CHINA INTELLECTUAL PROPERTY LAW NEWSLETTER
Vol. 4 , No. 1 - January 16, 2003
TOPICS THIS ISSUE:
- China Preparing New Judge Corps for WTO Era
- Problems Remain in China's Implementation of WTO Commitments
- Court Orders Museum to pay for Copyright Infringement
- Tianjin Destroys 600,000 Illegal Audio-Visual Products
- Domain Gain as System Shake-Up cuts Costs
- China Rice Conflict: Exporters Threaten Suit
China Preparing New Judge Corps for WTO Era
The judges responsible for decided intellectual property cases have begun receiving additional training in line with China's World Trade Organization (WTO) commitments.
According to Ma Aidi, president of Beijing's First Intermediate People's Court, to meet China's commitments following its accession to the WTO, China is in the process of training a number of qualified judges who are both well-versed in Chinese jurisprudence, WTO rules and proficient in foreign languages.
The Court, which has been handling intellectual property cases for ten years, has established a training program that includes academic study, refresher courses, advanced studies abroad and academic exchanges, all of which improve judicial competence.
A report from China's Supreme Court listed the creation of a new high-quality judge corps as one of the eight components of China's judicial reform.
The Court views China's publication of legal documents and conducting of open trials as major steps forward in guaranteeing the legitimate rights of the parties, said vice president Li Xinsheng.
Intellectual property cases are often the most difficult, said Li, adding that, despite the complexity of the cases, the twenty- plus judges of the Court's Intellectual Property Branch are very efficient, handling an average of one case per day.
Judge Gu Shibo, well known for her efficiency, has handled more than 560 civil cases in the past two years.
With China's WTO accession, the number of cases falling within the court's jurisdiction is sure to increase, said Li. Along with the amendment to the trademark law, about 20,000 cases formerly handled by administrative bodies will now be decided by the courts. Based on just 10% of that number, the Intellectual Property Branch will face five more cases per working day, according to Li.
(Source: Xinhua General News Service)
Problems Remain in China's Implementation of WTO Commitments
The U.S. Trade Representative Office recently reported that although China has generally taken positive steps to fulfill its WTO accession commitments, problems in certain areas still needed to be addressed and resolved.
The report noted that China has adopted positive measures to fulfill its accession in the area of customs with tariff cuts in a variety of areas, including information technology products, automobiles and spare parts, beef, oranges etc. Noting that China has also started to adopt measures to eliminate non-customs tariff trade barriers.
Nevertheless, the office noted that the United States still has concerns about intellectual property rights. The office said that China has certainly improved the basic structure of its related laws and rules. It added however putting these laws and rules into effect is still a big problem, saying that China must invest considerable resources and political will in solving this problem and that the United States and other members of the WTO will also have to make joint efforts to solve the problem.
(Source: Asia Pulse)
Court Orders Museum to pay for Copyright Infringement
A recent verdict of the Beijing Higher People's Court confirms that copyright in a work belongs to its creator, and when the artist or author dies, his or her beneficiaries inherit the proprietary right in the copyright for 50 years after his or her death.
The decision means that the National Museum of the Chinese Revolution and the Shanghai Guangyuan Company have to pay RMB 260,000 (US$ 31,000) to the copyright holders of a famous Chinese oil painting.
In 1999, the Shanghai-based art and handicraft company issued and sold about 15,000 sets of gold leaf prints of the painting, "The Founding Ceremony of New China", with permission from the museum which holds the original artwork. The oil painting has become a classic in China for portraying vividly the founders of new China, including the late Chinese president Mao Zedong, against the background of the founding ceremony of new China held 1 October1949.
Dong Yisha, daughter of the late Dong Xiwen who painted the work, took both the company and museum to court because they did not get permission from her, the copyright holder of the painting, to duplicate the painting. In June, the No.2 Beijing Intermediate People's Court found in favour of Ms. Dong and ordered RMB 260,000 in compensation. Not satisfied with the judgment, the museum and the company appealed to the High Court, which dismissed their appeal last week.
"I feel pleased with the result," said Ms. Dong. The verdict had ended the nearly 3-year long lawsuit. "The result justifies respect for the creative work of an artist in a civilized society," said Dong, who is also a painter and is now in her 40's.
