In 2008 China launched a comprehensive National IP Strategy, read ‘Feasible Commitments or Road To Nowhere Paved With Good Intentions‘.
In my thesis ‘Paper Tiger or Roaring Dragon‘ I come to the conclusion that the lack of effective enforcement of intellectual property rights in China can be partly explained by some extra-judicial factors, such as:
About 100 websites, among others Sohu, Baidu and Youku have signed a declaration of copyright self-regulation. Rogier Creemers translated the declaration. Thank you.
“Chinese companies still copy a lot of foreign design. The most important thing for China is that its businesses learn the importance of design and start designing for themselves.” Read the whole article ‘Brand Politics’, in which yours truly was interviewed by Adam Smith for World Trademark Review here (pdf).
How would China change its article 4 Copyright Law after the panel decision in the World Trade Organization’s Dispute Settlement (DS 362) case determined that that provision was not compatible with China’s obligations under the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) and the Berne Convention for the Protection of Literary and Artistic Works?
IP Dragon’s friend Rogier Creemers sheds light on the matter:
October 9, 2009 the Beijing Intellectual Property Office, subsidiary of SIPO for the Beijing Municipality promulgated a circular on Applying for Special Funds for Financing Patent Applications in Foreign Countries.
The World Intellectual Property Organization (WIPO) published statistics of the number of Patent Convention Treaty (international patent) applications worldwide. China’s PCT applications from 2008 to 2009 rose an estimated 29.7%, to 7,946 applications, estimated for 2009.
The top PCT applicants of 2009 include two Chinese providers of telecommunication and network solutions:
Rank 2: Huawei Technologies Co., Ltd.: 1,847 PCT applications published in 2009
Rank 23: ZTE Corporation: 502 PCT applications published in 2009
The Economist made a nice visual representation of those WIPO statistics, see here. You see that China ranks fifth, just behind the US, Japan, Germany and South Korea and before France, Britain and the Netherlands. The Economist wrote: “Since 2005 applications from China have grown by 210% as the country has developed a home-grown high-tech sector.”
Domestic patent applications: According to WIPO statistics of 2008, China is after the US and Japan the third biggest receiver of domestic patent applications. Read more here.
The statistics of the number of PCT or domestic patent applications are interesting, but of course the number of patent grants are more interesting.
Jia Lu, affiliated with Tsinghua University and Ian Weber, affiliated with University of Southern Queensland, Australia wrote an interesting paper called: ‘Internet Piracy Software in China: A User Analysis of Resistance to Global Software Copyright Enforcement’.
Jia Lu and Ian Weber try to find reasons for why the Chinese accepted global copyright law, but also resist it at the same time. “The study uses Mittelman and Chin’s (2005) framework of Polanyi’s (1957) counter-hegemony and Gramsci’s (1971) counter-movements as a heuristic [commonsense rule (or set of rules) intended to increase the probability of solving some problem: IP Dragon] device to conceptualize the resistance points to globalization located within the dominant discourse on intellectual property rights, specifically Internet software piracy, by Chinese Internet users. Gee’s (2002) discourse analysis framework is applied to produce seven recurring themes within online postings: cost, convenience, software companies, foreign developed countries, China’s development, Chinese culture, and moral dilemma.“
Read the paper of Jia Lu and Ian Weber, ‘Internet Software Piracy in China: A User Analysis of Resistance toGlobal Software Copyright Enforcement’, Journal of International and Intercultural Communication, November 11, 2009, 2: 4, 298 — 317 here.
Alan Adcock, deputy director of Thai law firm Tilleke & Gibbins, has worked before for Lovells and Rouse & Co. International in both Shanghai and Hong Kong, wrote the article: ‘5 Essential Steps to Acquiring IP in China’.
1. Identifying the technology;
2. Confirming ownership;
3. Assuring non-infringement;
4. Obtaining further assurances;
5. Government approval.
Read Mr Adock’s article here.
Haining Municipal People’s Court in Zhejiang Province set up the Third Civil Division, specializing the trial of civil cases concerning copyright disputes, trademark disputes and other related types of intellectual property rights disputes. Read the article here.
First instance IP appeal cases of TRAB and PRB will be heard by the IP Tribunal of the Beijing No. 1 Intermediate People’s Court. Read the article by Howard Tsang and Lilian Shi of Wilkinson & Grist for Managing Intellectual Property Magazine here.
