Prepositions in China Product Labels Tell It All: Good Bye Country of Origin, Hello Country of Destination

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The world is flat according to Thomas Friedman, and therefore the determination of the country of origin of most products is becoming more complex. So what should be put on the product labels? Below a short history.

Made in China
The probability that any given product has a label ‘Made in China‘ (中国制造) is quite high. Because of some lethal food and drink scandals and recalls, its reputation was dealt some major blows. Dirk Lammers wrote in 2007 an article for MSNBC.com about the effort his family made to avoid one week products with the label Made in China. Read here.

Made with China
To associate China products with Western quality, a “co-branding” campaign was started in 2009, under the banner of Made with China. As you can see in the video: Made in China, with American sports technology, Made in China with European styling, Made in China with software from Silicon Valley, Made in China with French design. Read also Jin Zhu’s China Daily article about a static advertisement during the Shanghai F1 Grand Prix, in April 2010, here.

http://player.youku.com/player.php/sid/XMTM1NDg4NzMy/v.swf

World Trade Organization (WTO) General-Director Pascal Lamy was trying to ion out trade disputes bubbling up, and invoking David Ricardo’s theory on comparative advantage,
to put it into perspective. Mr Lamy used the example of an iPod.

“According to a recent study, it has an export value of $150 per unit in Chinese trade statistics but the value added attributable to processing in China is only $4, with the remaining value added assembled in China coming from the United States, Japan, and other Asian countries.”
Read Mr Lamy’s speech of April 2010 here.

Made for China
trendwatching.com identified eleven trends in 2010. On number 11 is Western products and brands that are adapted and specially ‘made for China, if not BRIC‘. The explanation is that Western companies want to profit from the economic growth in China by leveraging the perceived quality of Western goods and brands. An example is Shang Xia, a new brand of French luxury house Hermès.

“Affluent Chinese consumers prefer foreign brands: 52% of consumers whose annual income exceeds RMB 250,000 (USD 36,765) trust foreign brands more than Chinese ones while just 37% said they prefer the latter. (Source: McKinsey, September 2010)”
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HKPC Grants 100 mln HK Dollar: But What Is So Innovative About A Reverse-Engineered Seat For An Outdated Plane?

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Jake van der Kamp, columnist of Jake’s View in the South China Morning Post is filleting Hong Kong Productivity Council (HKPC)’s decision to grant 10 million HK dollar from the Innovation and Technology Fund to reverse engineer economy class seats for the Airbus A340, a plane that is phased-out. The receiver of the grant may not even manufacture the product in Hong Kong.

Van der Kamp writes: “Reverse engineering is the process of taking someone else’s manufactured product completely apart, copying every bit of it and then manufacturing it yourself and calling it your own.”
The question remains: what is innovative about reverse-engineering, if you do not add an improvement?
Article by Simpson Cheung for the SCMP (free) about the granting of the 100 million HK dollar, here free). Link to Jake’s View here (paid).
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Innovative Copycats? MIIT Vice Minister’s Remark On Piggybacking of Innovative Copycats

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Adam Smith of World Trademark Review wrote a column about China’s Vice Minister of the Ministry of Industry and Information Technology (MIIT) Yang Xueshan, who made a controversial remark: that the innovative elements of copycat products should be protected and encouraged. Mr Smith interviewed yours truly:
Danny Friedmann, an IP rights consultant in China and author of IP Dragon, supports Yang in this, but disagrees with his reported statement that knockoff products should not be labelled as piggybacking on another’s intellectual property without proper assessment. “If you base your innovation on existing proprietary technology or design or a brand, it is piggybacking,” said Friedmann. “That does not say that the innovation is not of a high standard or not sorely needed. If you steal paint and canvas and then paint a beautiful piece of art, you are both a thief and an artist. Yang wants to stress only the latter.”

Read Adam Smith’s column here.
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IP Dragon Book Review: Poorly Made In China

Paul Midler‘s book Poorly Made in China is remarkable. He not only wrote a first hand account of the challenges companies face when they manufacture their products in China, but did it in a lucid, literary style, something you would not expect given the prosaic character of the subject. How exciting can the production of soap and shampoo be, let alone read about it? Well, Mr Midler shares his travails, surprise, doubt, confusion and discovery in a way that you virtually experience it. He describes the factories so that you can almost smell the fumes, taste the paint. It helps that Mr Midler uses a first person narrative, but also the protaganists become real (even though all names of persons and companies have been changed, except for Mr Midler’s), and to some extent it is not even impossible to identify with the culprits. The book gives ample illustrations of the infamous quality fade: manufacturers who start to use less and less of a certain ingredient, change some production method, all to save some money.

Counterfeit Culture is one of my favourite chapters. It includes an unforgettable scene about Bernie who is managing the China business for Johnson Carter and wants a breakdown of the ingredients King Chemical uses when it is manufacturing their soaps and shampoos and Sister, who is the co-owner of King Chemical: “Sister said that she was not compelled to provide a breakdown. The details were their trade secrets, she insisted.
This infuriated Bernie. “The product line came from my sample set. What trade secret? It’s my fucking product!”

Mr Midler dryly determined: “the factory was claiming intellectual property rights over its copying methods.”

In the same chapter Midler convincingly debunked the myth that Marco Polo ever went to China, how in a Confucian sense the manufacturer feels superior to its customers, how whistle blowers in China are not revered even though they become complicit in working at a factory that manufactures lethal products and he shows that poverty is not always the cause of quality fade. Mr Midler illustrated China’s reference for counterfeit products over authenticity with the story of emperor Qianlong. When the emperor found out that a small jade cup was not made during the Ming Dynasty, but was made by the grandfather of the curator he praised the counterfeiter: “The emperor even had a special box commissioned for the jade cup, which he saw as a model of sorts, and on the box he had inscribed a kind of treatise on the art of counterfeiting.”

Many Western importers seem all too willing to do business with Chinese suppliers who offer to manufacture their products against prices that are too cheap to even break even. And after they find out that their manufacturer uses stagecraft and trickeries, or manufacture in larger batches then they authorised (third shift counterfeiting), they often have invested so much time, effort and money to smoothen the relationship with this supplier, that they do not want to start all over again.

There is a nice saying in the book that the Western importers play checkers and the suppliers chess. Mr Midler means that the manufacturers are doing business in a non-linear way.

Many manufacturers lure importers of Western countries that abide by intellectual property rights laws to place orders, so that they get their hands on the design and marketing of their products. The manufacturers then produce more products than is authorised. This third shift surplus they trade with countries that do not observe intellectual property rules stringently. As Mr Midler put it: “Manufacturers that produced products using unique, original designs provided by importers, realized that they were perfectly positioned to take advantage of the situation by moving designs from one part of the world to the other, while earning a premium in the process. This was not customer segmentation, but an arbitrage opportunity.”

And if these manufacturers have the know-how of a product, they sometimes do not even have to violate intellectual property rights to get new customers. Mr Midler explains that not only technology transfer takes place but also disintermediation; in that case, the supplier deals directly with the importers’ retailers, thereby removing the importer from the business equation.

Disclaimer: Not reading this book about manufacturing in China is at your own risk.

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WikiLeaks U.S. Cable: “Chinese Government Ordered Hack Google”

Ellen Nakashima of the Washington Post wrote: “The penetrations resulted in the theft of “significant” intellectual property, Google officials said.” Read her article her.


Whether it is true or not is unsure: the source is anonymous and the leaker too (are not necessarily the same). The reason why Google withdrew partly from China might be more complex.
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Music in China Business Model: Life Without Oxygen Possible?

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NASA discovered that life can exist even without the 6 building blocks that were presumed crucial; carbon, hydrogen, nitrogen, oxygen, phosphorus and sulfur, read here. In the same vain the music industry thought for a long time that their only way of survival was selling songs. But the digital revolution sucked this oxygen out of their business model. Good news for them is that life can still exist, even without seeming crucial building blocks. If paying for songs does not work anymore, it can be substituted with free songs plus advertising on the side. Just as some life can exist without oxygen, and as NASA just found out even without phosporous if it is substituted by arsenic.

