Push Up the Plagiarism: It's a Photo, No ... It's a Painting

Joel Martinsen of the great site about Chinese media, advertising, urban life and many more fascinating subjects, Danwei.org, has a great blog about 'Painted plagiarism of push-up photograph' read here.

R&D in China: No Genuine Research, Only Development Thanks to Poor Execution IPR Laws

New Europe reports about EU firms' enthusiasm about China's market prospects and their concern about the execution of the IPR laws in China.

" “China’s intellectual property laws are not bad. The problem is their implementation,” [EU’s Chamber of Commerce in China (EUCCC) President Joerg] Wuttke said. One result of the poor execution of IPR laws is that companies don’t conduct “genuine” research and development in China, he said. “Companies build R&D centers, but the focus is on development, not really on research,” Wuttke said. “For the research part, companies are more willing to transfer Chinese scientists elsewhere to guarantee IPR protection.” "

Read the New Europe article here.

Promotion and Protection of China's Culture: Hard Copyright For Soft Power

In The Economist special report on China and the US called 'Overkill' where the author James Miles postulates the opinion that China is piling up more weapons than it appears to need, Mr Miles also writes about the need for China to develop its soft power:

"Soft power was mentioned for the first time by a Chinese leader in public in 2007. Culture, said Mr Hu [Jintao, China's president IP Dragon] (oblivious, it seemed, of the cold-war overtones of his remarks), was of growing significance in the “competition in overall national strength”. China should therefore “enhance culture as part of the soft power of our country”."

Read The Economist article here. Copyright can protect cultural manifestations, so makes copyright crucial to develop China's soft power.

US-China Green Technology Transfer Strained By Circular Reasoning

Last month (October 22nd 2009) The Economist had a special report about the relationship between China and the US. In the article 'The price of cleanliness' the circular reasoning is pointed out that makes solving the environmental challenge in China very difficult:

"Technology transfer will also be a thorny issue. China resents the idea of American clean-energy companies taking advantage of China’s predicament to profit from their expertise. But American companies will not be keen to hand over advanced technologies without adequate protection for their intellectual-property rights. China’s lack of attention to this area is bitterly resented by many American businesses, not just high-tech ones."

Read James Miles' article for The Economist article here.

In other words: China lacks trust that US will transfer their patented green technology; US lacks trust China is protecting US green IPRs; etc.; etc. Wood absorbs water; water rusts metal; metal breaks up earth; earth smothers fire; fire burns wood; etc.; etc.

UPDATE:
China also wants Japan to transfer its patented green technology. Kyodo News International reports via iStockAnalyst, read here: "[Chinese Vice Premier] Li [Keqiang] requested that Japan accelerate the transfer and promotion of environment-related technology to China, while promising that China will ensure that the intellectual property rights of Japanese companies are protected. Japan and China are scheduled to hold a first working-level meeting on intellectual property rights in Tokyo on Nov. 19."

iSuppli: China's Grey Mobile Phone Market Explodes

In China there is a vast amount of grey cell phones, which are phones manufactured in China that are not recognised or licensed by government regulators. Grey market shipments are set to be 145 million units. Read market research firm iSuppli's article about it here.

The rise of the small scale handset makers that provide the grey cell phones was helped by the providers of chips such as Mediatek from Taiwan, which also offer turnkey software products.

Sino-Korean Dispute About Dragon Boat Festival

A bit late, but too interesting to let it pass unnoticed, here is the article by Dr. Zhang Quanyi about South Korea and China who both applied at the UNESCO to put the same dragon boat festival on the list of Intangible Cultural Heritages; Dano versus Duanwu, see here. Who is going to win the ... eh race.

On the list are already the following intangible cultural heritages:

In 2001 'Kun Qu Opera' ;
in 2003 the Guqin and its music;
in 2005 the Uyghur Muqam of Xinjiang;
in 2005 the Urtii Duu - Traditional Folk Long Song.
See here.

First Issue The WIPO Journal Includes Articles About IPR in China

The first issue of the brand new 'WIPO Journal: Analysis and Debate about Intellectual Property Issues' has just been published. I have not read the issue yet, but I am sure Professor Peter K. Yu, the general editor of the magazine includes China in his article. So do Handong Wu and Peter Drahos. And probably also Christoph Antons, and maybe the other authors too. Check it out for yourself:

The WIPO Journal First Issue

Foreword
Francis Gurry
Director General of the World Intellectual Property Organisation

The global intellectual property order and its undetermined future
Peter K Yu

The pre-history and establishment of the WIPO
Christopher May

International norm-making in the field of intellectual property: a shift towards maximum rules?
Annette Kur

Some consequences of misinterpreting the TRIPS Agreement
Susy Frankel

Seizure of generic pharmaceuticals in transit based on allegations of patent infringement: a threat to international trade, development and public welfare
Frederick M. Abbott