Scny Eriosscn: looks familiar to you? Counterfeiters use Gestalt psychology to let consumers complete a picture they already have of a genuine brand. I am not sure whether some consumers really deceived into seeing Sony Ericsson, but some might at least be confused. Because of the same Gestalt concept you are probably seeing a triangle on the picture, aren’t you?
Stan Abrams of China Hearsay blogs about Shenzhen Great Dragon Brother’s P88, which is very similar to Apple’s just released iPad. Mr Abrams, never losing his ironical talent wrote about Shenzen Great Dragon Brother’s assertive stance towards IP rights in relation to Apple: “[T]he company apparently filed a design patent, so it’s doing its part to create indigenous IP. All those public education campaigns seem to be working!” Read Mr Abrams’ blog here.
Aritz Parra of El Mundo interviewed Mr Wu Xiaolong, CEO of Great Dragon Brother who said that the P88 has been already on the market in China for half a year and was first presented to the world at the International Electronics Fair in Berlin six months ago. Read the article ”Made in China’ vs Apple: ¿Quién copió a quién?’ in Spanish here.
Earlier, Elaine Chow of Shanghaiist wrote that the P88 was already three months available at the Chinese market, which she calls pre-emtive cloning. Read Ms Chow’s article here.
Sometimes Apple has to deal with knockoffs that are better than the real thing, as was the case with the knockoff MacBook Air, read here. Although the P88 has a bigger screen and a much larger disk drive (P88: 160 GB HD versus iPad: 64 GB Flash) and does multitasking and the iPad does not, the P88 has only a battery life of 1,5 hours, while the iPad has 10 hours. Shardendu Gautam compares the technical features for ThinkDigit, read here.
Yesterday, Song Jiang of the site Shanzai.com, that is following the Shanzai (Shan Zhai Ji = 山寨机 , read more about it here ) phenomenon, wrote:
“Just what will happen when the iPad gets launched in China remains to be seen, but I have a feeling that any presiding court in China might just sway in favor of Great Long. This could cause significant ripples in the intellectual property debate surrounding Chinese-made, and more recently, Chinese-designed products and their increasing penetration of traditionally Western dominated markets.“
Picture by Shanzai.com.
Read Song Jiang’s article here.
Message from IP Dragon
Duncan Bucknell of Duncan Bucknell Company wrote on his IP Think Tank Blog, see here, about an initiative that invites companies that use a certain animal in their logo to make a contribution that that animal does not become extinct. This makes sense. The love should come from two sides, not only from the animal to the company. Of course, IP Dragon is taking heed. To conserve the dragons in China, Hong Kong, Macao and Singapore, and given their special characteristics, I will put them online every time I am meeting one to increase their vitality. And I invite readers of IP Dragon to send their pictures of dragons to ipdragon at gmail dot com, whether the dragon is in a logo or in the wild.
January 30th, 2010, Verna Yu wrote an interesting article for the South China Morning Post: ‘Upset Net Users Show Their Discontent On Censor’s Website’. Ms Yu wrote that the website of the government’s internet censor in Hunan was attacked by hackers, that were, allegedly unhappy applicants for website approval.
The article explains that in China different levels of communication administrations act as supervisory authorities. For example: Sina.com needed about 10 different licenses from different government authorities for providing their range of internet services.
There is a recent regulation that prohibits to host individually owned websites. Only business licensed or government authorised websites can register domain names in China. The Chinese government said that this measure was taken to rein in the spread of pornography, but some allege the reason is to control the flow of information.
Yu Le and Ralph Jennings have an article for Reuters on the PC Magazine website about a Google clone called Goojje.com, probably using Google’s technology without permission, with part of the Baidu logo in its logo. It wants to compete with Google but also wants that Google stays in China. Read more here.
– In June 2005 Shanghai Bu-sheng Music, a branch of EMI in China, filed a copyright infringement lawsuit against Baidu. Baidu was found liable by People’s Court of Haidian District in Beijing for copyright infringement in September 16, 2005. Read more about it in Rouse’s China Intellectual Property Express, Issue 265 here.