Top100.cn is trying to survive in the most “toxic” (because hardly any customer wants to pay for songs) and competitive (Baidu is its formidable competitor) business environments in the world.
Top100.cn is also experimenting with charging for:
  • selection of music, with recommendations and links;
  • a subscription for cloud service, so that you can access music on different devices.
In Spock’s words: “It’s life Jim, but not as we know it.” The music industry could take an example to the astrobiologists who now realise that their search should be much more comprehensive in order to achieve their goal.
Read The Economist article here.
Thank you Mikołaj Rogowski, former guest columnist of IP Dragon, for pointing to the Economist aricle and Hans Klaufus to the NASA press release.
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Consolidation of China’s Internet Market Will Breed Better IPR Protection and Enforcement

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China Knowledge@Wharton, a bi-weekly online resource, has an interesting overview article about the Land-Grab Mentality: The Cutthroat Competition on China’s Internet.
Mark Natkin, managing director of Marbridge Consulting in Beijing said that in the business environment where rules can change overnight, people are searching and finding shortcuts. Copying another company’s IPRs is such a shortcut.

Edward Yu, president of Beijing-based consultancy Analysys International gives some examples: “Baidu is actually a similar model to Google, with a bit of local adaptation. CTrip is actually a mirror [image] of Travelocity and Expedia…. You can take advantage of this from a pure investment return point of view. But from an ethical point of view, it’s a different story.


The most interesting remark, in my opinion, was made by Mr Natkin who said that the Chinese government is waiting until the number of internet companies has narrowed down (because of consolidation by mergers and acquisitions or that smaller companies will die) from 200-300 to 10 internet companies, and at that point will start to regulate. From a practical point of view this makes a lot of sense. Also bigger companies will start to demand more regulation in the competition and protection and enforcement of their own IPRs.
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Did BAIC Know It Was Joyriding With Ford’s Trade Secrets?

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November 17, 2010 Xiang Dong Yu, an automobile engineer who worked for Ford Motor Corporation from 1997-2007, pleaded guilty to two counts of theft of trade secrets, as was announced by the Department of Justice of the Eastern District of Michigan.

Between December 20, 2006 and January 2, 2007 he worked for the Ford subsidiary in Shenzhen, China. According to the press release of the Department of Justice:

Yu copied some 4,000 Ford documents onto an external hard drive, including sensitive Ford design documents. Included in those documents were systems design specifications for the engine/transmission mounting subsystem, electrical distribution system, electric power supply, electrical distribution system, electric power supply, electrical subsystem and generic body module, among others.

In 2007 he resigned and in 2008 started to work for Beijing Automobile Industry Company (BAIC). Maybe Ford found out copycat behaviour at BAIC or maybe Mr Yu left traces, either way, the FBI was investigating and when Mr Yu returned to the U.S. he made a stupendous mistake by bringing his BAIC laptop with the stolen Ford specifications on it.

Read more here.

In Hong Kong trade secrets can be protected by the action of breach of confidentiality,”entirely judge-made law, untrammelled by statutory modification,” as Professor Pendleton put it jocularly. The judgements have been very generous to employees: basically everything you can memorise employees can keep. Mr Xiang of course downloaded files on a laptop. In China several statutory laws apply (contract law binds contract parties and unfair competition law can bind third parties, such as BAIC). See regulations relevant to trade secrets in China and Ms Pagnattaro’s advice on how to protect trade secrets, here.

Yes, I have left the question of the title unanswered. Could or should BAIC have known that Xiang did not develop the technology during the time when he was working for BAIC? What is your take on the matter. Comments are welcome.
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How Green Should Patents in China Be? Poisonous Green

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If you live in China, you will easily see one of its biggest problems: pollution. In China car manufacturers claim that they are unable to produce low-cost hybrid cars because of a small number of companies that have patented key components, writes Mauricio Bauermann Guaragna in a very interesting article for ISIS, a research centre of the Sauder School of Business of the University of British Columbia, see here.

Bauermann Garagna’s writes that although patents give incentives to new technology, they also stifle competition. [Research is inconclusive whether patents have a positive or negative net effect on innovation; it also depends on which developmental stage a country is in and for which industry]. The European Patent Office imagined the following two scenarios for the patent system in 2025: 1. Because of a pandemic and following mass protests the patent system over health technology will be abolished, leading to direct government and prize systems. 2. An open source system for green technologies, software, energy and biotech will be developed.
Another scenario is a portfolio of patents that can be used by the world: World Business Council for Sustainable Development (WBCSD) initiated the Eco-Patent Commons, on a voluntary basis.
IP Dragon’s take: All these methods will help. But the problem is bigger than people see at the moment. Most pollution does not kill directly, hence there is no sense of urgency. And people get used to near everything, polluted air, water and food in China is already not extraordinary anymore. But if you would add the lives that will be destroyed each year the coming decades, you will end up with more victims of pollution than a pandemic, terrorist attack and the biggest Tsunami can cause together. So you could at least argue that drastic measures are needed in the public interest. China’s demand for energy is still growing and so is its pollution. Therefore China needs clean energy and it needs it rapidly. If the claim of the Chinese car industry is valid and the other patent solutions do not work, article 49 Chinese Patent Law 2008 should be seriously considered: “Where a national emergency or an extraordinary state of affairs occurs, or where the public interest so requires, the patent adminstrative department under the State Council may grant a compulsory license to exploit the patent for invention or utility model.
Picture: Danny Friedmann

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Why China Is Preferred Over India By The U.S. Pharmaceutical Industry

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Joseph Alexander wrote for Pharmabiz.com that the Pharmaceutical Research and Manufacturers of Amercia (PhRMA) choose for the China Pharmaceutical Industry Research and Development Association (SINO-PhIRDA) to cooperate and continue a regular dialogue.
Why PhRMA did not choose to sign a cooperation agreement with its Indian equivalent?
Read Mr Alexander’s article here.
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Parasitizing Trademarks of Drugs in China Breeds Resistant Malaria Parasite

World Health Organisation (WHO) officials say that counterfeit drugs and poor storage are endangering the health of millions of people in Asia.

Ron Corben wrote for Voice Of Amercia the article WTO Fears Growing Malaria Drug Resistance May Be Spreading (November 28, 2010): “In recent years, authorities cracked down against illegal factories in China. Meanwhile counterfeit producers have been found elsewhere, including Cambodia and Burma.”
Simeon Bennett wrote for Asia Health Space the article Malaria Redux And Counterfeit Drugs (April 2, 2010): “In Pailin [Cambodia], a flood of counterfeit pills from China and elsewhere is helping to breed a superbug that resist even the most-effective medicine.” Read .
This problem is recurring for years now:
2009: See Simeon Bennett’s 2009 Bloomberg article Fake Malaria Drugs Spread, Breed Resistance to Lethal Parasite.
2007: Jill McGivering’s 2007 BBC News article ‘Tracking the fake malaria drug threat‘.
Eye for an eye
What is a fitting punishment for these counterfeiters? Denying them help when they would contract Malaria? But even if you would impose the biblical sanction of an eye for an eye, a tooth for a tooth, how can you sanction someone that contributes to the death of not one but thousands of people who contracted Malaria and use counterfeit drugs that do not cure them?
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Tian Lipu: “No Plagiarism ’cause China’s High Speed Rail Systems Climb Mountains”

At the ‘Third Intellectual Property and Urban Development Mayor Forum’, November 22, 2010, the State Intellectual Property Office (SIPO) commissioner Tian Lipu refuted allegations that China’s high speed rail systems are based on plagiarism. See IP Dragon’ article ‘Knowledge Transfer in China: How To Train The Dragon To Consume You‘.
Sina reports that China News Net was quoting Mr Tian saying:
How can digesting other people’s technology, combined with the adaptation to your own situation so that something new is created be plagiarism?
An example of such an adaptation was given: China is allegedly the first country where the high speed systems can work in mountains.
Read the translated Sina article here, original here.
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IP Dragon 5 Years: Never A Dull Moment


Today it is exactly five years ago that I started with IP Dragon. Since its inception I got a lot of interesting feedback from readers. The readers are the very motivation for me to keep going with the blog.

When I revisited IP Dragon’s first blog post today, I saw that my mission at the time of informing non-Chinese companies has broadened to all companies, since most IPR in China disputes are between Chinese companies. Rather than pointing fingers at China for non-compliance of international treaties IP Dragon is trying to show provisions in China’s IPR laws that might be not conducive to innovation (Patent Law), creativity (Copyright) in China or commerce (Trademark) in China.
Thank you for reading IP Dragon and I always enjoy reading your interesting feedback.
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Copied Gun Manufacturer Starts Campaign Against Manufacturers of Copied Copied Guns

MadBull Airsoft launched Operation Copycat’, a campaign against counterfeit and cloned airsoft (in between real and toy) guns, read here.