Threshold requirements for copyright protection under the International Conventions
Sam Ricketson

Rethinking of copyright institution for the digital age
Yoshiyuki Tamura

Internet piracy as a wake-up call for copyright law makers – is the “graduated response” the good reply??
Alain Strowel

The Lisbon Agreement’s misunderstood potential
Daniel Gervais

What is “traditional cultural expression”? – international definitions and their application in developing Asia
Christoph Antons

One hundred years of progress: the development of the intellectual property system in China
Handong Wu

The China-US relationship on climate change, intellectual property and CCS: requiem for a species?
Peter Drahos

Intellectual property and the transfer of green technologies: an essay on economic perspectives
Keith E Maskus

I wouldn't want to be starting from here, or why isn't intellectual property research better than it is?
Jeremy Phillips

Professor David Llewlyn Explained All IPRs in One Hour

IP Dragon was attending yesterday evening the very inspiring lecture of Professor David Llewelyn at the University of Hong Kong, about the importance of intellectual property rights for not only experts, but everybody.

Professor Llewelyn made clear that the lecture was a public lecture meant for non-experts; the normal consumers; and put experts and expertise in perspective. He quoted Lord Denning that in the dictionary for example the word barrister comes directly after bankrupt and just before bastard. "IP needs to be understood, especially in this part of the world [referrring to Asia] by many constituencies that don't relate to each other. Patent people can only think about patents. Trademark people about trademarks etc." Professor Llewelyn was determined to speak only about the good things of intellectual property rights, so not about counterfeiting, pirating and the pressure of the developed countries on local developing governement officials.

Professor Llewelyn was referring to patent in all its meanings. The sentence: "It is patent" for example means "It's available." He was recalling Huawei who overtook the number one position of the company with the most patents from Panasonic. Professor Llewelyn was going to say only good things about IPRs, but as a good friend of IPRs, he critisised IPRs starting with patents: most were vanity publishing.

Then he was filleting the quality of some Hong Kong patents, and after a pit stop to the "stepsister of patents': trade secrets, he was off to trademarks. Professor Llewelyn told about the dispute between Jiangyou in Sichuan province and Anlu in Hubei province, who both claim their city as the hometown of the famous poet from the Tang dynasty called Li Bai.Jiangyou was not amused when they became familiar with a commercial on China Central Television (CCTV) that identified Anlu as the hometown of Li Bai. According to the South China Morning Post, Xinhua reported that the Jiangyou had registered the trademark "the Hometown of Li Bai, the City of Chinese Poems" in 2003. Therefore Anlu's commercial allegedly violated the trademark. Never mind that Jiangyou nor Anlu was the birthplace of the ancient poet, which was small town in what now is Kyrgyzstan, as the South China Morning Post mentioned.

Professor Llewelyn urged companies to think ahead: Chinese computer maker wanted to expand abroad, but they forsaw problems with the trademark legend that was already trademarked in many countries. Therefore they decided to change their name into Lenovo, which is distinctive enough and not descriptive or laudatory. Professor Llewelyn pointed out the possibility that trademarks could be used in an unfair manner, to bully other companies into submissiveness. As an example he gave KFC who sued an neighbourhood restaurant for infringement of the use of the trademarked term 'family feast'. He draw the history of Hong Kong artist Michael Lau and his relation to trademarks/bootlegs.

Genericide was discusses as well. Escalator, tabloid were generic names, but not roller blades.

Then the subject changed to geographical indications. The danger always lurks that two states, such as Indonesia and Malaysia start fighting over a term for food: such as who owns Nasi Lemak.

The territorial nature of intellectual property rights were discussed.

Copyrights you obtain for nothing; but the flipside is that they only forbid the right to copy; and another challenge is the digital era, as you can read in "Free", the book by Chris Anderson. Professor Llewelyn referred to China's threats to sue over fake terracotta warriors, as a subject that is outside the scope of copyrights. Professor Llewelyn compared it with the Egyptians that want to copyright the pyramids.
Normal copyrights are the life of the creator plus 50 years (China, which is TRIPs standard) or 70 years (many countries). In the UK there is special legislation for the play 'Peter Pan, or the boy who whould not grow up' to give it perpetual copyright in order to finance the Great Ormond Street Hospital.

Among intellectual property rights are strange creatures, such as database rights.
And many new players such as UNESCO are getting in to the act as well to protect rather exotic new intellectual property rights.

Intellectual property rights are liabilities, unless you do something with them. Commercialisation is getting more popular.

There are only five countries in the world with a net balance of payment: US, UK, Japan, Sweden and France. China has taken this well into account and makes sure that it is self innovating in order to avoid to pay too much royalities.

When one analyses intellectual property rights one can do it from many perspectives. An academic (access to information) has another perspective than an author of a book (control of information). Professor Llewelyn told about a student in Beijing who asked him to sign a copy of his book that was "better bound than [his publisher] Sweet & Maxwell."