– In September 2006 zeven Hong Kong music companies brought a law suit against Baidu at Beijing No. 1 Intermediate People’s Court. Baidu was acquited in November, because it would be merely linking to third parties, see IP Dragon’s post about it here and again Rouse’s China IP Express, Issue 265 here. International Federation of Phonographic Industry (IFPI), the organisation that represented the music companies was going to appeal.
– But in early 2008 three music companies brought a case against Baidu and Sohu/Sogou at Beijing No. 1 Intermediate People’s Court.
The plainiffs were:
However, again all defendants were cleared of the accusations. Read the Reuters article by Kate Holton here.
Marcia Ellis, Jean Zheng and Paul Weiss wrote a concise article about the ‘Safe Harbour Protection in China: How China’s New Regulations Protect the Information Dissemination Rights of Digital Networks’. Please take note that the “new” Regulation on Protection of the Right to Network Dissemination of Information entered into force on July 1, 2006.
The most important rule is article 23:
Article 23 Regulation on Protection of the Right to Network Dissemination of Information:
“A network service provider that provides searching or linking services to a service object, and has disconnected the link to a work, performance, or audio-visual recording infringing on an other’s right after receiving notification from the owner, shall not be liable for compensation; however, if it knew or should have known that the linked work, performance, or audio-visual recording has infringed upon an other’s right, it shall bear liability for joint infringement.“
China’s State Intellectual Property Office (SIPO) reports the following statistics:
SIPO writes that: “First, patent applications maintained steady and relatively fast growth; Second, structure of domestic patent applications and grants was significantly optimized; Third, the volume of patent grants increased rapidly and patent examination capacity was palpably enhanced.“ Read here.
Professors Marcus M. Keupp, Angela Beckenbauer and Oliver Gassmann all connected to the Department of Business Administration, Institute of Technology Management of University of St. Gallen, Switzerland, wrote a very interesting article: ‘Enforcing Intellectual Property Rights in Weak Appropriability Regimes, The Case of de Facto Protection Strategies in China’.
Appropriability are “the environmental factors that govern an innovator’s ability to capture profits generated by an innovation”. It is well known that in the People’s Republic of China enforcement of intellectual property rights can be difficult. So how do managers deal with such a challenging environment? After interviews the authors came to the conclusion that a multifaceted spectrum of strategies exists, which is not mutually exclusive, and that most firms rely on more than one strategy.
The authors categorise the different strategies as:
Read Professors Keupp, Beckenbauer and Gassmann’s article here.
Brian X. Chen is running the China Gadget Guide review for Wired about Chinese MacBook Air knockoffs that are on sale in Shenzhen.
“Chinese knockoffs of the MacBook Air could actually be a compelling option for those desiring the razor-thin form factor of the subnote without paying the premium.“ Read the Wired article here and the China Gadget Guide article here.
The US condom brand Trojan had problems with Chinese counterfeiters, read ‘Born Thanks To Counterfeiters‘ medio 2008. However, it became clear that also other brands are coping with trademark infringements. Usage of these counterfeits can cause serious health problems (sexual transmittable diseases) and unplanned pregnancy, because of substandard quality.
Several, if not all, condom brands in China, including Durex (who has a rather progressive audio advertisement in China, listen here) are hit by the knock-off condoms.
Read the LA Times article ‘China’s latest scandal is counterfeit condoms’ by John Glionna here and the Times Online article ‘Chinese police raid workshop producing counterfeit condoms’ by Jane Macartney here.
According to the Durex Sexual Wellbeing Global Survey 2008, 78% of the Chinese have sex weekly, but only 24% were able to achieve an orgasm everytime they had sex. An explanation could be that the anxiety over whether a condom is counterfeit or not, is probably not conducive to the sexual wellbeing in China. Read more here.
Given human nature, I think abstinence is not an option. So how to protect the protection? How do you spot a counterfeit product? The manufacturers should give tips regularly about this on their websites and maybe a unique number on each package which can be verified at their website. The manufacturer should also make it clear which distribution channels online and offline sell the genuine products.
IP Dragon’s esteemed friend Rogier Creemers is doing a PhD at the University of Maastricht on copyright and media control in China. Below is a guest column of Mr Creemers on Google in China:
Google.cn is threatening to pull out of China, because of “a highly sophisticated and targeted attack on our corporate infrastructure originating from China that resulted in the theft of intellectual property from Google.” Read the official Google blog about it here.
