What other kinds of disputes arise in foreign trade contracts?
Since more and more goods incorporate intellectual property rights foreign trade issues are ever more closely related to intellectual property matters. With the rapid increase in the number of registered foreign trademarks and patents in China, there has also been a considerable increase in the number of disputes involving intellectual property. Such disputes often arise out the following situations:
1. Some trademarks registered by a Chinese enterprise in China are already registered by agents in a foreign country who own the marks in those countries. Therefore when goods carrying such marks are exported from China to those countries, disputes arise when the foreign agents accuse the Chinese exporter of infringing their marks.
2. Different registrants of the same trade mark using that trademark on export goods. This occurs when production enterprises in China register the mark for use in China and a Chinese trading company registers the mark in the country to which the goods are exported. Who is the real owner of the mark?
3. Disputes occur in transactions related to branded goods. In foreign trade transactions involving branded goods, the buyer and the seller sometimes conclude a contract to supply goods with a fixed brand. Sometime thereafter the purchaser discovers that the seller is using a trademark that is closely related to a mark that is owned by another party with whom the seller also has business dealing but is not authorized to use the mark.
Some other types of disputes are as follows:
1. Disputes over lack of conformity because the purchaser alleges that the goods delivered are not of the quality, quantity and description set out in the contact or are not contained or packaged in the manner also required by the contract.
2. Disputes over the lack of conformity in respect of specifications.
3. Disputes arising out of breach of guarantee of title to the goods. The title to the goods conveyed shall be good, its transfer rightful and the goods must be free of any liens, charges and encumbrances.
4. Disputes over the transfer of risk related to the issue of who should bear the risks of loss of or damage to the goods. The risk can pass either when the goods are turned over to the shipper or when the goods are delivered to the port of delivery.
5. Disputes over transfer of risks for unidentified goods. In most cases risk for the goods is not transferred until the goods have been identified as being part of the foreign trade contract. What constitutes identification is often disputed.
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