent did not register QQ as a trademark for use in the auto industry.”

Chery Automobile argues that QQ is not a highly-identified trademark but merely two letters. Not very confincing to my opinion coming from a a representative of a branch where many brands use even trademarks that consist of numbers for their models such as 4 (Renault)307 (Peugeot), 500 SEC (Mercedes).

“Representatives from Chery came to Shenzhen to negotiate with Tencent in 2003 but they failed to reach an agreement over the payment required by Tencent.”

Read more here.

“We have filed altogether some 1,000 lawsuits on the Chinese mainland over piracy and won most of them,” said Zhong Yigang, the lawyer for Guangdong Meika. “In addition to getting consumers to pay attention to protection of intellectual property rights and buy copyrighted things, we also want to cover part of our losses in this way.”

Lu Weimin, chief justice of the IPR division at the No. 2 court, said that IPR cases are an increasing trend in recent years. But Liu Chunquan, an IP lawyer, said:

“Some small company owners will just shut down the business because it is cheaper to open a new company than paying the compensation,” said Liu Chunquan, a lawyer who specializes in intellectual property.”

Read more here.

China and Taiwan were prominently present at the Plagiarus’ knockoff awards 2005. See here.
The deadline to apply for the 2006 edition is January 16th.

Found via Bruce Nussbaum in BusinessWeek.

Small and medium sized businesses in the US can get one hour of free help about how to protect their IP rights in China. The US Department of Commerce made this possible in partnership with the American Bar Association, the National Association of Manufacturers and the American Chamber of Commerce in China. Read more here.

Dr Dinesh Moonshiram wrote in L’Express, a Mauritanian newspaper, a very informative article about the informal economy. His conclusion is that the disadvantages of the informal economy, such as the infringement of copyrights and other intellectual property rights outweigh the advantages such as job creation.

“Leading research institutes like McKinsey have found that the informal economy is actually growing in many countries including China, Brazil, India, Poland, Portugal, Russia, and Turkey. They have conclusively proved that that the substantial cost advantage that informal companies gain by avoiding taxes and regulations more than offsets their low productivity and small scale.”

So bad news for the IP protection. Read more here.