Anti-competition law is becoming more important in intellectual property right law. Professor Llewelyn advocates a balance between extremes.

A development we must take an eye on is according to Llewelyn developing countries, such as India, that demand green technology of the developed world.

Hong Kong lawyers were always more interested in transactions of IPRs, registering etc. than in advising them about how to best exploit their IPRs.

In 60 minutes Professor Llewelyn covered a lot of ground. Ron Yu asked him whether IPRs are not getting too complicated for the average consumer. Professor Llewelyn answered: "Yes and also too complicated for the experts."

IP Dragon asked him about his take on the new international IPR forum ACTA, and whether it would be a threat to forums such as WIPO and WTO's TRIPs? Professor Llewelyn answered that he does not like the new forum, it will be more complicated.

So there will be a great need for people who can explain and illuminate these complicated issues in an inspiring way in the future, just like Professor Llewelyn.

"Games on iPhone Are 50-90 Percent Pirated"

Simon Carless of Gamasutra wrote that Vice-President Alan Yu of game developer ngmoco:) said at the GDC in Shanghai that "iPhone game piracy is a big issue, with 50%-90% piracy estimated in the first week of release on Ngmoco games." 50 to 90 percent of the potential income wiped out, thrashed, removed from the balance sheet. This gives the name of the upcoming ngmoco game "Eliminate" a whole new meaning. Read Mr Carless' article here.

Professor Llewelyn Asks Rhetorical Question About IPRs: "Too Important to Leave to the Lawyers?"

Tonight, IP Dragon is looking forward to attend the lecture of Professor David Llewelyn about the relevancy of Intellectual Property Rights for everybody.

"As Premier Wen Jiabao has been saying since 2004, world competition in the 21st century will revolve around competition for intellectual property rights (IPRs). But what are these rights, what can you do with them and how can we foster the innovation and creativity they protect?"

Professor David Llewelyn is Honorary Professor IPR Law at the University of Hong Kong and King’s College in London. He is also Deputy Chairman and External Director of the IP Academy in Singapore, and Partner and Head of IP at international law firm White & Case in its London office, and Chairman of IPR-X (Asia Pacific) Pte Ltd, a Singapore-based IP strategy and investment company. Professor Llewelyn is one of the world’s leading experts on the protection and commercialisation of IPRs.

Professor Llewelyn is well known for his co-authorship of the book: Cornish, William & David Llewelyn, 'Intellectual Property: Patents, Copyrights, Trademarks and Allied Rights'.

See the blog 'Professor David Llewelyn Explains All IPRs in One Hour' about his lecture here.

Chinese Counterfeit ICs Sold To US Navy. How To Identify Them?

With the Somalian pirates hijacking ships (a Chinese container carrier fell into their hands), key words such as "piracy" and "pirates" seem to be reclaimed by the old fashioned thugs. Read here. However, the newer version of the pirates: trademark counterfeiters and copyright pirates can have just as deadly an effect. October 9, 2009, the US Department of Justice released a press statement that three California family members were indicted in connection with the sales of counterfeit high tech parts (read Integrated Circuits (ICs)) to the US navy military. The counterfeit ICs were imported from China and sold via the internet. Read the press release here.

What to do when even your navy is not safe against counterfeit ICs? Well first you have to be able to identify what is counterfeit and what is not. The Semiconductor Industry Associtation Anti-Counterfeiting Task Force (SEMI) just announced that it developed new standards to facilitate the identification of counterfeit ICs. Read more about it on Electronics News here.

ASEAN-China: IPR Cooperation and Standard MOUs

The Association of East Asian Nations (ASEAN) which includes Thailand, Indonesia, Philippines, Singapore, Malaysia, Brunei Darussalem, Cambodia, Myanmar, Lao PDR and Viet Nam will meet in Hua Hin, Thailand, from October 23 to 25.

The ASEAN, ASEAN + 1 (ASEAN plus China), ASEAN + 3 (ASEAN plus China, South Korea and Japan) and East Asian Summit (ASEAN plus India, Australia and New Zealand) are held in Hua Hin, Thailand from Oct. 23-25.

According to Xinhua, documents to be signed by ministers include:

• Memorandum of Understanding between ASEAN and China on Cooperation in the Field of Intellectual Property;
• Memorandum of Understanding between ASEAN and China on Strengthening Cooperation in the Field of Standards, Technical Regulations and Conformity Assessment.

Read Deng Shasha's article here.

Russia to China: Kalashnikov's Copyright Should Be Protected

Topix reports that Russia and China are trying to reach an agreement on copyright protection of the Kalashnikov, the world famous assault rifle. Read here. More about the most famous Kalashnikov the AK-47 here.

