Intellectual Property Issues In China
GOOD AND BAD NEWS
IP is very much an emotive issue when it comes to China, and there are many misconceptions or misunderstandings about the subject and how to cope with IP when it comes to “the China issue”. Let’s examine some of the more common mistakes :
I have already registered my trademark and therefore it is covered
China is signatory to all the international protocols that the international community has drawn up concerning the registration and protection of international IP. Therefore, China follows the same system as is in place as most nations follow. This means:
- Registration of your mark
International recognition is only granted provided your mark has previously been registered in five other jurisdictions (thus proving its ‘international’ status) or can be otherwise argued as an ‘internationally considered brand’ – which is a debatable point and subject to legal interpretation. This means if you have only registered your mark in your home country – you are not covered in China. For practical purposes however, even if you have international protection, we still recommend registering in China as courts may have difficulty in recognizing international protocols if they are not used to them, and this will mean more time and expense in legal fees to educate the court and provide evidence of the significance of such protocols and China’s adherence to them. Trademark registration in any event is inexpensive and should be undertaken as a matter of good business sense. - The Legal System in China is Biased Against Foreigners
Actually, China’s courts are improving in upholding claims of plagiarism. It is also worth noting that the vast majority of infringements in China are between Chinese firms themselves, and not purely international firms being targeted. Most of the valuable brands in China are of course Chinese – mass sales of foreign products in China is still fairly limited. Courts can and do, in the main, uphold claims by foreign companies where the evidence is properly introduced and in order. The problem is not with the judiciary, although they are not perfect either. The main issue is that of enforcement – actually stopping the infringement once a judgment in your favor has been awarded. - Enforcement
As mentioned, more tricky. Should enforcement be an issue, then we recommend the hiring of off-duty Public Security Bureau personnel (or even PLA) to turn up at the offending premises, look threatening and intimidating. This usually does the trick. Anything beyond this and you will need to engage further legal action – and that gets expensive.
The reality is you probably will get ripped off. Even our own “China Briefing” brand and the name “Dezan Shira & Associates” have been misused in the past by unscrupulous China-based businessmen – and they were westerners ! (see China Briefing April 2004 issue for details of one such case). This means you need to defend yourself from the outset against the likelihood of such behavior. Getting your brand registered in China is the first line of defense.
To know more, the whole issue is available (after a free subscription) on China Briefing website with others archives
