Two Sino-Swiss Memoranda of Understanding on IP and upgrade of FTA

Bern 16 January 2017, Diedier Burkhalter (Federal Councillor) and WANG Yi (Minister of Foreign Affairs) signed a Memorandum of Understanding (MoU) between Switzerland and China.

The text of the MoU consists of laudatory calls to cooperate, and only a commitment to “determine the detailed activities”. The most interesting point was that the parties endeavor to exchange of information and views on the latest developments of their respective IP system and the legislation and administrative procedures. With China’s scattered way of promulgating rules and regulations different legal channels, such as the Supreme People’s Court, the State Council, State Administration for Industry and Commerce, State Intellectual Property Office and several provincial courts, to make this more transparent is a daunting task. The results of the meetings, that will be held in both countries, and will be summed up in the minutes, will be especially attractive to peruse. Whether these will be made public is the question.

 

On the same day, the Chinese Minister of Commerce Gao Hucheng and the Head of Department of Economic Affairs, Education and Research of Switzerland Johann N. Schneider-Ammann signed The Memorandum of Understanding between the Ministry of Commerce of China and the Federal Department of Economic Affairs, Education and Research of Switzerland on the Upgrading of China-Switzerland FTA, announcing that the joint study on China-Switzerland Free Trade Agreement (FTA) upgrading was launched. The China-Switzerland FTA was signed by the same people in July 2013 (after another MoU), and was implemented in July 2014.

 

In the existent Sino-Swiss FTA IPRs (Chapter 11 (page 60) and Annex IX in connection with Article 11(10) of Chapter 11) the countries committed themselves to protect the level that is prescribed by those international treaties that both have in common. This means that for example even though in Switzerland the copyright duration is 70 years after the death of the author, the protection level between the countries becomes 50 years after the death of the author, because that is the duration of copyright in China. However, besides “lowest denominator” standards some important changes were made:

 

  • Protection must be provided for acoustic trademarks as a new category of trademark;
  • In the field of patents, the patentability of biotechnological inventions is specified in accordance with the European Patent Convention;
  • Furthermore, the Parties may require in case a patent application is filed and the invention is based on genetic materials or traditional knowledge, such materials and knowledge are indicated;
  • The confidentiality of test data in relation of marketing approval procedures for pharmaceutical and agro-chemical products must be protected for at least six years;
  • The level of protection for geographical indications for wines and spirits under Article 23 TRIPS (this means that the anti-usurpation where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as “kind”, “type”, “style”, “imitation” is still prohibited) is extended to all products;
  • Goods and services must be protected from misleading indications of origin;
  • Country names, national flags and coats-of-arms of the Parties must be protected from misleading use and registration as company or brand names;
  • Compared to the UPOV Convention (1978 version, of which China is a signatory) the protection for new varieties of plants is extended to the exportation of such varieties. In the 2016 revision of the national list of protectable varieties China declared that it is prepared to give priority to certain plant varieties which are important to Swiss industry.

 

Let us see how both countries will upgrade IP protection and especially enforcement to which they will commit themselves in relation to each other.
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Switzerland and China Keep Working On IP Protection/Enforcement

April 8, 2016, President Johann Schneider-Ammann, the Swiss President met with Zhang Dejiang (张德江), Chairman of the Standing Committee of the National People’s Congress in Beijing. According to China’s state-news agency Xinhua, Zhang “called on the two countries’ parliaments to strengthen mutual learning in the legislation of intellectual property protection, innovation and entrepreneurship as well as vocational education.” China can also benefit from Swiss expertise on eco-agriculture, environmental friendliness, branding innovative and quality products.

 

Of course a Swiss-Chinese Dialogue on IP is going on since at least 2011 and culminated in an informal mechanism for complaints of Swiss companies regarding IPR infringements on the Internet in 2014, see here.

 

According to the Swiss Customs Administration 71 percent of counterfeit goods originated from China in 2015. See more here.

 

Price and place of purchase are often good indicators of whether a product is a counterfeit. For example one can expect that the Victorinox Swiss Army Knife ‘Champ’, is a counterfeit if it costs 8 US dollar while it normally costs 99 US dollar, and is available via an online market instead of via a licensed outlet. See the Counterfeit Report.

 

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Are China and Switzerland both dragons? “Suan Long” (Double Dragon) restaurant in Zug, Switzerland. Photo: Danny Friedmann Copyright 2016


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Things to do in the Summer, CHECK: WTI/CUHK Summer Programme on Intellectual Property in HK

IP Dragon spent his holiday participating in the WTI/CUHK Summer Programme on intellectual property, indeed co-organised by the World Trade Institute in Bern and Chinese University of Hong Kong, from July 9 -20.

 

The coming days I would like to give you an overview of some of the things, relevant to intellectual property rights in China and Hong Kong, I learned from professors Thomas Cottier (WTI) see here, Arno Hold (WTI), Michael Pendleton (CUHK), Bryan Mercurio (CUHK), Peter K. Yu (Drake University), Elliot Papageorgiou (Rouse), Mathias Schaeli (Swiss IPI), Philip Monaghan (Mayer Brown) and last but not least Ron Marchant (former head of IPO UK).  Beside getting updates on bilateral and multilateral treaties, WIPO, WTO, law in China and Hong Kong, the event brought professors together from Bangladesh, China, India, Indonesia, Laos, South Africa, Switzerland, Trinidad and Tobago, and Vietnam, to discuss intellectual property and policy issues.

 

 

 


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Demystifying Intellectual Property Rights With Professor David Llewelyn

Professor Llewelyn before a scholarly audience, including professor Barton Beebe on the right

 

 

Professor David Llewelyn’s latest presentation did not miss to resonate with a scholarly audience. The earlier presentations IP Dragon attended included the highly relevant topic such as “Leveraging your IP” and testified an ability to clarify in a concise way, such as explaining all IP in one hour.  This time professor Llewelyn spoke at the ‘Charting the New Frontiers of Intellectual Property Protection of Luxury Brands’, June 16, 2012 at HKU.

 

 

IPR is getting too complex

As the last speaker of the day professor Llewelyn gave his view unapologetically on the previous presentations which included a deluge of social theories:  “Veblen? Intellectual property rights are already too complex.”
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Swiss Watches: 50 Percent Chinese, 50 Percent Swiss

When can you call a watch a Swiss watch? According to the Swiss law (Verordnung vom 23. Dezember 1971 über die Benützung des Schweizer Namens für Uhren) when: – 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 […]

China and ACTA: Why Is The Problem Not Made Part Of The Solution?

Medio December 2008 IP Dragon wrote about the controversial genesis of the China-less Anti-Counterfeiting Trade Agreement (ACTA) by Japan and the US (joined by Australia, Canada, the European Union, Mexico, Morocco, New Zealand, Republic of Korea, Singapore and Switzerland) whose goal it is to stem the tide of counterfeit and pirated goods that originate for […]

EU Will Not Support US WTO Piracy Case: Good Cop Approach

The EU is not joining the US in filing formal complaints at the WTO in Geneva against China for inadequate copyright and trademark rights enforcement. Although the EU agrees with the WTO case against China in substance, it is not willing to burn its fingers, anxious for economical retaliations. Ben Blanchard of the Guardian Unlitited […]