Massive Chinese Copyright Trade at Frankfurt Book Fair

"Die Chinesen sind da," ("The Chinese are there", in German) was the motto of the biggest book fair in the world: the Frankfurter Buchmesse (October 6-10, 2009). China was Guest of Honour and the Chinese book publishers did show themselves prominently: "Chinese publishers have exported 1,310 copyright items, and imported 882 titles to foreign counterparts."

Read the Xinhua article, via China.org.cn, here and see the Frankfurter Buchmesse's Guest of Honour site here.

IPR/Espionage Ping-Pong Case: Fiat Sues Great Wall, Great Wall Sues Fiat

Fiat sued Great Wall, because it alleges that the Great Wall Peri infringes the intellectal property rights of the FIAT Panda. After this Great Wall sued FIAT at the Shijiazhuang People's Court, based on "evidence" provided by FIAT to the court that they made photo's of production facilities.

Fiat suspected Great Wall to have infringed its Panda's IPRs (ping), so it made photo's of Great Wall Peri's production facilities, so Great Wall sued Fiat for espionage (pong). Is this how it went? Is this how it continues? Ping-pong, ping-pong.

Read the China Briefing article here, or at the Financial Times, via the site of Autonews Gasgoo, here.

Comment of the week:
IP Dragon's friend Richard Osinga (writer and digital entrepreneur) wrote: "I guess the Chinese don't like it if an Italian car manufacturer calls its model Panda."

USCC 2008 Report to Congress: From Visible IPR Infringements To Undectable Cyber Espionage

The US-China Economic and Security Review Commission came up with their 2008 Report to Congress. The conclusion includes:

• "China continues to violate its WTO commitments to avoid trade distorting measures. Among the trade-related situations in China that are counter to those commitments are restricted market access for foreign financial news services, books, films and other media; weak intellectual property protection; sustained use of domestic and export subsidies; lack of transparency in regulatory processes; continued emphasis on implementing policies that protect and promote domestic industries to the disadvantage of foreign competition; import barriers and export preferences; and limitations on foreign investment or ownership in certain sectors of the economy."
• "China has an active cyber espionage program. Since China’s current cyber operations capability is so advanced, it can engage informs of cyber warfare so sophisticated that the United States maybe unable to counteract or even detect the efforts."

So it's all about intellectual property rights violated, noticed or unnoticed. Read the 405 page report here.

China Written Works Copyright Society Objects Google Settlement

The China Written Works Copyright Society, representing 570 Chinese authors, objects to be included in the Google Class Action Settlement, between Google and US authors and publishers. They claim that the copyright of the Chinese authors is infringed. Read Elaine Kurtenbach's article with Bonnie Cao and Ji Chen, for Associated Press here.

20th Joint Commission on Commerce and Trade Between China and US

China and the US will hold their 20th Joint Commission on Commerce and Trade (JCCT) in Hangzhou (Zhejiang province) on October 29th 2009. The first JCCT was established in 1983 as a forum for the two countries to discuss trade and intellectual property matters. It will be the first JCCT meeting under the Obama administration. Li Xianzhi wrote for Xinhua that the meeting will be co-chaired by Chinese Vice Premier Wang Qishan, U.S. Secretary of Commerce Gary Locke and U.S. Trade Representative Ron Kirk. Read more here.

Economic Espionage Case Against Suspects Allegedly Sponsored By China

The time that the Russians were the only bad guys in James Bond movies or John le Carré books is over. Jaikumar Vijayan has written an interesting article for Computerworld called 'Trial set to begin in economic espionage case involving China'. The suspects that allegedly stole secrets from Netlogic Microsystems are prosecuted under the Economic Espionage Act. Read here.

Read Dan Levine's article 'Defense blames Chinese Espionage Case on Neglected Wive' for Law.com here.

IPR Challenges in Geely-Ford Talks About Volvo

Keith Naughton and Cathy Chan wrote about the effort of Geely to buy Volvo of Ford jeopardized because of intellectual property rights related challenges, read the Reuters article here.

The struggle about IPRs comes in the wake of "the FBI’s Oct. 14 arrest of former Ford engineer Xiang Dong Yu, 47, who was charged with stealing trade secrets from Ford in an effort to get a job with a Chinese car company."

Xiang Dong Yu, worked at Ford from 1997 to 2007, according to the U.S. Justice Department and "is is charged with stealing more than 4,000 Ford documents and using them to seek employment with Shanghai Automotive Industry Corp., according to the U.S. indictment. He eventually was hired by Beijing Automotive Corp. in China, according to the indictment."

Professor Peter K. Yu General Editor of WIPO Journal: Analysis and Debate of Intellectual Property Issues

There is a new peer reviewed IPR journal: WIPO Journal, a platform for the global IP debate. The prolific Professor Peter K. Yu, will be its general editor and specialist for China and the United States. I am looking forward to it very much. Read more about it here.

