CHINA INTELLECTUAL PROPERTY LAW NEWSLETTER
Vol. 4 , No.7 - May 19, 2003
TOPICS THIS ISSUE:
- Shaolin Monks Fight to Protect the Temple's Reputation
- China Takes Measures to Protect Copyrights
- SAIC Promulgates Implementation of Madrid Convention
- China Counterfeiting Raise Japanese Complaints
- Panasonic Makes China IP Complaints
- Taiwan-China Beer Battle Continues
Shaolin Monks Fight to Protect the Temple's Reputation
Monks of China's famed Shaolin Temple, which is commonly considered the birthplace of Chinese kung fu, a unique combination of Buddhism and Chinese martial arts, have been more and more aware of safeguarding the temple's reputation by legal means.
"The Shaolin Temple is an important piece of cultural heritage for all human beings. To protect it, we must propose draft legislation to ensure appropriate action," said the abbot of the Temple, whose religious name is Shi Yongxin.
Located in Dengfeng County in central China's Henan Province, the Shaolin Temple was built in the foothills of the sacred Songshan Mountain in AD 495 during the Northern Wei Dynasty (386- 534).
Thirty-two years later, Bodhi Dharma, an Indian monk, began to teach in the temple and introduced an Indian form of exercise, which is regarded as the birth of the temple's martial art tradition.
Generations of Shaolin monks have devoted themselves to enriching and improving the tradition and have gradually developed it into a complex and sophisticated system of fighting, widely recognized as "gongfu" or kung fu.
Shaolin kung fu became more famous in modern China with the cinematic debut of the movie "Shaolin Temple" over 20 years ago, and its global influence has grown since the 1970s due to its use in a wide variety of foreign films featuring actors of Chinese origin, including Bruce Lee and Jackie Chan.
In recent years, the popularity of kung fu has been accentuated by Ang Lee's Oscar-winning blockbuster "Crouching Tiger, Hidden Dragon".
To enhance protection, earlier this year, the 1,500-year-old Chinese kung fu underwent an application process to the United Nation's Educational, Scientific and Cultural Organization (UNESCO) for becoming listed as a "World Intangible Heritage."
"These days, Shaolin kung fu is misconstrued because most people barely scratch its surface and think that it is simply a martial art," said Shi Yongxin, who is also a deputy of the National People's Congress (NPC).
"Our temple is applying to UNESCO so that Chinese kung fu, not the martial arts, be listed as World Intangible Heritage," he said, "because kung fu refers to Buddhist meditation and cultivation, which aims to improve one's moral qualities. Our monks practice of martial arts is one method of moral development."
Meanwhile, the local government is taking steps to place the temple and more than 600 stupas, which were built as tombs for monks during the Tang Dynasty (618-907) and the Qing Dynasty (1368 - 1644) at the temple and on nearby Songshan Mountain, on the United Nation's World Heritage list. The application process was initiated last year.
Shi Yongxin said that, in fact, the Songshan Shaolin Temple comprises the existing temple buildings, The Forest of Stupas, a cemetery for Shaolin monks, and a pavilion commemorating Bodhi Dharma.
"Thus, we should promote the listing of the Shaolin Temple as a whole," he said.
"And a successful application will not only help protect the endangered culture of Shaolin, but will also help to carry forward China's traditional culture," he said.
The temple is also involved in a battle to protect its name, involving the registration of "Shaolin" or "Shaolin Temple" as trademarks throughout the world.
According to figures provided by the temple, 80 unauthorized kung fu schools in China have used the name Shaolin, and more than 100 businesses, including those selling cars, beer, tires, furniture, and even wire, bear the Shaolin trademark, all without consulting the temple.
A spot check conducted in 11 countries and regions on five continents also shows that, with the exception of Hong Kong, 117 examples of the use of the temple's name have been registered in these areas.
In 1994, the temple won a lawsuit against a company in a nearby town that was using the Shaolin name to market its product -- sausage, the first case of this type.
To further defend its reputation and interests, the temple has set up a firm, the Henan Shaolin Temple Industrial Development Ltd. Co., to protect and administer the intangible assets of Shaolin Temple, to safeguard the legitimate rights of the temple and to investigate cases of unauthorized use of the temple's name in commercial activities, said Yongxin.
