CHINA INTELLECTUAL PROPERTY LAW NEWSLETTER
Vol. 3 , No. 4 - March 18, 2002
TOPICS THIS ISSUE:
- Interpretations Allow For Preliminary Relief of Trademark Infringment
- China's First Agricultural Database a Success
- China-Famous Legend Discovers Its Trademark Registered Abroad
- National Committee's Work Still Lacking
- Advisors Urge For Increasing of National IPR Awareness
- China-made DVD Players May Be Start of China Boycott
- China Poses Greatest IP Challenge In The World
- Counterfeiting in the Pharmaceutical Industry
Interpretations Allow For Preliminary Relief of Trademark Infringment
New rules, effective January 22, 2002, were adopted by the 1203rd session of Judicial Committee of The People's Supreme Court. "The Interpretation on Questions Concerning the Application of Law in Prelitigation Injunctions to Cease Infringement of the Exclusive Rights of a Registered Trademark and to the Prelitigations Preservation Evidence," (the SPC Interpretation) provides trademark registrants access to preliminary remedies against trademark infringement without needing to give prior notice to the alleged infringer.
The main points of the SPC Interpretations are as follows:
- A trademark registrant or an interested party can file an application. Interested parties include a licensee and a legal successor of the property rights of the registered trademark;
- The application should be filed in writing with the People's Court in the jurisdiction where the infringing act occurred or where the alleged infringing party resides. The application for a pre-litigation injunction to cease infringement of the exclusive rights of a registered trademark must be filed with supporting evidence, such as the Certificate of Trademark Registration, a license agreement and relevant documents relating to the legal successor;
- The applicant must provide a guarantee with the application;
- The People's Court must decide and put in writing within 48 hours of the filing of the application, whether the application is found to conform to the applicable provisions. The court must then inform the accused party of the decision within five days and, if the party concerned is not satisfied, it may claim for a review within ten days;
- A decision rendered by the People's Court will last until a final decision is rendered.
China's First Agricultural Database a Success
China's first agricultural patent database set up in Shaanxi Province, northwest China, was jointly built by the Yangling Agricultural Intellectual Property Information Center and the Shaanxi provincial government in cooperation with the State Intellectual Property Office.
It contains 910,000 Chinese agricultural patents and more than 500,000 foreign agricultural patents. The database allows visitors access to agricultural patent information and enables them to collect, arrange and analyze agricultural information. Since November 2001, when the public first gained access to the database, it has been accessed approximately 135,000 times.
(Source: Xinhua News Agency)
China-Famous Legend Discovers Its Trademark Registered Abroad
Some China multinationals are meeting some unwanted obstacles in their quest to enter the global marketplace.
Legend Group, China's largest computer and electronics manufacturer, is planning to launch its notebook computer in the European market. However, it will be forced to use a name different from LEGEND for the product, as that trademark has already been registered by more than 10 firms all over the world.
Legend is planning to respond to the trademark issue by first using its QDI brand, then launching a new sub-brand in the overseas market.
Legend Group has conceded that it will not try to purchase the LEGEND trademark as it is owned in many countries by many firms, with the resulting costs too expensive to handle.
Although it is very common for products to have markings stating "made in China," there are very few Chinese trademarks registered in the international market.
(Source: ChinaOnline)
National Committee's Work Still Lacking
Committee chairman Li Peng presented a review of the National People's Congress (NPC) Standing Committee's work over the last year.
Li Peng said that while the NPC has held numerous seminars on intellectual property rights, administrative procedures and China's WTO accession with the goal that the committee better understand how the country's legal systems must develop, the progress of legislation is still falling behind current needs.
Li noted that deputies have "generally demanded that the work of supervision should be further intensified", but that "despite the efforts devoted by the NPC Standing Committee, the practical results are not satisfactory enough."
Despite criticizing the speed of the committee's work, Li Peng did admit that the work performance of NPC deputies has been further improved over the past year."
(Source: BBC)
Need to File a Patent or Trademark in China? Contact LLX at mail@chinalaw.cc and click below to download a Power of Attorney: | | |
Advisors Urge For Increasing of National IPR Awareness
According to officials, entrepreneurs and economists, China needs to enhance national awareness of intellectual property rights (IPR) to promote the growth of its economy.
Wuhan city's vice-mayor Gu Shengzu said China must solve urgent problems with its IPR system if it hopes to meet challenges arising from its accession to the World Trade Organization (WTO).
"Without our own technology and IPRs, it's hard for us to win in an international atmosphere," he said. He added that China is in an obviously disadvantaged position compared with the West regarding IPRs.
Surveys show that the number of patent applications filed by Chinese enterprises is far lower than the number filed by foreign firms since China established its patent licensing system in 1985.
At the same time, experts say that China is facing an appalling drain on IPRs. In the past 15 years, it is estimated that that 130,000 Chinese inventions were taken by others free of charge as their IPRs were not protected.