Gartner Predicts 2012 Software Piracy in China Will Fall To 50 Percent

Kelvin Soh and Melanie Lee report that "Gartner estimated that software piracy rates in mainland China would fall as low as 50 percent by 2012, putting it almost on a par with rates in developed Asian markets like Hong Kong. See there Reuters article, via the MSNBC site here.

The Business Software Alliance claims the following economic benefits of lowering software piracy in China from 82 percent in 2008 to 72 percent in 2011, see here.

Revolutionary Lessons For China From Michael Carrier's Book 'Innovation for the 21st Century'

'Innovation for the 21st Century, Harnessing the Power of Intellectual Property and Antitrust Law' by Michael A. Carrier. Oxford University Press.

Professor Michael Carrier of Rutgers University School of Law, wrote an excellent book about intellectual property rights (IPR) law and antitrust law, the intersection between the two disciplines and how both systems can be improved. IPR and antitrust law have the same goal, but use opposite methods: where IPR law grants, protects and enforces monopolies that give positive incentives to innovation, antitrust law is trying to avoid and combat monopolies that give negative incentives to innovation. Not only does Mr Carrier explains in a very clear language with a lot of good examples what the problems are, regarding patents, trademarks and copyrights, but he also comes up with ingenious, concrete and concise answers. In fact he comes up with ten revolutionary (which is defined in the I Ching as "fire ignites within the lake, defying conditions that would deny it birth or survival") proposals to resolve the biggest problems of the US IPR-antitrust system.

To some degree these solutions could be applied to other jurisdictions, such as China (innovation is crucial for China's economic growth), as well. Let’s look at his proposal to reduce invalid patents, which could limit competition and thus increase price which leads to adverse effects on innovation and complicated, complex and expensive antitrust cases. Bad patent award legal rights that are far broader than what their relevant inventors invented, in regard to technologies that are economically significant:

"1. A post-grant opposition system that would allow any party to challenge a patent after it is issued. This would target the most valuable patents and provide a quicker and cheaper determination of validity that litigation."

Advantages:

• Instead of perfecting the application process, post-grant opposition makes use of the knowledge of competitors and patent applicants;
• Litigation is costly, skewed incentives (patentees spent more than infringers and a successful validity challenge benefits all infringers so you get a free-rider problem);
• Reexamination (limited participation for requesters as well as estoppel provisions);More information can lead to higher quality patents;
• Post-grant does not require early disclosure: there is no risk that sensitive information fill fall into the hands of competitors.

Disadvantage:

• Mark Lemley, Douglas Lichtman and Bhaven N. Sampat propose in their 2005 article ‘What to do about bad patents?' (free download at SSRN via pdf) also the post-grant opposition system. They also warn about the risk of collusion: “If an applicant can get a buddy to raise a straw man challenge to his patent and, through that, walk away with a stronger presumption of validity, the whole process will collapse.”

Could this be applied to China's patent system? Like many countries the China Patent Office has the problem of issuing invalid patents. Valid patents could foster innovation, while invalid ones “threaten to increase price and limit competition without any countervailing benefits”, according to Carrier.

1984 Patent Law: First China had an pre-grant opposition procedure (sometimes also called dissenting procedure). Before patents were granted the China Patent Office would publish them three months before, so any person could lodge their opposition at the China Patent Office. If at the end of the three month period no opposition procedure was filed, the patent was granted. Any person could initiate an invalidation procedure at the Patent Re-examination Board (PRB).

1992 Patent Law: Post-grant revocation procedure was set up. Within six months after the grant of patent anyone could request the Patent Office to revoke the patent (article 41). The patentee or the requester of the revocation procedure can file a request for re-examination of the decision at the PRB. The decision (invention patent, but not utility patent nor design patent) of the PRB can be appealed at a People’s court within three months. After the six months after the grant of a patent had expired any person could use the invalidation procedure at the PRB to invalidate the patent. The decision of the PRB (invention patent, but not utility patent nor design patent) can be appealed at the People’s court within three months.

2000 Patent Law: Post-grant revocation procedure was eliminated. A change in the invalidation procedure is that the PRB decision regarding utility patent and design patent can now also be appealed at a People’s court within three months.

2008 Patent Law: Invalidation procedure Every patent infringement case is met by an invalidation procedure.

China never had a post-grant opposition. However, they had a pre-grant opposition system, but because there were few oppositions and they wanted to shorten the examination time and quicken granting of patents, they god rid of it. The last two reasons could also be solved by implementing a post-grant examination. Mr Carrier's book is interesting and can be read by a wider audience interested in patent reform. China's Third Amendment to its Patent Law did not make any great changes in its patent prosecution provisons. Maybe, some of Mr Carrier's lessons will be taken into account for the next amendment.

Illuminating book for everyone interested in innovation and the IPR and antitrust systems that can harness it.