– Of course it is not clear whether Google is bluffing? If they do, China probably would not care less, since Baidu, China’s market leader, is China’s preferred search engine anyways.
– If they don’t bluff, the question is whether the censorship, vulnerability to sophisticated hacker-attacks (hacking does not seem to be a problem exclusively targeted to Google.cn or foreign companies only; days before Baidu was hacked) and the resulting intellectual property theft are the real reasons or whether Google wants to cut their losses after disappointing business results and do not want to lose face?
Many Chinese people have sympathy for Google’s demands to be able to provide unfilitered search results and have laid flowers and wreaths at Google.cn headquarters at Zhongguancun, Beijing’s high-tech centre, which the Chinese authorities called “illegal”. Then again, Joel Martinsen of the always excellent Danwei.org has an article by Gao Youbin who quotes a survey by Huanqiu Online: 70 percent of respondents say that the Chinese government should not give in to Google’s demands, read here (the second part of the ‘Earth-shattering news’).
IP Dragon would love to know what kinds of intellectual property rights were stolen, as Google alleges. Do you know?
Gilian Wong wrote an article for Canadian Press called “China writers’ group says Google ready to apologize, work out deal on book scanning dispute”. Read more here. Hat tip to Jeff Roberts’ McGill’s CIPP IP ‘News This Week‘.
So Google is ready to apologize to China’s writers for scanning the Chinese books (as part of the Google Books project) without asking for permission to the copyright holders, according to China Written Works Copyright Society. Google confirmed that a letter signed by Erik Hartmann, head of Google Books Asia Pacific, was sent to the writers’ society. However, Google insists that the Google Books project is fully compliant with Chinese law.
It’s probably easy to be ready to apologize if there is no reason to apologize. I’ll do anything, when hell freezes over?
Three further remarks:
– Seems Google is adapting to the Chinese yin and yang (complementary opposites) concept quite literally.
– Gilian Wong quoted the letter which says that Google made the “unprecedented move” of making a complete list of the books scanned, in response to a request by the writers’ society. I think it is incredible that this move is unprecendented. Given the character of the whole project, I think it would be fair to disclose the list. How else is it possible for authors or publishers to opt out of the Google’s project?
– After the Writers’ society told Google that they were not amused by the scanning of Chinese books which included titles of their members. Shanghai’s ‘Bad Girl’ Mian Mian sued Google, read here. It’s no surprise that China’s people’s court who heard Mian Mian asks the two sides to hold talks on a settlement. It is compliant to article 54 Copyright Law: “A dispute over copyright may be settle by mediation. lt may also be submitted for arbitration to a copyright arbitration body under a written arbitration agreement concluded between the parties or under the arbitration clause in the contract.“
At the end of December 2009, the State Council approved the Determination on the Revising of the draft version of the Implementation Rules of the Patent Law. Read more here.
The Regulation will be effective February 1, 2010 and will consist of 123 articles in 11 chapters.
Read more here and more about the backgrounds here.
Business Professor Peter Navarro of the University of California-Irvine, lashed out in 2008 at China Inside Out (ABC), a documentary by Bob Woodruff about China’s influence in Angola, Brazil, Cambodia and the US, because it allegedly paints a too nice picture of China. In his critique Professor Navarro wanted to debunk ‘cheap labour’ as the only explanation for China’s economic success. He came up with five unfair mercantilist trade practices that would give China its advantage:
Yes, people in Amsterdam can buy sex, drugs and rock ‘n roll. And some do. But do they buy counterfeit products? That is the question IP Dragon asked ad random people in the centre of Amsterdam (阿姆斯特丹) in the Summer of 2009 (no respresentative survey was done due to time restrictions). So what do you think? Place your bets… Rien ne va plus!
[youtube http://www.youtube.com/watch?v=qg6KNkEOlus&hl=en_US&fs=1&]
The Financial Times of January 4th (online), 5th (HK paper version) has an interesting article about famous stock-picker Anthony Bolton who is trying his expertise/luck in China. In the article , written by Sundeep Tucker, Jamil Anderlini and Robert Cookon, they cite Jack Perkowski, managing partner of JFP Holdings about legal peculiaraties that influence investments in China:
The Tort Liability Law had a … well torturous history. In 1997 the decision was made that China needed a Tort Liability Law. In the words of Professor George Conk of Fordham University School of Law “it is a brick by brick effort which does not proceed with the urgency of specific operational laws.“ On December 26, Tort Liability Law was passed. So can you make use of it when your intellectual property right in China has been infringed? Yes, but you first need to make use of intellectual property law. You could say that intellectual property law is a special law and that it derogates the more general tort liability law (lex specialis derogat legi generali).