The enforcement of intellectual properties of gun manufacturers and gear makers in airsoft has been ongoing for sometime now. We know of Umarex, Cybergun, and Magpul on the watch for companies, and mostly at the retail end to block the export and sales of clones and unlicensed products coming out from the Far East, mainly from Mainland China.”
Airsoft is a hobby for grown-ups that like to use 1:1 replicas of real guns to shoot each other with plastic pellets. Read more here.

A manufacturer of copied guns that starts a campaign against a manufacturer of copied copied guns? Is this not tu quoque? Well the airsoft manufacturer has the license of the gunmaker to use the design from the manufacturers of the real guns. In some jurisdictions the licensee of a trademark, copyright or design right can enforce the right of the intellectual property holder. Then the airsoft manufacturer has its own trademark and might have copyright and design rights (if it is visible).
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In Honour of The Great Bruce Lee 李小龍: Fight For Trademark Protection in China and U.S.


Today it is 70 years ago that the great Bruce Lee 李 (Li=Lee)小(Xiao=little) 龍 (Long=dragon) to whom IP Dragon feels related in spirit, was born in San Francisco. He grew up in Hong Kong until his teens, then went back to the U.S. and became the biggest martial arts filmstar ever in both Hollywood and Hong Kong. In this blog posting IP Dragon is looking from an IP related angle to honour the martial arts hero.

In China and the U.S. there is a lot of work to do for the heirs of Bruce Lee to protect his name and image.
In China
The China Daily reports that the name of Bruce Lee in Chinese 李小龍 has been registered as a trademark for coffee, dumplings, candy, instant noodles, ice cream, tooth brushes and past and home appliances. The State Administration for Industry and Commerce (SAIC) stated that the right to use Bruce Lee’s Chinese and English name should belong to his heirs, because otherwise the public will be misguided. According to the China Daily the SAIC is addressing the matter and the applications that are now being processes will be rejected. Shannon Lee, Bruce Lee’s daughter, who is the leading the Bruce Lee Enterprises, is trying to protect and enforce the Bruce Lee trademark. She found unauthorised use in Changsha, Shanghai, Qingdao and Shunde (see below). Ms Lee does not mind that Bruce Lee’s picture is used at the Shanghai World Expo 2010, but she will not have his image used for fast food chains. Read the China Daily article here.
In Shunde, a city in the south of Guangdong is the ancestral house of the Lee family. The city built “Li Xiao Long (李小龍) paradise”, a giant memorial hall devoted to Lee’s life, martial arts and acting career. The Straits Times wrote that the Southern Daily newspaper reported that Shannon Lee is trying to let the local government hand over the trademark name of 李小龍. Read more in the Straits Times.

In the U.S.
The Bruce Lee Enterprises, LLC, filed a suit at the U.S. District Court Southern District of Indiana, Indiana Division, complaint for damages and injunctive relief against Marc Ecko Enterprises, A.V.E.L.A., Inc., Leo Valencia, Urban Outfitters, Inc., and Target Corporation for unfair competition and trademark infringement under federal statutes (Lanham Act), with pendent claims for common-law trademark infringement and unauthorised commercial use of statutory (California and Indiana’s right of publicity statutes) and common law right of publicity, because they used a picture of Bruce Lee in clothing.
The defendants claimed that the U.S. District Court of the Southern District of Indiana lacked the personal jurisdiction and that it was the improper venue. The demanded that the case was transferred to the the Southern District of New York or the District of Nevada. Judge William T. Judge decided to transfer the case to the Southern District of New York. Read more at the site of FindACase here.
I am positive that the daughter of Bruce Lee has also genetic advantages in fighting legal battles and she has the philosophical edge of her father who said:

Using no way as way, having no limitation as limitation
Bruce Lee, 27 November 1940 – 20 July 1973
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Knowledge Transfer in China: How To Train The Dragon To Consume You


Professor Pierre Sauvé, deputy managing director, director of studies and faculty member at the World Trade Institute (WTI), Switzerland gave a very interesting guest research lecture at CUHK November 24, 2010: “Waiting for Godot? The troubled prospects of (coherent) multilateralism in investment rule making”. Inspired by his speech in which he mentioned the requirement of many countries to use a certain percentage domestically produced parts in the product to prevent that tariffs are imposed that make the product uncompetitive (for example there is a domestic content requirement in the U.S. car industry of 75 percent. Therefore Japanese automobile plants opened in the U.S.), IP Dragon has been thinking about knowledge transfer in China.


Also on November 24, Leslie Hook wrote on the front page of the Financial Times an article called ‘Westinghouse gives China details of nuclear reactor technology’:
Westinghouse Electric has handed over more than 75,000 documents to its Chinese customers as the initial part of a technology transfer that it hopes will secure the company’s place in the world’s fastest-growing nuclear market.”
Whether this hope can become a reality remains to be seen. There are ample examples of companies that transferred their technology in the hope of selling more products in the future, only to find out that their customer metamorphosed into formidable competitors.
Speed railway system: Alstom (France), Siemens Mobility (Germany), Kawasaki Heavy Industries Ltd. (Japan) shared high-speed rail technology with China’s CSR Corporation Ltd, and China CNR Corporation Ltd.
Thomas Hout and Pankaj Ghemawat wrote the article ‘China vs the World: Whose Technology Is It?’ in the Harvard Business Review of December 2010. In this article they give an overview of China’s plans, which they formulated in 2006, to close the technology gap with the west.
“China wants to strengthen innovation, particularly in energy, transportation, the environment, agriculture, information and health.” Professors Hout and Ghemawat write that China wants to increase their proprietary IP. In order to prevent that Chinese companies have to pay royalties for foreign IP, China is promoting its own unique national technology standards, that form de facto entry barriers to foreign manufacturers: WAPI (Wireless local area network Authentication and Privacy Infrastructure) and TD-SCDMA (Time Division Synchronous Code Division Multiple Access).
Because China has many state-owned enterprises, it can orchestrate mergers and acquisitions in industries that are considered of key importance to China. Professors Hout and Ghemawat give four mechanisms that China is using to support their industries:
1. Tax incentives for key industries;
2. Spending and soft loans for key industries;
3. Procurement that favours indigenously developed technologies (China is an observer to the WTO General Procurement Agreement and not a member);
4. Forcing multinational companies to transfer their newest technologies to their joint ventures with state-owned companies.
The following companies are among those that will probably thrive under these circumstances:
Wind energy: Sinovel, Goldwind
Enterprise Resource Planning (ERP) software: Kingdee International Software Group
Solar energy: Suntech, Yingli Solar, JA Solar
How to train the dragon … to become your competitor?

Why would a company transfer their technology, which is their only advantage in comparison to Chinese companies that can produce much cheaper? Are these foreign companies suicidal?
Some are lured by the prospect of great deals in the long run, and expect loyalty from Chinese companies and China. However, this might never materialise. Instead it is very possible that after the technology transfer has been completed the joint venture will be dissolved so that the Chinese part will leapfrog and become a formidable competitor of the foreign company.
Some foreign companies might be more realistic. They might have the conviction that if they don’t do it, some other foreign company is cooperating with the Chinese and securing in the short term big orders. Because of the prisoner’s dilemma they might be right. China does not have this problem. The foreign company has probably the idea that the revenues from the Chinese orders can be reinvested into new technology, so that the technological edge can be sustained. Nevertheless, it seems a risky strategy.
UPDATE November 29, 2010:
Francois de Beaupuy and Tara Patel wrote: ‘China Builds Nuclear Reactor for 40% Less Than Cost in France, Areva Says‘, November 25, 2010.
Nuclear Townhall reports in the article ‘China, Russia Leveraging Nuclear Energy For World Economic Lead‘, November 26, 2010: “Chinese technicians have already reversed-engineered Areva 900-MW reactors built at Daya Bay into the CPR-1000 and have 16 under construction, the first scheduled to open next September. Zhang [Shanjing, president of China’s Guangdong Nuclear Power Corporation] said that once certain intellectual property issues are cleared up with Areva, Guangdong would begin exporting, probably by 2013.
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Taiwan Makes Priority Claims in Other Countries Possible In The Patent, Trademark and Plant Variety and Plant Seed Acts


Taiwan Intellectual Property Organization (TIPO) announced that the Presidential Office promulgated the amendments of some IPR laws on August 25, 2010, that makes priority claims possible in other countries. The amendments went into force on September 12, 2010. Implementing a principle of the Paris Convention for the Protection of Industrial Property (article 4) and incorporated in the WTO’s TRIPs Agreement (article 2(1)). IP Dragon already covered the ECFA here. Read more here.