Sweet Irony: Is IP Dragon Liable For Hosting IPR Infringing AdWords?

Law is often walking a few steps behind the developments in society. I propose the term "law lag", whereby I apply the "cultural lag" concept developed by Thorstein Veblen to law. Of course intellectual property and cyberlaw are not immune for this. One important question that should be answered is to what degree are internet service providers liable for content that infringes intellectual property rights on their site. In Europe there have been cases of Louis Vuitton; Gucci; and Chanel against eBay. And of course in China there were the Baidu and Yahoo! China cases (both companies were sued by music companies at different times with different outcomes), see here.

Another category of cases that is of interest is about Adwords. September 22, 2009, the Advocat-General of the European Court of Justice gave his advice for a pre-judicial decision about whether a Google adwords (for example where Louis Vuitton products are promoted by other companies than authorised by Louis Vuitton or even selling fake Louis Vuitton products) can infringe Louis Vuitton's trademark, that was requested by the French Cour de cassation. In short the advice included: the links in AdWords used do not equal to trademarks (those could be infringed on the sites to which they lead), the AdWords do not prejudice the functions of the brand, guaranteeing quality of the goods or the communication- or the promotional function. Contributory infringement is not part of the legislation in most EU countries. However, if the trademark holder finds that the AdWords link to IPR infringing websites and requests Google to remove these links, Google will be held liable and the trademark holder can get damages. Google was not exempt from liability for hosting, because it is not a neutral information instrument, as is requested by article 14 EC directive 2000/31.

Why I am writing this, you might aks, since IP Dragon is about IPR in China and not EU law?

Well although most of the IPR infringing products, that are key in all of these cases, originate from China, I got the following email (September 24, 2009) that concerned yours truly:

"Dear Mr. Friedmann,
I am a regular reader of your blog, and I enjoy your articles about IP in China. That being said, I noticed today a peculiar Google Ad on your page: « Louis.V. Handbags 50% Off ».Intrigued, and you may guess why, I followed the link : http://www.handbagstime.com/?gclid=CMqR2oDQiZ0CFZQA4wodBG8J3A hum…. A quick look at the « contact us » page : http://www.yeslvgifts.com/contact_us.html It seems to confirm what I thought…What do you think ?
Cheers
Philippe"

This could happen, since IP Dragon writes frequently about fake, counterfeit and IPR infringing products and makes use of Google AdSense (which is the mirror of AdWords), which adapts its content to the subjects and some AdWord users choose these categories to promote their maybe dubious goods. If I would not block these AdWords after I was warned, in principle I would end up being liable. What do you think? Thanks, Philippe, for pointing me out the links.

Photo: Danny Friedmann

Murdoch, Procrustus and the WTO Copyright Cases

October 12, Sky Canaves of the Wall Street Journal has an article about Rupert Murdoch who is urging China to enforce copyright piracy and open up its market for copyrighted products. See here (or on page 8 of the printed WSJ). Mr Murdoch used the World Media Summit in Beijing to tell the Chinese leadership present that these two points are crucial if China wants to achieve their ambition to develop a global media industry.

Mr Murdoch's advice is similar to the two claims the US made against China at the WTO dispute settlement body: DS 362 (China - Measures affecting the protection and enforcement of intellectual property rights) and DS 363 (Measures affecting trading rights and distribution services for certain publications and audiovisual entertainment products), based on the minimum enforcement levels of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs) an integral part of the Agreement Establishing the World Trade Agreement (WTO Agreement).

Thinking about TRIPs, and the divergent views it provokes, IP Dragon was reminded about the story of Procrustus. Procrustus was a "hospitable" man who invited guests to his home. There was one problem. If the bed was too big for the guest, Procrustus simply stretched the guest by brute force. And if the bed was too small for the guest, Procrustus would amputate the parts that could not fit in the bed. And because Procrustus had in fact two beds, no guest was ever fitting for both beds. If you are in an imaginative mood, you can see the Greek myth as a metaphor for China that was invited over to do trade under the WTO system, of which TRIPs is an integral part. Some argue that TRIPs is too demanding and that countries such as China are stretched to the limit, while some argue that TRIPs' ambition level is just too low and that more needs to be done like cutting off IPR infringing activities in China. And the two beds can be seen as a double standard in historic perspective: when the developed countries were developing, for example when the US broke free from Brittain, they were infringing IPR as well, and now that they are a developed country to expect developing countries to protect and enforce the same minium standards of IPR rights. Even though TRIPs has built in some flexibilities, it is considered by some as a straight jacket, a "one size fits all", "take it of leave it" treaty.

Picture is taken by exo_sh

Is Coffee-Mate a Generic Term for Coffee?

Stan Abrams over at China Hearsay is posing a question mark whether Coffee-Mate in Chinese is a generic term and therefore diluting the trademark of Nestlé. See the China Hearsay article which is not devoid of humour here.

