Dealing with infringements

The ?set-up? day of the trade fair, therefore, can be well used also to walk around the stands and search for infringing products. It is also useful to pay a visit to the booth of the complaint center or the local enforcement authority.

In cases where a potential infringing product is detected, it is important to obtain as much information as possible about the exhibitor and the product. A digital camera or a camera-phone might be useful to secure evidence. Brochures, business cards and other types of literature are all helpful to support enforcement action.

After detecting a potential infringer, the rights holder has to decide whether or not to take action. If action is taken, the company has to decide which legal means can and should be used to fight the infringer, according to the information it receives from the local enforcement authorities and its own local lawyer. If action is taken at an exhibition, it might be necessary to follow up with the authorities to ensure that appropriate prosecutions take place.

Protecting your IPR

Filing for intellectual property rights in the form of patents or trademarks entitles a person or a company to use all legal means defined by law in case of infringements. However, these rights do not ?protect? the content of intellectual assets. It is highly recommended to combine IP rights with protection mechanisms that ensure that crucial information cannot be retrieved easily from disloyal employees or criminal outsiders. In some cases, protection measures can be more effective than a patent, e.g. the product cycle is much shorter than the time needed for a patent registration. For products with short life cycles, filing for a utility model may be more useful than a patent as the examination period is much shorter.

Strict confidentiality is one of the best protection methods and should be a main concern, especially with long-lasting products or technologies. In general, the protection of sensible information is mandatory and can be achieved by implementing some common-sense rules, such as access control and prohibiting downloads from PC stations. However, sometimes simply the fact that a product is in the market does not allow keeping a technology confidential as many technological traits can be re-engineered. In most cases confidentiality is used to protect recipes or production procedures that cannot be simulated easily. The recipe of Coca-Cola is a well-known example for keeping a combination of ingredients secret much longer than the life-time of a patent.

Safety measures

Technological development allows a variety of protection measures that can be applied for all kinds of products.

According to security experts, protection can be achieved by using three to ten security features and also by changing them on a regular basis in order to make illegal copying even more difficult.

When deciding which security feature might be feasible it should be taken into consideration whether the measure serves as a preventive protection against counterfeiting or a means of generating evidence in case of a lawsuit or administrative action against illegal copies. Preventive measures include all features that can be recognized by non-experts and without technical support (see Level 1 in the table), such as safety features on money bills. Measures that provide evidence are usually hidden and demand a complex procedure.

Measures that allow a continuous tracking of each product guarantee the highest standard of protection against counterfeiting. However, the implementation of such a complex tracking system is expensive and may not be justified although those measures also have a positive secondary effect in terms of quality control and logistics.

No matter whether a company decides to use preventive or evidence securing measures or tracks the whole production and distribution chain, if an infringement occurs the company needs explicit rights to fight the counterfeiter. Without a trademark, design patent, invention patent or utility model there is no legal foundation to prevent a counterfeiter from using another company?s intellectual rights. A reasonable combination of technical safety measures and intellectual property rights increase the probability that counterfeiters may stop the infringing activities or chose another victim with less protection.
To know more, the whole issue is available (after a free subscription) on China Briefing website with others archives
For more information on China’s legal and tax issues or to ask for professional advices in related matters, please write to info@dezshira.com

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