It concerns the following provisions:
Article 17 Plant Variety and Seed Act
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Trademark/Copyright Use or Abuse: Coca-Cola in Hong Kong

Do you think this use of the trademark should be allowed.

“Immoral to drink sweat and blood. Coca-Cola.”
Photo taken from the wall at Franklin Centre at CUHK Campus in Shatin, Hong Kong. It is in protest against alleged bad labour conditions at the Coca-Cola plant.
One could argue that the copyright (moral right of droit au respect de l’intégrité de l’oeuvre) of the Pulitzer Prize winning photo by Eddie Adams is infringed.
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China Launched 10-Year National Patent Development Strategy

During the 4th China Patent Week China launched the National Patent Development Strategy (2011-2020). The strategy focuses on:
  • International cooperation in patent protection and utilisation;
  • preferential policies to encourage R&D by high-tech companies, research institutes and colleges;
  • Overseas IP websites so that foreign companies can check patent info;
  • Establishment of organisations for patent trading in big cities.
To have a long term vision of a decade (the life-span of a utility patent and also design patent and half the life-span of an invention patent) is praiseworthy, although we have to see what the preferential policies exactly entail.
Read Hao Nan’s China Daily article here.
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Monday Meditations on IPR in China

Gouzou de la Réunion
Author: Bouette

Counterfeiters and copyright pirates in China respect intellectual property. They merely wish the intellectual property to become their intellectual property that they may more perfectly respect it.

Paraphrasing the controversial G.K. Chesterton

UPDATE November 23, 2010:
I just found out that the term Monday Musings was unconsciously plagiarised from IP Kat. I apologise for the musing and will meditate on Mondays.
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Why Kaixin001 Might Not Be Too Happy About Its Victory Over Oak Pacific Interactive

Social media site Kaixin001‘s content was copyied by Oak Pacific Interactive (who owns social media site Ren Ren). It was put online under the domain name Kaxin.

Beijing No. 2 Intermediate People’s Court ruled that Oak Pacific Interactive should pay to Kaixin001 400,000 RMB as compensation for damages, remove the copied content and stop using the name Kaixin (which means “happy”) on the site. However Oak Pacific Interactive can continue to use the domain name Kaixin. So if you type in Kaixin, you will be redirected to the social media site of Ren Ren.

Read the Xinhua article via China IPR here.
A fair competition between social media sites such as Ren Ren (人人网), which focuses on internet cafe visitors and college students, and Kaixin001 (开心网), which caters to white collar workers, is laudable. However, one can pose the question about whether these two competitors reached their pole position, making use of the protection the Great Chinese Firwall gave them, de facto excluding social media sites such as Facebook and LinkedIn, is fair.
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USCBC Members’ Perception: Progress of IPR Enforcement in China Marginal

The US-China Business Council (USCBC) released the 2010 Member Priorities Survey Results.

Top 10 concerns cited by USCBC member companies:


1. Human resources: talent recruitment and retention (tie)
1. Administrative licensing, business, and product approvals (tie)
1. Competition with state-owned enterprises (tie)
4. Intellectual property rights enforcement
5. Cost increases
6. Market access in services
7. Transparency
8. Protectionism risks in China
9. Government procurement
10. Standards and conformity assessment

There is no change in the progress compared to last year according to the members. 58 percent of all members are very concerned about the enforcement of IPR regulations in China.

Read more here.
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China Recognises Scotch Whisky as Geographical Indication

Great victory for the Scotch Whisky Association.

“Scotch Whisky’s registration as a GI in China – recognising Scotch Whisky can only be made in
Scotland – is the culmination of three years of discussions between The Scotch Whisky Association (SWA) and the Chinese Government. The announcement was made today [November 8, 2010] at a Ministerial meeting in Beijing between the Rt Hon Dr Vince Cable MP, the UK Business Secretary, and Mr Zhi Shuping, Minister of China’s General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ).”
Protection is great, but whether it will be enforced is another question. You can say the glass is half full or half empty. Let’s chose for the first option for now. So, congratulations to the Scotch Whisky Association for its stamina, or rather: cheers!
Read more here. Hat tip to Managing IP, see here.
UPDATE: December 12, 2010
China unveiled high-end whisky for 18,000 Renminbi per bottle, read K.J. Kwon’s Reuters article about it here.
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USCC 2010 Report Released

2010 Report to [the U.S.] Congress of the U.S.-China Economic and Security Commission (USCC) has been released. The report is 324 pages long and IP Dragon will read those parts relevant to intellectual property in China, including market access, in the coming weeks.

If you cannot wait read the 4 page opening remarks of Chairman Dan Slane and Vice Chairman (why not vice chairperson?) Carolyn Bartholomew on the report which includes information about indigenous innovation and procurement in China without applying the WTO Governement Procurement Agreement (GPA) rules (which is not that strange since its status is observer since February 21, 2002, not party, see here, Hong Kong is party June 19, 1997 and Taiwan July 15, 2009), a striking name for China’s approach to internet control as “networked authoritarianism” and its take on the hijacking of U.S. internet traffic. Read here.
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IP Dragon Chosen As One of the “25 Blogs Chinese Advertisers Should Read”

Normandy Madden composed a list of 25 blogs Chinese advertisers should read for Advertising Age:

“Blogging has become a national obsession in China, with over 50 million Chinese regularly contributing to local blog sites. A handful of these sites are written in English, and provide a fascinating perspective on a country that is changing quickly. Below, we’ve identified 25 blogs that can serve as a great resource for marketers in China.”

18. IP Dragon (ipdragon.blogspot.com) is dedicated to gathering and sharing information about intellectual property in China, a murky area since government officials have been slow to crack down on piracy.

Thank you Ms Madden and Advertising Age for the compliment.
Read the complete list here.

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IP Dragon Featured As Top 50 Patent Blog

IP Dragon was informed by the Guide to Online Schools that it was on the list of Top 50 Patent Blog. Thank you for the encouragement. Click on the banner to see the complete list.


50 Best Patent Blogs

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More Chinese Trademarks More Vehicles of Innovation = More Innovation?

China Hearsay’s Stan Abrams takes a critical look at statistics about trademark registrations in China. He is rightly filleting the alleged relationship between increased trademark registrations and a growing awareness of trademark protection among Chinese entreprises, read more here.

However it could be said that the growth of trademark registrations in China would indicate two things:

– More companies want to build their own brand;
– Brands are a way to exploit innovation. So you can have a patented invention, which needs a trademark if you want to sell. The question, however, remains: if there are more vehicles of commerce for innovative products, will there be more innovation? In other words:

More trademarks equals more innovation?

多商標 = 多技術創新?

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Best of Google’s White Paper: Censorship is Hurting China’s Economy

Intellectual property and market access are interdependent subjects. If there is a barrier to the free flow of information (the market access is challenged, regulated or censored when it refers to copyrighted goods), no intellectual property can be exploited and this will feed a demand for pirated works and counterfeit products.

Google has problems accessing the market in China, because it cannot offer its users unrestricted access via its search engine and other applications. In the hope of solving this problem it published a white paper of 25 pages, see here: Enabling Trade in the Era of Information Technologies: Breaking Down Barriers to the Free Flow of Information, in which it appeals to basically everyone:
  • “Focus on and publicly highlight as unfair trade barriers those practices by governments that restrict or disrupt the flow of online information services.
  • Take appropriate action where government restrictions on the free flow of online information violate international trade rules.
  • Establish new international trade rules under bilateral, regional, and multilateral agreements that provide further assurances in favor of the free flow of information on the Internet.”
If this does not sound very innovative to you, it is because it is not.
The most persuasive argument: internet censorship is bad for the economy of the censoring country, because it is a restraint on global trade. The other arguments (trying to stop violation of international trade treaties such as WTO’s TRIPs, unfair competition and favouring indigenous industry) might all be laudable and valid, but not as compelling to China right now.
Therefore it would be interesting to elaborate how censorship is hurting China’s economy and stifling innovation. More about this subject later.
UPDATE November 18, 2010:
Ronald Yu pointed me to an interesting The Register article by Cade Metz ‘Baidu boss: Google don’t know China‘ that the problems Google is facing are not only related to market access. Thanks Ron.
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Hotlines IPR in China

IPR Focus of IPR.gov.cn has announced that legal aid centres on IPR will participate in the ‘Special Campaign on Combating IPR Infringement and Manufacture and Sales of Counterfeiting and Shoddy Commodities’ via the following phone numbers:

12330: specialised public benefit hotline which provides IP-related legal aid and receives complaints “with quick response and serious attitude”;

12312: receiving complaints on commercial affairs.