China Appeals WTO DS 363 About Market Access of Copyrighted Goods

China is appealing the panel decision DS 363 (Measures affecting trading rights and distribution services for certain publications and audiovisual entertainment products) by the Dispute Settlement Body, in which many of the US allegations were uphold. According to the BBC, no documents with the grounds for the appeal have been released, yet.

How does a DSU (Dispute Settlement Understanding) appeal work?

• "A standing Appellate Body shall be established by the DSB. The Appellate Body shall hear appeals from panel cases. It shall be composed of seven persons, three of whom shall serve on any one case.": article 17 (1) DSU;
• "As a general rule, the proceedings shall not exceed 60 days from the date a party to the dispute formally notifies its decision to appeal to the date the Appellate Body circulates its report. In fixing its timetable the Appellate Body shall take into account the provisions of paragraph 9 of Article 4, if relevant. When the Appellate Body considers that it cannot provide its report within 60 days, it shall inform the DSB in writing of the reasons for the delay together with an estimate of the period within which it will submit its report. In no case shall the proceedings exceed 90 days." article 17 (5) DSU;
• "An appeal shall be limited to issues of law covered in the panel report and legal interpretations developed by the panel." : article 17 (6) DSU;
• "An Appellate Body report shall be adopted by the DSB and unconditionally accepted by the parties to the dispute unless the DSB decides by consensus not to adopt the Appellate Body report within 30 days following its circulation to the Members." : article 17 (14) DSU.

This case, DS 362, can be read in connection with DS 363. Restrictions of market access of copyrighted goods can be conducive to a copyright piracy rich climate.
Read Deng Shasha's article for Xinhua here.

EU Afraid To Share Sensitive Proprietary Info With China

The executive summary of the 2009 Position Paper of the European Union Chamber of Commerce about China shows the concerns the EU has about China's alleged industrial-intervention policies and foreign investment restrictions.

"The results of the European Chamber Business Confidence Survey 2009, [..], indicate that European investors in high-tech and branded goods are more interested than ever in the Chinese market. However they are extremely cautious about further investment. They have concerns about the protection of Intellectual Property Rights if they transfer technology, and about the relatively unpredictable mergers and acquisitions policies. Meanwhile, the barriers to market entry – the establishment costs in capital requirements, licensing, forced joint ventures and ownership caps – are making China less and less appealing as an investment destination for European companies."

The executive summary of the paper states that the EU is more important for China than vice versa. China's exports to the EU represent 7 percent of China's GDP, while the EU's export to China represents only 0.7 percent of the EU's GDP. Therefore, the EU claimes it is in the interest of China, to open up its markets, so that EU companies will continue to invest in China.

The paper itself consist of four themes:

• market access (An important channel of knowlegde transfer is the licensing of patent-pending or patented inventions, which “typically involves the purchase of production or distribution rights and the underlying technical information and know-how”, according to Keith E. Maskus, who wrote extensively about the subject. See 'Transfer of Technology and Technological Capacity Building. ICTSD-UNCTAD Dialogue,' 2nd BellagioSeries on Development and Intellectual Property. Sept. 2003, pg 18-23. So, when the protection/enforcement of IPRs in a developing country is less than perfect, chances are bigger that companies from developed countries transfer technology via exports or foreign direct investments, instead of licensing. Also, according to the executive summary China made a not very generous offer during the negotiations of the World Procurement Agreement (WPA), which would delay China's accession. I hope to speak about the IPR implications of the WPA with
• transparency "The promulgation by ministries ofadministrative rules and interpretations is still generally characterised by a disturbing lack of transparency.";
• administrative coordination;
• IPR: "there is a growing concern amongst European companies about the leakage of confidential information which can occur at various stages of business development, such as: project approvals, product certification, environmental impact assessments, patent filings, marketing approvals and registration. For example, during the CCC process (China Compulsory Certification, a precondition to market access for 130 product categories), highly confidential information, which goes far beyond the scope of information necessary for the approval concerned, is frequently requested by testing labratories."

In the same vein: the EU has problems with article 19 of the Third Amendment of the Patent Law (passed on December 27, 2008) which prescribes any entity or individual intending to file a patent application abraod for an invention-creation made in China, shall apply in advance for a confidentiality examination conducted by the patent administrative department under the State Council.

So in order to get market access or intellectual property protection EU companies need to share confidential information. However, they are afraid that if they do, there is a chance that this information is misappropriated. For example given to a Chinese company that can register first or make sure that the information belongs to the prior art or prior design.

Read the executive summary here (10pg PDF).