In recent years, the temple applied for registration of " Shaolin" and "Shaolin Temple" as trademarks with the General Administration for Industry and Commerce of China, and similar efforts have also been stepped up in foreign countries.
To date, Shaolin Temple has registered nearly 100 items in China and has applied for registration in 68 countries since 2000, according to the abbot.
"It is our historical responsibility to protect and rejuvenate the culture of Shaolin," he said.
(Source: Xinhua News Agency)
China Takes Measures to Protect Copyrights
According to statistics published by China's Copyright Bureau, there were 11,517 copyright transactions in China in 2002, which is a new record. The largest number of copyrights came from the U.S., followed by Japan.
According to Qi Xiangtong, China has gone far in living up to its WTO obligations. China has revised laws relating to patents, trademarks, copyright, and computer software to bring them in line with international standards.
After the revision of the relevant laws, China will implement three management patterns. One is the judicial protection, whereby the people's courts at all levels will protect the copyrights from being violated. According to the law, interpretations made by the Supreme People's Court, the intermediate courts will be responsible for the jurisdiction of copyright disputes. Another is administrative management, which will be implemented by the copyright bureaus in all cities. The last is social uniform management, which refers generally to giving copyright owners more authority to manage their own works.
Experts believe that these measures will benefit China's publishing industry and generally allow for a more protected system whereby copyrighted works may be transferred.
(Source: SinoCast China Business Daily News)
SAIC Promulgates Implementation of Madrid Convention
On April 17, Wang Zhongfu, director of the State Administration of Industry and Commerce (SAIC), issued the 7th order of the administration, the Implementation of the Madrid Convention for Trademark International Registration, which will be effective as of June 1, 2003.
The Implementation is applicable to applications for international trademark registration with China as the original country. Applicants must apply for registration under the Madrid Convention specifically or the applications will not be subject to the Implementation. Applicants can apply for trademark registrations via trademark agencies, foreign representatives or law firms.
According to the Implementation, applicants who apply for international trademark registrations with China as the original country should have China operations, have residences in China or be Chinese nationals.
If applicants have registered their trademarks with the China Trademark Office, or have submitted applications to the administration, they can also apply for the international registration of their trademarks in line with the Madrid Convention.
(Source: SinoCast China Business Daily News)
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China Counterfeiting Raise Japanese Complaints
A Yomiuri Shimbun survey of major Japanese companies on the issue of intellectual property revealed that such companies believe China has become a major producer of copies of Japanese products and, moreover, the measures taken by Japanese manufacturers to counter such activities has been ineffective.
Analysts say the increased presence of Japanese companies in China has made Japanese products more available there, and thus made it easier for intellectual property infringement.
It has previously been a common practice to attach fake Japanese brand logos on low quality products to be sold in China. However, more dexterous attempts to outwit Japanese companies' attempts to protect intellectual property have been used recently.
A Chinese company recently registered the katakana characters for the name of Asahi Glass Co.
Because the katakana characters were regarded as a logo, and registering a logo is easier than registering characters, the Chinese company registered the katakana version of the Asahi Glass name as a trademark before the Japanese company did.
An Asahi Glass official said the company never thought that its katakana name would be registered by a Chinese company.
In another example, Yakult Honsha Co. sells its products with kanji character brand names in mainland China, Hong Kong and Taiwan.
Similar products using slightly different kanji brand names from Yakult's are sold in China. In China's first-to-file trademark system, it is difficult to solve these problems once they occur; even successful actions may take several years for a positive resolution.
Japanese companies whose intellectual property has been infringed upon are taking various measures, including conducting of regular market surveys, hiring investigators and law firms to act against infringers, and working closely with the Chinese government to combat infringing manufacturers.
Some of these actions have resulted in economic damages being awarded to the Japanese companies, but they feel that more needs to be done in the face of increasing counterfeiting and exports of such products to other countries.
The Japanese government has asked China to enhance controls of copied products and other intellectual property infringements, but the spread of copycat products in China has not stopped.