12315: dealing with consumer complaints;

12365: receiving complaints on product quality;

12390: reporting IP infringement and piracy.
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Another Mass IPR Campaign in China: Groundhog Day All Over Again

China’s Ministry of Culture announced that it has launched an IPR campaign that cracks down on counterfeit products and needs to raise awareness about IPR protection. It focuses on karaoke bars, websites, online-games, internet cares, animation and artistic products. Read the Xinhua article via People’s Daily Online here. Sounds familiar As you might have already read here or here (chapter 8.3), IP Dragon is not a believer in China’s mass campaigns, because:

– they are temporary (although this campaign will be quite long: half a year);
– fight symptoms not the causes;
– the are announced, so that infringers can take this into account.
However, the best part of these massive IPR campaigns were their imaginative names of these massive campaigns, such as “Operation Mountain Hawk”, “Sunlight 1, 2 and 3” and my favourite “Blue-Sky”. Although you would expect the Ministry of Culture to be in the best position to come up with a great name, they unfortunately called this campaign just generically campaign.
However, if the campaign has some name, please let me know. In the mean time my suggestion is “Groundhog Day All Over Again”. If you have a more imaginative name, please let me know.
UPDATE November 15, 2010:
IPR Focus of IPR.gov.cn sent me a document that told me the name of the campaign:
‘Special Campaign on Combating IPR Infringement and Manufacture and Sales of Counterfeit and Shoddy Commodities’ and elaborated on the campaign: It includes a lot of shoulds for all involved in the protection and enforcement of intellectual property rights in China. It also gives a schedule of which steps will be taken:
1. Mobilisation period (October 2010): Relevant departments in different regions shall formulate detailed plans to guide implementations. Proposals drafted provincial, municipal and the central administrations shall be submitted to the Leading Group Office of the National Campaign before November 10.
2. Implementation period (November 2010 to February 2011): Relevant authorities shall take action in accordance with the Plan and the respective implementation proposals. The Leading Group Office of the National Campaign will cooperate with other relevant authorities to supervise the implementation progress in different regions. Provincial administration will conduct spot check in local areas.
3. Acceptance inspection period (March 2011): Relevant departments in different regions shall summarise the experience and lessons gained in the special campaign. The Leading Group of the National Campaign will recognise the outstanding performance of the regional departments by granting honorable titles and rewards and later report the process and achievements of the special campaign to China’s State Council.
Well at least the makers of the plan are optimistic; they already know that there will be outstanding performances of the regional departments. Then again, who would not perform outstandingly, if there is honourable titles and rewards are at stake… What happened to taking pride in the work you are supposed to do?
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Are Intellectual Property Rights A Subspecies of Human Rights?

Damian Reece, Head of Business of The Telegraph was commenting David Cameron’s trip to China. According to Mr Reece his timing to talk about human rights was wrong and therefore counterproductive. Instead, writes Mr Reece, he should have focused on intellectual property rights related problems in China. Read here.

Mr Reece is most certainly right that timing when talking about human rights can be of key importance. But this applies equally well for bringing up the subject of intellectual property rights. When, if ever, is it a good time to point with an accusatory finger to an official of another country in public about a sensitive issue, such as human rights or intellectual property rights? It is understandable that an politicians want to be transparent toward their consitituency about their critique in regard to another country. Mr Reece also suggests that human rights and intellectual property rights are completely separate issues. Are they? This is an interesting issue.
Professor Daniel Gervais wrote an interesting article about it. He describes the two schools of thought about the topic: cohabitation (conflict) model and compatibility model. In the cohabitation the negative impacts of IP on human rights are emphasised, such as the possible restrictions on the expression of free speech, problematic access to medicines etc. While the compatibility model stresses that the two go hand in hand.

Read Professor Gervais’ article ‘Intellectual Property and Human Rights: Learning to Live Together’ (March 1, 2008) for the book with the same name, edited by Paul L. C. Torremans, published by Kluwer, here.
With Professor Gervais and also with Professor William Alford (who wrote in his famed ‘To Steal a Book Is An Elegant Offense: Intellectual Property Law in Chinese Civilizatation’ that the rule of law is a precondition for private rights, such as IP) I think the latter theory has most merit.
Are intellectual property rights a subspecies of human rights?
Professor Peter K. Yu advocates a human rights framework for intellectual property, read his research paper ‘Reconceptualizing Intellectual Property Interests in A Human Rights Framework’ (2007), here.
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Why The Chinese Educational System Is Not More Conducive To Creativity: Some Hypotheses

China is the country with the most creative people in the world. That is a truism in a country with 1.3 billion people. In the past China showed the world the way to creativity: compass, gunpowder, papermaking and printing, all are Chinese inventions. So why are copyright piracy, counterfeit trademarks and patent infringements that origin from China so rampant?

I have written about some of the extra-judicial factors before, see here (chapter 8), but I have overlooked one of the fundamental flaws that China has to fix: its educational system.
I assume that for an educational system that fosters creativity the following factors are of crucial importance:
– Idle/play time;
– Combining factors that have not been combined before;
– Atmosphere where experimenting (or put it another way: critical thinking) is possible.
Based on these assumptions are my hypotheses:
– Most students work too hard and too long and learn too much by rote (learning by repetition) to develop their creativity;
– Many students limit themselves by focusing exclusively on what is relevant, but often it is hard to know ex ante what the ingredients for success are going to be, and following the downtrodden path is not helpful for making new combinations or to “think outside the box” or to be open to serendipity;
– Most schools do not give enough room for experimentation;
– Although there are many ways to Beijing, parents, teachers and society at large expects students to excel and go to the Chinese Ivy League schools and universities. This puts students under immense pressure.
Of course these Hypotheses need to be tested.
I am interested in your views. Let me know. ipdragon at gmail dot com.
UPDATE:
IP Dragon thinks this educational problem is shared by countries such as Singapore, Korea and Japan. Since these countries are no longer known for their rampant infringements of intellectual property rights the explanation becomes more convincing that China’s low level of intellectual property enforcement is caused by the developmental phase it is.
UPDATE 2:
Carven, a student of St Joseph’s College in Hong Kong, and member of the project affairs department of the 43rd Joint School Science Exhibition Preparation Committee wrote in the Young Post of the South China Morning Post of November 18, the article ‘Lack of Creativity Limits Knowlegde’.
“The educational system in Hong Kong – in which students are spoon-fed information – has often been criticised. It leads to students having no idea how to be creative in the pursuit of knowledge.”
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IP Dragon’s Book Review: Invisible Gold in Asia

Professor David Llewelyn (King’s College London and IP Academy, Singapore) wrote an exceptional book that will appeal to both laypeople and IP professionals. Although Invisible Gold in Asia does not aim to be a scholarly book (for example there are no footnotes), the book could not be written by a non-scholar. For laypeople the book lays out the intricacies of intellectual property rights and their relationships to wealth creation, a topic incredibly comprehensive and therefore almost unmanageable, in digestible parts. For the IP professionals the book is a treasure of anecdotes worth knowing and sketches the whole field of IP in Asia, and thereby giving some crucial context even to IP professionals, since most of them cover only some part of intellectual property rights, and their focus is often geographically limited. Professor Llewelyn’s educational capabilities are charged by years of teaching a critical mass of students. Therefore when he touches upon a complex subject, he goes just deep enough into the matter to convey the essence of the subject. When you read the easy flowing book, you will notice that Professor Llewelyn not only wants to illuminate the obscure world of IP, but he has a message as well: basically he wants to wake up everybody inside and outside of Asia that IP, will be of crucial importance for Asia in the coming years. Professor Llewelyn rightly divides two markets for the world of IP: the USA and the rest of the world. But the role of Asia and the role of IP in Asia will become ever more important. And he tries to make the reader aware that IP rights are not mere liabilities, but they could be valuable assets. The book is structured in two parts. In part I Professor Llewelyn is going on a tour de force as he gives an overview of all intellectual property rights and their different characteristics. He can do this like no other, see here. In part II he gives describes the Asian IP landscape: Japan, the Little Dragons/Tigers (Taiwan, Hong Kong, Republic of Korea and Singapore), China, India, Malaysia, Indonesia, the Philippines, Thailand, Sri Lanka, Pakistan and Vietnam, Bangladesh, Laos, Cambodia. My favorite chapters where about the Little Dragons (or Little Tigers) and China. Professor Llewelyn sketches in a few sentences a mini-biography of some highly interesting Chinese companies with iconic brands and IP, such as Li Ning, Haier Group, Mengniu, Huawei, ZTE etc. Before the text Professor Llewelyn put a great maxim: “Don’t make the mistake of thinking something is valuable merely because you can measure it. It is far better to work out what you can value and then see if you can measure it.” That same maxim could not only be applied to IP, but to reading a book such as Invisible Gold in Asia as well.
If you want to get an overview of IP in Asia, this is the book to read. If you are an IP professional the book is the perfect present to give to clients, so that they can learn about the importance of IP, or to give to your spouse, or friends, so that they can get a clue about what you are doing.
Invisible Gold in Asia, Creating Wealth Through Intellectual Property, can be bought at Marshall Cavendish Business.
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Film Work Collective Copyright Management Use Fee Transfer Payment Rules