Showing a photocopy of an agreement between the museum and the Shanghai company, which states that the museum offers the authorization in return for 20% of sales profits, the judge said: "Clearly, the museum's authorization, which is illegal, is for commercial purposes and makes the duplication of the painting possible."
The Court also found that as the collector of the original oil painting, the museum was entitled only to exhibit the work according. All other rights in the copyright work still belonged to the copyright holder.
According to the verdict, without the copyright holder's permission, the museum was not entitled to authorize another party to use a work in its collection in the capacity of the copyright holder.
In this case, Dong Xiwen died approximately 30 years ago and the painting was still under copyright law protection.
China's artist community welcomed the court's ruling. "It respects the artist's labor and copyright and is popular with us artists," said Hou Yimin, a professor with the Central Academy of Fine Art and a renowned artist who used to work with Dong Xiwen.
(Source: Xinhua General News Service)
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Tianjin Destroys 600,000 Illegal Audio-Visual Products
Tianjin, a port municipality in north China, destroyed 600,000 illegal audio-visual products in a recent move to demonstrate its determination to protect intellectual property rights and maintain good market order.
Under the supervision of the Tianjin Municipal Public Security Bureau, compactors crushed the illegal products. Among the illegal audio-visual products, more than 20,000 were compact discs (CDs) with pornographic content, and the rest were pirated CDs and illegal electronic publications, police sources said.
Police said these illegal audio-visual products were seized on a cargo train from Guangzhou, capital of south China's Guangdong Province, to Tianjin in the middle of September 2002.
Police found that the audio-visual products marked as "stationery" and the names of both the recipients and dispatchers were false.
(Source: Xinhua General News Service)
Domain Gain as System Shake-Up cuts Costs
A total of 23 qualified registering organizations or so-called registrars have been given the right to register secondary domain names using the ".cn" suffix.
It is estimated that there are about 700,000 generic top-level domain names (TLDN) in China, the new regulations mean applicants will get their domain names within 6 hours after filling in a form on the websites of any of the 23 registrars. The new domain system offers applicants a shorter online address, such as abc.cn, instead of a tertiary-level abc.com.cn. A spokesman for Xiamen based China Channel, one of the 23 registrars, said the shorter online address will be more attractive to businesses and organizations.
Tertiary domain name owners have the right to upgrade the names to secondary level from March 17, 2003. And there has been a constant rise in the registration of new domain names since August following publication of the new domain name system by the Ministry of Information Industry. Statistics from CNNIC (China National Internet Network Information Center) showed the registration of tertiary-level domain names using ".cn" dropped to 126,146 by June, the lowest amount in the past 18 months. But 145,247 names had been registered by the end of November after the announcement of the domain name system.
(Source: Business Daily Update)
China Rice Conflict: Exporters Threaten Suit
Major Thai rice exporters are planning to file a lawsuit against Chinese importers over trademark violations, which they say has caused them market losses.
"We are working closely with our legal advisers to find an appropriate way to sue Chinese importers soon," said one rice exporter who has been aware of the problem for years.
He said that some of the packers were previous counterparts of Thai exporters in China and that Thai fragrant rice had been subject to imitation due to its popular taste among local consumers. Thai rice exporters who participated in the recent "Thai Hom Mali Rice Promotion" campaign held in Guangzhou and Shenzhen shared the same complaint, saying an imitation product damaged the image of authentic Thai rice, as the quality of the imitation was lower.
The quality of Thai fragrant rice is higher than locally produced versions in China as well as imitations. In order to generate higher profits, illegal trademarks always mix plain white rice with Thai jasmine rice, said Charoen Laothamatas, president of Uthai Produce Co, a leading exporter.
Their trademark, Golden Wheel, is well recognised in the area and that is one of the causes of the infringement problem. Mr. Laothamatas said that the trademark problem in China had confused the company's clients, as logos created by other companies are the same design and colour as Uthai's.
"Thai exporters who have exported to China for decades are seeing their brands facing the same problem, even after being well established," Charoen said, adding that because Thai exporters sell through agents they cannot stop the problem.
To ensure Thai rice quality, Charoen has appointed a sole distributor in Shenzhen and does not allow the company to repackage the product.
Local rice exporters need to focus more on registering their trademarks not only in Thailand, but also in foreign markets, he added.
(Source: The Nation (Thailand))
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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.