Wang Shengming, deputy director of law committee of the National People’s Congress puts it like this: “the tort liability law is a supplement and consummation to related intellectual property laws, and once infringements to intellectual property rights happened, the related laws on intellectual property are preferential, and then tort liability law would be considered.“
Professor Benjamin Liebman of Columbia Law School is an expert on tort law and shared his knowledge about US tort laws, including defamation on the internet, with China.
“Internet service providers in the U.S. are immune from liability for content they do not create, a practice Liebman said the Chinese found “very surprising” and are unlikely to emulate. China already offers broad protections for plaintiffs in defamation cases.” Read more here.
Article 36 Tort Liability Law could be relevant: any web user or service provider who infringes others’ civil rights and benefits shall undertake the tort liability, and meanwhile, the law specifies the forms of liability for both: once infringements by web users happened, the infringed party has the right to inform the web service provider to delete, shield, cut the links and other necessary measures; web service provider who hasn’t take necessary measures after the information shall bear joint liability with the web user; web service provider who find users use the web service to infringe others’ civil rights and benefits but hasn’t taken any measures shall bear joint liability with the user
Professor Conk wrote about the draft of December 17, 2002 here . At the December 17, 2002 draft you could find tort liability for ISPs in article 63. Then the provision moved to article 34. Professor Conk wrote together with professor Wang Zhu of Sichuan University School of Law ‘Tort Liability of the People’s Republic of China (2nd official discussion draft December 28, 2008’, read here.
According to Intellectual Property Protection the ISP liability provision moved to article 36, read more here.
Steve Dickinson of China Law Blog wrote about it here that ISPs should not be criticised that they will remove the liability in China for “removing content from their sites that anyone suggests may be defamatory or violate some other party’s intellectual property rights.“ Because it is the law:
However, whether the new Tort Liability Law will be “a significant step to provide a comprehensive protection to people’s physical and mental well-being and the security of an individual’s property” as the Guang Ming website wrote remains to be seen. Read more here.
Read more about ISP liability in China here.
Photo/text: Danny Friedmann
The World Customs Organization (WCO) has launched its annual report for 2008, read the Global Review on Counterfeit and Piracy here.
Kunio Mikuriya, secretary general of WCO wrote:
“The results reported by Members during 2008 for combating counterfeiting and piracy are the best ever published. While we can commend the exemplary work doneby Customs administrations and a real effort by Members world-wide to eradicate these fraudulent activities, the statistics for 2008 are also noteworthy for another reason: the production of goods which infringe intellectual property rights is still increasing, thereby posing an ever-greater threat to the health and safety of consumers on every continent, and to artistic and industrial design in countries around the world.“
Mark Aoki-Fordham, director and corporate counsel at Starbucks Coffee Company said something … well outlandish:
“We are still trying to educate Chinese customers about why our coffee is a good beverage to drink at all times of day — and we’ve found that they are not the most loyal,” Aoki-Fordham noted. “They love our brand; they’ll come in and buy a cup of coffee, and they’ll keep the cup with our logo facing forward as they walk, but they’ll refill it throughout the day with other brands of coffee!”
If you buy a cup of coffee from another brand you will get it in a cup from that brand. Then it is just too much of a hassle to change the caffeinated liquid to the Starbucks cup.
So I don’t believe that Chinese customers are trademark counterfeiters on a not so commercial scale. Do you believe him?
Read the Knowledge Wharton Marketing article called ‘From Venti Lattes to Spider-Man: Adapting Global Brands for Success in China and India’ here.
MSN Juku, Microsoft’s micro-blogging site in China, admitted that that it has infringed the copyright of Plurk, which is popular in Taiwan and the Philipines but is blocked in the PRC.
Read relevant articles at the Plurk’s blog:
– Microsoft China rips off Asia’s No. 1 Microblogging Service
– Plurk’s official response to Microsoft’s apology
Read the Financial Times article by David Gelles about it here. Head tip to McGill’s CIPP Jeff Robert’s IP News This Week.