Remember that the National Copyright Administration of China (NCAC) promulgated rules for operators of internet cafes, planes, trains and automobiles have to start pay royalties for showing Chinese movies to the China Film Copyright Association. Read Hard Choice? Chinese Internet Café Owners/Transport Operators Can Choose Paying for Chinese Movies Or Using Free Pirated Movies.
IP Dragon’s friend Rogier Creemers translated the Film Work Collective Copyright Management Use Fee Transfer Payment Rules, read here.
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SOSFakeFlash Cannot Forget: “Fighting Toward A Fake Flash Drive Free World”

SOSFakeFlash, is an interesting initiative. It is a site fighting “Toward a Fake Flash Drive Free World – No More Counterfeits – No More Data Loss” where people can report vendors of fake flash USB drives and MP players.
For example according to SOSFakeFlash liaoqin_25688, registered in China, is an eBay seller of counterfeit Flash USB drives and MP players. So eBay buyers are warned. Of course liaoqin_25688 can start under another name again. The real solution seems to be in a real name validation system.



“As much as financial help is desperately needed for the project – sorry we will not accept or take nay funds from sellers to be on the list [of safe sellers]. The issue is integrity and ethics. Many of us come from an era where those two qualities MATTER! That generation can not be “bought”!

Read more here and the Global Report eBay Fake Memory 2008-2009, here.
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Fake Medicines Advertised on Taiwanese TV, Radio and in Newspapers

Taiwan’s Health Minister Yang Chih-liang warns that the public should not believe TV, radio and newspaper advertisments selling fake pharmaceuticals. Minister Yang called the proliferation of counterfeit drugs more serious than drug trafficking.

Read the China Post article here.
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November 17: USCC Report about Indigenous Innovation, WTO and Disclosure Requirements

U.S.-China Economic and Security Review Commission (USCC) will release its 2010 Report to Congress at a press conference Wednesday, November 17.

Among the topics in the 316-page report will be about:
National defense and foreign affairs and energy and environmental issues.

But also about economic, trade and censor issues:

  • China’s ‘indigenous innovation’ policy to promote favored industries and limit imports;.
  • China’s past and future role in the World Trade Organization;
  • How China’s revised state secrets laws may conflict with U.S. disclosure requirements and put U.S. investments in Chinese firms at risk.
UPDATE November 18, 2010: report has been released, read more about it here.

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How To Get The Copyright When You Commission a Work in China?

Xu Hui-Meng of the Henan University of Finance and Economics, Zhengzhou, wrote in May of 2010 the article: ‘The research on the nature of the agreement of the ownership of the copyright of the commissioned works‘ for the Journal of Guangxi Administrative Cadre Institute of Politics and Law (广西政法管理干部学院学报), volume 25, number 3.

Abstract:
“The copyright of commissioned works [has] important contract terms. The nature of the ownership of copyright agreement is related to the client to obtain the copyright, the trustee obligations and the balance of the interests of both sides. The client gets the copyright through the commissioned works contract that is called achieving by the following. As a result of the invisible works and lack of copyright registration system , the Trustee fulfills his obligation by the legal presumption of copyright transfer. The transfer of the copyright happens with the creation of the commissioned works. The writing contract of the Commissioned works often becomes public means of copyright transfer. Payment from the client and the copyright transfer from the trustee constitute the consideration that impacts copyright transfer.”
Read Xu’s article here (pdf in Chinese). Picture Danny Friedmann, Yangshuo, Guangxi Province.
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Message of Blog Urges State Bureau of Surveying and Mapping “To Clarify” Intellectual Property Rights Position


Jia Li of the People’s Daily reported that the State Bureau of Surveying and Maps (SBSM) announced that the Map World, a Chinese public platform for national geographical information was released on October 21, 2010 and was considered a web service independently developed by China.

Jia Li writes: “But one Chinese person raised doubts about this on a blog the next day, saying the satellite maps used in Map World most likely come from the U.S.-based DigitalGlobe, which is the satellite imagery provider of Google Maps.”
“SBSM clarified that the independent intellectual property of Map World refers to the online service software, but not data resource like the satellite imagery itself.”
Read the People’s Daily article here.
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Wise Advice From the Aeronautics Industry about IP

Boeing and Airbus see new competitors approaching, which includes China’s Commercial Aircraft Corporation of China Ltd. (Comac) although whose inaugural model C919 might not be competitive outside China, for now.
Carolyn Corvi, board member at aircraft supplier Goodrich Corp. was quoted by Aubrey Cohen as saying: “The realization and reality is you can’t always protect everything [in regard to intellectual property rights]. The winners will be the ones keep advancing the technology so they always step ahead of the competition.”
Read Ms Cohen’s article for Seattle PI here.

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China’s Efforts To Promote a Culture for IPR and IPR Exploitation

Zhong Yonghua, official of the Legal Affairs Department of the State Intellectual Property Organisation (SIPO) gave a presentation at the Asia-Pacific Economic Cooperation (APEC) Forum in the Japanese city Sendai, last September, 2010, which included information about how China is promoting the exploitation of intellectual property in China, see here.

  • China’s Patent Industrialization Project; 13 State Patent Commercialization Pilot Bases have been established by 2009;
  • IP Pilot Parks and IP Demonstration Park; 35 Parks have been established by 2009;
  • IP Pilot Companies and Organizations; about 1,000 IPR enterprises have been established by 2009.
  • China’s Patent Technology Exhibiting and Trade Center; 42 Centers have been established by 2009;
  • China’s Patent Exhibits;
  • Promotion of IPR Pledge.
He also covered how China is fostering a culture for IPR:
  • SIPO official portal (daily hits 10 million);
  • China Intellectual Property News;
  • Wealth of Knowledge (TV program);
  • China Inventions and Patents Magazine;
  • From “the World IP Day” to “IP Week”;
  • Open Day of SIPO;
  • Media Joint Action action—“Protecting IP, we are in action ”
  • CCTV Innovation Gala;
  • Chinese Patent Information Dissemination Platform.
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Professors Feng, Liu, Li, Lee and Sun: Enhanging IP Protection in Greater China

The University of Hong Kong organised another great event: Enhancing intellectual property protection in Greater China: Contemporary Issues and Critical Analysis.