At a meeting of the Asia-Pacific Economic Cooperation forum held in Los Cabos, Mexico, in October, the government proposed setting up offices in all APEC countries to accept complaints of intellectual property infringement.
Some complain that IP registrations in China take too long. The Patent Office now reportedly holds about 500,000 pending applications. It takes an average of 22 months between the acceptance of an application and the time it is examined, compared with 14.4 months in the United States.
The Patent Office had only 1,126 examiners as of April 1, one-third of the number working in the United States. One examiner at the Patent Office screens twice as many applications as a U.S examiner, and three times as many as a European one in 2001.
(Source: The Daily Yomiuri (Tokyo))
Panasonic Makes China IP Complaints
On April 26, the World Intellectual Property Day, the Intellectual Property Department of Panasonic China Co., Ltd. echoed the complaints of its fellow Japanese companies (see above article) in highlighting two difficulties in the intellectual property area in China. One is that the relevant departments are slow in examining and approving patent applications submitted, and the other is that the counterfeits tarnish the image of Panasonic. Panasonic, which owns two famous marks, Panasonic and National, is the first Japanese company to set up dedicated intellectual property departments in China.
Panasonic suggests that China's patent office consider implementing an advanced approval system to alleviate the present slowness in the examination and approval of intellectual property applications so that new patents can enjoy timely protection from violation and piracy.
Furthermore, Panasonic hopes that the government can take effective measures to crack down on pirated and shoddy products, believed to be a serious barrier to China's industrial development, to create a better investment environment for foreign enterprises.
(Source: SinoCast China Business Daily News)
Taiwan-China Beer Battle Continues
In a story we have been following in this newsletter, sparks are flying across the Taiwan Straits on account of two rival beer brewers and their brand names.
Although Taiwan has opened its market to popular mainland Chinese beer brands, including Tsingdao Beer, the mainland authorities have thus far refused to allow the Taiwan Tobacco and Liquor Co. (TTL) to sell its beer under its brand name of Taiwan Beer. Instead, the mainland insists that TTL has to sell its beer under the name of TTL Beer in the mainland market.
Trademark registration rules in China are specific in denying applications for marks that incorporate geographic names; this includes country names such as "China" and "Taiwan", but should also include city names such as "Qingdao", or "Tsingtao". As a long-standing China famous mark with a geographic indicator, "Tsingtao" is protected on the mainland.
After TTL's Taiwan Beer trademark application was recently rejected, some Taiwanese lawmakers have suggested a ban on sales of Tsingdao in retaliation.
Following Taipei's and Beijing's successive accessions to the World Trade Organization (WTO), Tsingtao has done well in Taiwan. Its local market share reached about 10 percent last year and the company has launched a joint-venture project with a local business group to build a brewery in the southernmost Taiwan county of Pingtung.
In contrast, TTL's mainland sales record has been lackluster. TTL officials said the slow sales could be attributed to low brand awareness on the mainland.
"While many mainland people, as well as the large number of Taiwan businessmen operating there, are familiar with Taiwan Beer, they generally don't know that it is marketed under the brand name of 'TTL Beer, '" a TTL official said, adding that if the company is allowed to sell its beer as Taiwan Beer, the sales volume would be far more impressive.
The Cabinet-level Mainland Affairs Council (MAC) in Taiwan has recently forbidden advertisements for Tsingdao and other mainland beer brands in local print and electronic media, in line with the statute governing relations across the Taiwan Strait.
The statute stipulates that mainland products should not be advertised in Taiwan without prior approval of specific supervisory organizations. As the MAC has not yet unveiled regulations governing advertisements of mainland products, relevant supervisory organizations, such as the Ministry of Economic Affairs (MOEA), have no way to screen applications for ads for mainland products.
The MAC has come up with a package of revisions to the current statute to ease regulations on cross-strait exchanges following both sides' WTO entry. Once the package clears the legislative floor, TV broadcast of Tsingdao commercials will become legal, MAC officials said.
As to the TTL trademark issue, MOEA officials said the ministry's Intellectual Property Office (IPO) will study the feasibility of revoking Tsingdao's trademark registration.
(Source: Asia Pulse)
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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.
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