Xie Yu reports for China Daily about Shanda Literature Limited’s lawsuit against Baidu for alledged copyright piracy. Read more here.
Yesterday, it was announced that the Report of the Appellate Body in China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/AB/R was published. The three Members of the Appellate Body who served on this appeal were:
Ms. Jennifer Hillman, as Presiding Member, Mr. Shotaro Oshima and Mr. Ricardo Ramírez-Hernández.
You can download the 183 pg report here (see on your right hand side ‘All documents’).
I have not read the whole thing yet, but according to the Financial Times the report has the following conclusion:
The relation between market access and copyright infringement is simply that market access restrictions for copyrighted products will create demand for copyright piracy.
IP Dragon was strolling in Sha Tin (沙田), minding his own business, until he came across a Giormani shop. Was Giorgio Armani saving costs by using less lettering on the billboards?
Italian designer Giorgio Armani, who built the vast Emporio Armani (empire Armani) of clothing and luxury products, will probably not be amused that Kelvin Ng and Jane Tong founded Giormani, a Hong Kong sofa furniture design and manufacturing company in 1999. It’s website tells you that they work with young designers from Italy, Germany and Hong Kong. Therefore, we can exclude the possibility of Giorgio Armani designing for them, since he is only young at heart.
If Giorgio Armani registered its trademark in Hong Kong he could probably do something about the sofa business. And even when he did not register his trademark, since Hong Kong has a Common Law system, it means that he can enforce his unregistered trademarks with the legal figure of the tort of passing off.
However the plaintiff should proof the classic trinity:
The goods or services have acquired goodwill or reputation in the marketplace that distinguishes such goods or services from competitors;
The defendant misrepresents his goods or services, either intentionally or unintentionally, so that the public may have the impression that the offered goods or services are those of the claimant;
and The claimant may suffer damages because of the misrepresentation.
The Trademark Ordinance of Hong Kong states in the introduction: “No proceedings lie to prevent, or to recover damages for, the infringement of an unregistered trade mark butnothing in this Ordinance affects the law relating to passing off.“
The writer of the banned book Candy, and, Panda Sex (according to China Daily more mature) and Acid Love, sues Google.
Shanghai’s “Best Bad Girl” Author Mian Mian (棉棉), finds support from the China Written Works Copyright Society.
IP Dragon’s friend Peter Ollier of Managing Intellectual Property reports about the ‘Instructions for National Indigenous Innovation Product Application Procedures’, promulgated by the Ministry of Science and Technology and the National Center for Science and Technology in September 2009. See Mr Ollier’s MIP article here.
In the Third Amendment to China’s Patent Law of 2008, China got rid of the requirement that if you want a patent outside China of an invention that was done in China, you first needed to file the patent in China. However, what was the replacement? Article 20 Patent Law 2008 demands a “mandatory advance confidentiality examination” as the IPR2 writers of the excellent booklet ‘Third Revision of China’s Patent Law’ call it, before a patent can be filed abroad; to prevent so called national security issues, has its own disadvantages, about which I will elaborate upon later.
Level Playing Field
China devised the following accreditation principles:
“1. Products should be of great significance. The accredited products must contribute much to or can produce vital influence on the economic and social development;
2. Products should be proprietary. The accredited products must have Chinese intellectual property and proprietary brands, and the ownership and the right of use are clearly defined, without producing disputes;
3. Products should be symbolic. The accredited products must be symbolic products mirroring China’s indigenous innovation capabilities and levels.“
So: Economically significant products (vague terms), that are protected by Chinese intellectual property rights. However, the last sentence that the products should mirror China’s indigineous innovation capabilities and levels, shows that China will make use of Chinese alternatives if they are available. Read the ‘Instructions’ translated by US Information Technology Office (a US Government institute that is for example is involved in ‘Ruled for Formulating Standards Involving Patents), here.
Photo/Text: Danny Friedmann
December 10 and 11, 2009, IP Dragon attended interesting seminar called ‘The Development of the Chinese Legal System: Change & Challenges’ organised by the Centre for Chinese Law of the University of Hong Kong.
Frederik Borgesius (research master at IViR, studying copyright law and internet law for a semester at the University of Hong Kong, paralegal at solv.nl, a Dutch IP & IT boutique law firm, and “dj Fred” by night at Yumla for example) sent IP Dragon an interesting link.