Professor Kung-Chung Liu, research fellow, Institutum Jurisprudentiae, Academica Sinica: spoke about “ECFA and IPR protection between China and Taiwan”.
By some the agreements, although non-binding, are seen as a Trojan horse, that will further incorporate Taiwan into “Greater China”.
Professor Liu spoke about two agreements that were signed June 29, 2010:
– Economic Cooperation Framework Agreement (ECFA) 兩岸經濟合作架構協議(定);
– Cross-Strait Cooperation Agreement on Intellectual Property Rights (IPR) Protection.
Both agreements came into effect September 12, 2010.
Chapter 3 of EFTA is entitled Economic Cooperation
Article 6 Economic Cooperation
1. To enhance and expand the benefits of this Agreement, the two Parties have agreed to strengthen cooperation in areas including, but not limited to, the following:
(1) intellectual property rights protection and cooperation;
(2) financial cooperation;
(3) trade promotion and facilitation;
(4) customs cooperation;
(5) e-commerce cooperation;
(6) discussion on the overall arrangements and key areas for industrial cooperation, promotion of cooperation in major projects, and coordination of the resolution of issues that may arise in the course of industrial cooperation between the two Parties;
(7) promotion of small and medium-sized enterprises cooperation between the two Parties, and enhancement of the competitiveness of these enterprises;
(8) promotion of the mutual establishment of offices by economic and trade bodies of the two Parties.
2. The two Parties shall expeditiously conduct consultations on the specific programs and contents of the cooperation matters listed in this Article.
Professor Liu gave an overview of the relations between Taiwan and China and the growing importance of the trade between the two. Professor Liu: “Taiwan and China developed differently; in Taiwan the state has become a neutral arbitrator for business, not a player in the economy as is the case in China.”
Another difference professor Liu points out is that the Taiwan Intellectual Property Organisation (TIPO) is a single and unified organisation for the protection and enforcement of intellectual property in contrast to China that has a complex and convoluted system of many organisations (SIPO, SAIC, NCAC, AQSIQ, GAC and many many more).
The political problems between the two sides across the Taiwan Strait cause also problems related to property protection in China which have to be tackled with a separate agreement on IPRs: Cross-Strait Cooperation Agreement on Intellectual Property Rights (IPR) Protection, which you can find on the site of Tsai, Lee & Chen here.
– (I) Coordination target
– (II) Priority rights; Taiwanese companies had trouble getting their patents granted in China, because when they tried to get a patent in both Taiwan and China, SIPO could reject the Chinese patent, because there was a novelty defect. So in the separate IPR agreement China will grant priority to Taiwanese applications, so that the Taiwanese application can used as first application date so that there will be no problem with novelty. There will be also priority rights for trademark rights and plant variety rights. Of course Taiwan will also grant priority rights to China.
– (III) Variety rights; Before there were no breeders rights for fruits in China, only for crops. Fruits are very important for Taiwan. There will be a consultation to expand the scope of plant varieties in China to include fruit as well.
– (IV) Examination and cooperation
– (V) Industry cooperation, in the patent and trademark industries.
– (VI) Authentication Service; copyrighted works needed to be first certified in Hong Kong. This procedure will be streamlined. If the audi0-visual products are published on the other side, copyright should be authenticated by related associations or groups appointed by the side holding the copyright. Both sides exchange opinions in connection with the establishment of the authentication system of books, computer programmes and other works. Collecting societies of both sides will have access to each others markets.
– (VII) Coordination and treatment mechanism;
1. to combat piracy and counterfeits, especially infringement online and offline.
2. to protect well-known (famous) trademarks, geographical indications or well-known names of origin places. Before some famous Taiwanese geographical names have been registered in China. Also some famous Taiwanese trademark names such as Chunghwa Telecom and Taiwan Beer cannot be registered in China, because article 10 Trademark Law of the People’s Republic of China prohibits that signs identical or similar to the state name (Chunghwa is Taiwanese spelling for Zhongguo, which means China) or a province (Taiwan is considered a province by China) as a trademark. In addition they agree to prevent cybersquatting.
3. Strengthen market supervision and crackdown of fake indications or origin places of fruits and other agricultural products.
4. Protect other IPRs (rest category).
Professor Liu said that the agreements are non-binding and that one can anticipate that it will usher in more trade agreements and agreements with binding dispute settlement procedures.
Taiwan does not need to be afraid it becomes part of China; Canada is not part of US, because of NAFTA. More trade cooperaton the better prospects for peace.
Dr. Yahong Li, University of Hong Kong: “How Patents Affect Innovation in China”
Dr. Yahong Li just finished a book called ‘Imitation to Innovation in China: the Role of Patents in Biotechnology and Pharmaceutical Industries‘ about patent law in the pharmaceutical industry to which she wrote seven years. She spoke not only about biotech and pharma patents in China, but also about the IT and automotive industry patents in China. Dr. Li started juxtaposing research that proves that patents work to research that proves it does not. And then about patent law in developing countries. She demonstrated the enormous growth in patent filings and grants. Per industry. China might have a high tech capacity in one sector, but not necessarily in the other. Dr. Li mentioned also the Boston Consulting Group’s 5 phases of intellectual property development.
1. Driving growth through exports;
2. Climbing the value ladder;
3. Paying the price (for not protecting IPRs sufficiently);
4. Getting serious about intellectual property;
5. Profiting from intellectual property.
See David Michael et al, Beyond the Great Wall, Intellectual Property Strategies for Chinese Companies, Boston Consulting Group, January 2007.
I have not read Dr. Li’s book yet, but I am planning to. Based on her presentation I am positive that her seven years of scholarly labour has resulted in a book that has a wealth of information about biotech and pharma patents in China.
Ms Alice Lee, associate professor of the University of Hong Kong: “Intellectual Property on the internet – Misuse or Abuse of the Commons”
Ms Lee raised the point that not only ignorant people violate copyright law. Well-informed publishers have joined this club.
Hong Kong has one of the strongest copyright regimes in the World. In Hong Kong there are only three categories of Fair Dealing:
Section 38 HK Copyright Ordinance: research or private study;
Section 39 HK Copyright Ordinance: criticism, review or news reporting;
Section 41 HK Copyright Ordinance: things done for instruction or for the purposes of examination.
Ms Lee points to a case that excludes a Fair Dealing defence:
The Hong Kong newspaper Apple Daily called Ms Lee about ‘A Speaking Map of Hong Kong’ (a book with pictures and a CD that had stories with the pictures about HK), which used Wikipedia photos that were licensed under Creative Commons license. The publisher did not make any acknowledgments and thus infringed the copyrights of the photos. That the publisher apologised did not make Ms Lee much happier about the case.
To comment on the book, a copy was found in Mongkok.
Despite this case, Ms Lee still believes in the future of CC and told enthusiastically about CC’s history and the different licenses. She helped Creative Commons come to Hong Kong and port it to the Hong Kong copyright ordinance. See ‘Creative Commons Hong Kong Launch‘.
Ms Lee asserted that there is a development that moral rights (including getting credits for your creation) become more important online then the exploitive copyright use.
She also told about the HK government’s consultation report, which recommended to make media shifting legal. However, there is still no legislation, despite the fact that its use is ubiquitous.
Professor Peter Feng, also known as Feng Xiang, Mei Ru’ao Chair Professor of Law, School of Law, Tsinghua University in Beijing gave some thought provoking comments:
Professor Feng, who is the author of the excellent book ‘Intellectual Property in China’, 2nd edition, Sweet & Maxwell, 2003′, talked about the failed business strategy of publishers. Professor Feng: “All of my books are on the web. In the beginning I tried to do something about it. I have given up.”
However Professor Feng is optimistic: “Many authors in China like that their works are first published online, and then the public is getting interested. So they first serialise their books via blogs, then via hard copy. So they will get derivative rights.”
Professor Feng: If you look at the economic financial crisis, you see that Chinese companies suffered only for a short period of time. This is because Chinese companies have a much more flexible business strategy. There are not bound by legal rules, not bound by IPRs.
So in the case of the infringing Hong Kong book company, it was only one step behind companies from China. They just made one mistake; they published it in Hong kong. If they published it in China first, probably they would have great success. “
Professor Feng: “If we look back to China, growth of capitalism has not much to do with copyright. Bill Gates does not care much about IPR. Microsoft encourages copyright infringement in China, to spread the use of their software. So that indigenous innovations can be suppressed.”
According to Professor Feng business models that make use of personal relationships (read politics), free access to the content, and encouragements of infringement to suppress competition, will work in China.
Professor Feng also commented on ECFA. “It is a great framework, not mainly because of the legal aspects, but exactly because of the two sides have such great political problems. We will find a dispute business settlement system. IPR becomes frontier of cross-strait relationships.”

Haochen Sun, assistant professor of the University of Hong Kongmoderated the event with his usual wit and flexibility.

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IP Enforcement in China: IP Dragon’s Presentation

This author (middle in the picture) gave a presentation at the 2nd Annual IPR seminar “Managing your IPR as a Business Asset” at the Hong Kong Convention and Exhibition Centre on June 25, 2010, which was funded by the European Union Business Information Program (EUBIP) and the China IPR SME Helpdesk.