Yin Mingshan, an entrepreneur from Chongqing city in southwest China, said the quantity and quality of IPRs can be a major indicator of national strength and a powerful tool in market competition. He warned that "if the current situation continues, Chinese enterprises will hardly experience substantial growth, let alone be able to compete with advanced counterparts in the international market."
In the hi-tech industry, China is already considered sieged by foreign enterprises. Foreign enterprises accounted for 70 percent of the invention patent applications received in China between 1994 and 1998 in the field of computer technology. In the fields of pharmaceutical and biology, the figures are 61 percent and 87 percent respectively.
Several economists with the September 3 Society have called in a proposal to the ongoing annual session of the Chinese People's Political Consultative Conference (CPPCC), the country's top advisory body, for the government to improve China's IPR system.
The economists called for reforms in the country's scientific awarding system, reductions in patent transaction costs and increased spending on research and development.
(Source: Xinhua News Agency)
China-made DVD Players May Be Start of China Boycott
In Britain and Germany, digital videodisc players manufactured in China have been seized by officials because of a patent dispute.
Two international electronic companies are claiming that they are the owners of the patented technology being used in the manufacturing of Chinese-made DVD players and are demanding royalties for every player produced.
Several multinational companies such as Philips, Hitachi, Toshiba and Sony maintain that Chinese manufacturers have simply taken their technology and are using it without a licensing agreement or any other sort of permission. They also point out that as China is now a WTO member, it should be forced to abide by international patent rights.
However, despite European threats of boycotting Chinese products, the Chinese manufacturers assert that as the patents may not be registered in China, they are not infringing any rights.
(Source: National Journal's Technology)
China Poses Greatest IP Challenge In The World
A recent study of the treatment of U.S. intellectual property rights by foreign countries was filed with the U.S. Trade Representative (USTR).
The International Intellectual Property Alliance (IIPA), which is made up of trade associations in industries such as music, motion pictures, software and publishers, filed the report. The report singled out China as the "greatest intellectual property enforcement challenge in the world."
The IIPA said that both China and Paraguay, another heavy infringer of U.S. IP rights, could be subjected to "virtually immediate trade sanctions", according to bilateral copyright agreements.
The International AntiCounterfeiting Coalition (IACC) also filed a report, echoing the IIPA's comments about China.
(Source: National Journal's Technology)
Counterfeiting in the Pharmaceutical Industry
Although the Chinese press is not blind to counterfeit or sub-standard drugs and pharmaceuticals, the focus usually remains on local victims of the trade, and does not often concentrate on the manufacturers themselves.
In 1996, when sub-standard medicine killed 89 children in Haiti, it was found that the source of the medicine was a trading company in China. How exactly the anti-freeze was used in the medicine remains a mystery due to the complexity and vagueness of the transactions. However, the Haiti case remains a scary reminder of the presence of counterfeiting in the pharmaceutical industry in China.
Raids on Chinese warehouses regularly turn up export bound cartons filled with fake drugs labeled with multinationals trademarks, and State Owned Enterprises (SOEs) are known to manufacture and export counterfeits.
As the profits from selling counterfeit medicines can often be as high as the sale of narcotic drugs, it is thought that organized crime has become involved in the China fake drug industry. Harvey Bale, Director-General of the International Federation of Pharmaceutical Manufacturers Associations (IFPMA), said that organized crime faces "less risk in moving into counterfeit medicines than illegal drugs."
Some counterfeiters even appear to have government protection as officials and People's Liberation Army (PLA) members, who supposedly were previously involved in the actual manufacturing and distribution of the drugs, tip counterfeiters off about upcoming raids.
While companies are increasingly using sophisticated anti-counterfeiting methods, such as holograms, embossed logos and sealed packets for their drugs, counterfeiters are becoming equally sophisticated in the use of high technology to copy the anti-counterfeiting mechanisms.
Some estimates suggest that the counterfeit pharmaceutical goods market in the United States alone amounts to between US$ 16 and US$ 48 billion. In China, the situation is much more desperate with half of some types of drugs being counterfeit in the China market.
(Source: World Markets Analysis)
Lehman Lee & Xu
China Lawyers, Notaries, Patent, Copyright and Trademark Agents
http://www.chinalaw.cc/
Beijing Office | 6th floor, Dongwai Diplomatic Office Building
23 Dongzhimenwai Dajie
Beijing 100600 China
Tel.: (86)(10) 8532-1919
Fax: (86)(10) 8532-1999
Email: mail@chinalaw.cc | | Shanghai Office | Suite 5107, Plaza 66
No. 1266, West Nanjing Road
Shanghai 200040 China
Tel: (86)(21) 6375-8240
Fax: (86)(21) 6375-8705
Email: shanghai@chinalaw.cc | |
To unsubscribe from this newsletter send an email to
unsub-ip@lehmanlaw.com Please include the email address to which the newsletter is being sent (not a forwarded address) in the body of the email.
The China Intellectual Property Law Newsletter is intended to be used for news purposes only. It should not be taken as comprehensive legal advice, and Lehman, Lee & Xu will not be held responsible for any such reliance on its contents.