It’s about China’s aggressive stance against BitTorrent sites. In some countries BitTorrent sites are shut down. Mainly because of copyright piracy. In China the most important reason seems to be control over the media; China’s State Administration of Radio Film and Television (SARFT) concern is video websites that lack appropriate licensing and certification by the government, allegedly damaging children’s minds and undermining national security. Read TorrentFreak’s article by enigmax, here.
Jamon Yerger is founder of Southern Perspective Shenzhen (“China Law Reference, doing it right the first time”), a consulting company in the bustling city of Shenzhen that provides advice on a range of business functions; the majority of which deal with manufacturing in China and legal protection for foreign companies engaged in supply chain activities. Mr Yerger wanted to go to a Starbucks. And he did not mean Starbucks in the generic sense, as some people already use it for any place where you can buy a daily doses of caffeine. Although “colors, script, umbrellas and even the glass awning over the doors” were similar to his old Starbucks, he found out, to his surprise, it was not coffee shop of this also in China pretty well known brand (I am not referring to the legal term well known mark. This would be the case if it is well known in China, and acknowledged as such by China). They only used a different name: St. Mars. So the place had the look and feel of Starbucks. IP Dragon agrees with Mr Yerger’s opinion that St. Mars is “clearly hitchhiking” on the Starbucks brand. So what could it mean in legalese?
The question is whether Starbucks registered the name Starbucks Coffee in China. If you are at the trademark search site, sponsored by the Trademark Office of the State Administration for Industry and Commerce (first select “Search of identical or similar TMs”, then fill in class 30 for non-alcoholic beverages), here, you will find that Starbucks has several trademarks. You could then argue that Starbucks Coffee and St Mars Coffee, using the identical font, and the identical colour, is confusingly similar and infringes Starbucks trademark. Maybe Starbucks separately trademarked the colour, which would lead to trademark infringement. The design of parts of the place could be patented in China. And if the copycat cannot be stopped by trademark law or design patents, copyright law might be a place of last resort. China is coming up with a Tort Law (December 5th, was the deadline for submission of comments), see here, and maybe the legal figure of passing off will be introduced, which I doubt, since it is more of a Common Law legal figure. Anyways read Mr Yerger’s article, see the pictures of the two places and decide for yourself here.
Read also Starbucks versus Xingbake here.
Dominique Schroeder has a good article about counterfeit wine for Agence France-Presse published in the South China Morning Post today.
“The mainland is “the principal counterfeiter”, according to Renaud Gaillard, deputy director of the French export trade body, Federation des Exportateurs de Vins et Spriritueux de France (FEVS).”
However, Schroeder points out that unlike luxury goods groups such as LVMH, most vintners do not have the financial resources to fight fake goods. The ones who can pay lawsuits, which cost easily 500,000 euro, they do not want any publicity, because people might associate their products with counterfeit products.
Joel Martinsen of the great site about Chinese media, advertising, urban life and many more fascinating subjects, Danwei.org, has a great blog about ‘Painted plagiarism of push-up photograph’ read here.
New Europe reports about EU firms’ enthusiasm about China’s market prospects and their concern about the execution of the IPR laws in China.
” “China’s intellectual property laws are not bad. The problem is their implementation,” [EU’s Chamber of Commerce in China (EUCCC) President Joerg] Wuttke said. One result of the poor execution of IPR laws is that companies don’t conduct “genuine” research and development in China, he said. “Companies build R&D centers, but the focus is on development, not really on research,” Wuttke said. “For the research part, companies are more willing to transfer Chinese scientists elsewhere to guarantee IPR protection.” “
Read the New Europe article here.
In The Economist special report on China and the US called ‘Overkill’ where the author James Miles postulates the opinion that China is piling up more weapons than it appears to need, Mr Miles also writes about the need for China to develop its soft power:
“Soft power was mentioned for the first time by a Chinese leader in public in 2007. Culture, said Mr Hu [Jintao, China’s president IP Dragon] (oblivious, it seemed, of the cold-war overtones of his remarks), was of growing significance in the “competition in overall national strength”. China should therefore “enhance culture as part of the soft power of our country”.“
Read The Economist article here. Copyright can protect cultural manifestations, so makes copyright crucial to develop China’s soft power.