Long overdue, but here are the IP Dragon’s presentation slides about IP Enforcement in China (pfd). I tried to visualise the relative thresholds to enforce criminally, civilly and administratively.
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Hard Choice? Chinese Internet Café Owners/Transport Operators Can Choose Between Paying For Chinese Movies Or Using Free Pirated Foreign Movies

Starting January 1, 2011, the China Film Copyright Association (CFCA) will charge money for the use of film works in internet cafés, on airplanes, ships and in buses and trains. They will start with eight municipalities and provinces, including Beijing, Shanghai and Jiangsu. Read the China Daily article here.

October 14, 2010, the National Copyright Administration issued two regulations:

  • Films of Copyright Collective Management Fee Charged to Use the Standard’
  • Collective Management of Copyright Works with the Transfer Fee to Pay Approach.
One could expect it, because the CFCA already submitted a Standard of User Charges for Copyright Collective Management of Film Works, see here. Alice Xin Liu writes that “[t]he Dongguan Times went with a really innovative design, issuing a fake letter from the China Film Copyright Association.” Read her interesting story at the always excellent Danwei.org, here.
Then Xinhua runs a story entitled: ‘China’s New Film Royalty Rule Stirs Debate‘, and quoting one angry internet cafe owner in Chongqing municipality and another in Beijing.
Bad for foreign films, bad for Chinese films
IP Dragon is concerned that the owners of internet cafés and the operators of planes, trains, ships and buses are not charged for showing foreign films. This is not only discriminatory to foreign film makers, and in violation of international treaties, but it will hurt the fledgling Chinese film industry. There is not really fair competition if you have to pay for Chinese films and foreign pirated films you can use for free. The National Copyright Administration of China has already announced that this will not change in the near future. Maybe Hollywood, Bollywood and the European filmindustry can change their opinion.
UPDATE 2 November 2010
The China Film Copyright Association has invited foreign film copyright holders to cooperate on the issues of royalties and piracy. Read Clifford Coonan’s article for Variety here.
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International Intellectual Property Summit in Hong Kong

Interpol, Hong Kong Customs & Excise Department and Underwriters Laboratories hosted the International Intellectual Property Summit in Hong Kong

One of the speakers on October 18, was the US attorney general, Eric Holder. Besides, emphasising the consequences of counterfeiting and piracy he explained the framework in the US that should improve IP enforcement internationally:
– White House Intellectual Property Enforcement Coordinator, Victoria Espinel;
– National Intellectual Property Rights Enforcement Center, led by US Immigration and Customs Enforcement;
– Justice Department’s Task Force on Intellectual Property.
– Intellectual Property Working Group on the U.S.-China Joint Liaison Group for Law Enforcement Cooperation.
Read the text of Mr Holden on the site of the U.S. Department of Justice here.
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Acrobats Show The Way of Doing Business in China: Register IPRs and Join Competition (No Need To Be Contortionist Though)

You have to have courage when you come to China, the cradle of incredible acrobatics, and vie for attention for your own acrobatic performances. Cirque du Soleil lacks no self-confidence, meticulously prepared and is now ready for any competition. Nick Rockel wrote an article for Canada TV (CTV) how the world renowned Canadian performances company is not only using its talents for its acrobatics (including local talent), but also for doing business in China: ‘Cirque du Soleil draws on China’s deep well of talent.’

Mr Rockel quotes Sarah Kutulakos, Executive director and Chief Operating Officer, Canada China Business Council: “But I do find that many companies take a bit of a myopic approach to it, saying, ‘I don’t want to go to China. Somebody will copy me.’ Your product is on the international market. If they want to copy you and your product is good, they’re going to go buy one and reverse-engineer it and copy it anyway. So get to China, register your IP, and work in a very competitive environment, because it will make you stronger.”

Or as Friedrich Nietzsche’s put it: “That which does not kill us makes us stronger.”

IP Dragon concurs, in this time and age it is increasingly more difficult to keep your inventions and innovations secret. Next to intellectual property rights, the first mover advantage and continuously improving the product or service is the key to consolidating and expanding market share. Talented football players that are not playing any competition matches because they are afraid for injuries, will not reach their full potential. Registering IP is like playing with protective shin guards and a referee.

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Surrealistic Copyright Infringement During Design Contest TIPO: Work Shattered, But the Truth Came Out

China National News reported the most surreal news IP Dragon has read for a long time. The Taiwanese Intellectual Property Office (TIPO) organised a design competition. The purpose was to make the public respect the intellectual property of other people. The Taiwanese student Wu Chih-Wei won the contest with ‘Work – shattered’ a design of a paper plane that was crashing because its tail was broken off. Wu received a medal and 5,000 Taiwanese dollar.
Then somebody recognised the design as being a copy of a design called ‘Truth’, made by Dutch designer Dennis Sibeijn, and Wu had to give everything back. In a way Wu succeeded in the purpose of the contest in winning by copying and then after the revelation crashing, as the paper plane design he copied. And after all the purpose of the contest was to make the public respect the intellectual property of other people, not to respect intellectual property yourself.
See Dennis Sibeijn’s website DAMNENGINE.
Read the China National News report here.
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Swiss Watches: 50 Percent Chinese, 50 Percent Swiss

When can you call a watch a Swiss watch?

– its movement is Swiss, cased up in Switzerland and the manufacturer carries out the final inspection in Switzerland.
– a watch movement is Swiss if the movement has been assemled in Switzerland, the movement has been inspected by the manufacturer in Switzerland, the components of Swiss manufacture account for at least 50 percent of the total value, without taking into account the cost of assembly. Read more about the 50 percent rule on the site of the Federation of the Swiss Watch Industry (FH).

Felix Addor, deputy director general of the Swiss Federal Institute of Intellectual Property is not happy with the 50 percent rule for “Swiss made”. Neil Gough of the South China Morning Post (SCMP) quotes him saying: “This situation could lead to an insidious dilution of the [Swiss-made] designation, which is damaging for the image of Swiss watches because consumers expect more.”
The draft legislation that must lift the percentage of Swissness of the watch to 60 to 80 percent already started in 2007 and is finally under review by the legal commission of the Swiss National Council.

Mr Gough of the SCMP wrote that China and Hong Kong are respectively Switzerland’s first and fourth most important markets in the world. Switzerland imported 2.05 billion US dollar of watches and related components last year by customs value, according to UN commodity trade data. Mr Gough quotes Jean-Daniel Pasche, president of FH that when it comes to China, protecting both the watch brand and the Swiss national marque are major concerns. FH helped with the seizure of about 600,000 counterfeit watches in China, in 2009, out of a total of one million fake watches, seized globally.
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Happy Mid-Autumn Festival!

First of all Happy Mid-Autumn Festival 中秋節 to you all! For those of you who did not have the pleasure of staring to the moon together with hundreds of picknicking and moon cake eating families in Victoria park here is a quick primer of the event.

IP Dragon was delighted to receive an email of Professor Peter K. Yu, who revisited the DS362, ‘Measures affecting the protection and enforcement of intellectual property in China in a paper called “The TRIPs Enforcement Dispute“. Professor Yu recommends everbody who needs to devise a strategy to improve the enforcement of IPRs in China the following principles:

1. Understand provincial and local differences;
2. Take the long view;
3. Appreciate local solutions on their own terms;
4. Don’t hide the ball (market access disputes should not be framed as intellectual property violations);
5. Beware of difference engineers (who make differences look bigger than empirical anyalisis justifies).

These principles sound all very sound to me. If you are interested in the subject of whether China is compliant to TRIPs you might want to read my thesis (of which Professor Peter K. Yu was the co-advisor).

More good news: IP Dragon, your purveyor of anything related to IP in China, was selected by the U.S. Library of Congress to be archived. The process will start next Tuesday and you can also find IP Dragon as of October via the Library of Congress.
Picture: Danny Friedmann
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Chinese Coffee Cats, Obscene Brand “Star Tuuuut” and the Difference Between B and F

Do you remember the Starbucks versus Xingbake case? See here. But there are many more coffee(copy)cats in China, see here. Confusion between the Starbucks and Star tuuuut might has a lot to do with culture or rather language. Confusion might not be so big in Western countries (although it was about the tort: passing-off and dealt with an unregistered trademark in a Common Law country, it reminded me of the Advocaat case), but for many Chinese the difference between a B and F in the second syllable might not have a big impact on the total picture of the word.
IP Dragon received this picture of a coffee shop in China. Not completely PC but then again it’s Friday.

Thank you P.

TGIF, so have a good weekend!
IP Dragon

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