IPR Protection For Traditional Chinese Medicine Needed

On April 1st, IP Dragon wrote about how to protect Traditional Chinese Medicine, see here. And it was certainly not an April Fool's Day joke. But a lot in this fields need to be done. Exactly that is pointed out by the State Council (the highest legislative body) which came up (April 21st, 2009) with "Some Opinions of the State Council on Supporting and Promoting the Development of the Traditional Chinese Medicine Industry, No. 22, 2009."

Relevant passages are:

IV. Promoting the TCM inheritance and innovation

ii. (..) You should strengthen the support and protection of famous brands, famous trademarks in the TCM industry; optimize the export structure of TCM products, enhance the added value of export TCM products, and support TCM enterprise to expand the global market.

iv. Strengthening the TCM legal system construction and the intellectual property protection: we should actively promote the legislation process of TCM, improve laws and regulations, strengthen TCM intellectual property protection and utilization, improve the TCM patent examination standards and the TCM species protection system, study and formulate a TCM traditional knowledge protection inventory, and gradually build a special TCM traditional knowledge protection system; and should strengthen the origin protection of good and genuine TCM materials, and transform the advantage of good and genuine medicine materials into the intellectual property advantage.

v. Strengthening the management of the TCM industry: the regions and departments concerned should strengthen the unified planning of the TCM industry, and manage the TCM in accordance with its characteristics and rules; should promote the TCM informationisation construction, build and improve a comprehensive statistical system; should promote the TCM standardization construction, build a standard system, and promote the transformation of China’s TCM standards into international standards; should rigidly supervise TCM law enforcement, heavily strike the acts of illegal medical practice in the name of counterfeit TCM, releasing false or illegal TCM advertisements, manufacturing or selling counterfeit or inferior TCM; and should strengthen the construction of local TCM management agencies, reinforce their management functions and enhance their management levels.

Marco Polo Hiuui: Knock-off Of Knock-off = Knock-off Square

Recently IP Dragon reported about Polo Santa Roberta, an "original" knock-off of Ralph Lauren's Polo brand and Burberry tartan pattern. However, when IP Dragon was taking a stroll down his Mong Kok neighbourhood, he learned that the knockoff is not so "original" after all. Marco Polo Hiuui is doing the same thing: mixing the Polo brand with that of Burberry's tartan pattern.

Ironic that Marco Polo, the iconic Italian explorer that marvelled about the Chinese technological developments and innovations of 1271 CE (actually especially the Mongol court, that, however, incorporated the best of Chinese culture and technology) that were unknown to the West, is now used as an icon for Chinese knock-offs. Given the incredible developments in China, I am sure China will again come up with original inventions, brands and artistic works, unknown to the West, soon.

"Class" Justice in Trademark Rights: Lan Kwai Fong

Lan Kwai Fong, an L-shaped expat-trap of bars and restaurants in Central, Hong Kong Island, founded by Allan Zeman (see its history here), is that well known in China and Macau many registered the name in all kinds of classes.

Neil Gough and Denise Tsang of the South China Morning Post wrote (September 14th) that Allan Zeman, Hong Kong entrepreneur is starting another aggregation of bars and restaurants in Chengdu, Sichuan province. Zeman will called it Lan Kwai Fong. In 2002 several of Zeman's British Virgin Island companies began registering Chinese trademarks for combination of the English and Chinese versions of the name Lan Kwai Fong, for restaurants, housing estate management, and beer.

However, Lan Kwai Fong has been registered in other classes by other people as well:

Luo Ming, Guangzhou (Guangdong province), registered a trademark for shoes, swimwear and other clothing in 2003

Zhuang Shaohai, Shantou (Guangdong province), registered a trademark for handbags and underware in 2006.

Chongqing (Chongqing municipality) registered a trademark for medicinal beverages, disinfactants and women's sanitary napkings.

Then there is the Lan Kwai Fong casino hotel in Macau (Macau SAR), opened last month and Lan Kwai Fong restaurant in Shamian Island on Guangzhou (Guangdong province).

Lan Kwai Fong is a case in point how imporatant your brand name is and that you have to register your tradenames in all classes of products and services that you want to be active in.

Check the Trademark Office of the State Administration for Industry and Commerce's trademark database here, click then on login and write down the name. You have to fill in a class number between 1 and 45 (International Trademark Classification under the Nice Agreement). For example class 43 is "Services for providing food and drink; temporary accomodation."

Exxon Mobil Wins 500,000 RMB Because of Trademark Infringement

Parties: Plaintiff Exxon Mobil; defendants: American Mobil International Petroleum Group and Xi'an Yanqing Technology Development Co.

Dispute: "defendants registered web addresses that included the Chinese characters for 'Mobil'." Probably with this is meant the characters 美孚 (mei3 = good, beautiful; fu2 = confidence, trust) and not the Chinese characters that translate mobil, because this word in the English language does not have any meaning. Correct me if I am wrong.

Ruling by the Shanghai No.1 Intermediate People's Court: defendants infringed Exxon Mobil's registered trade mark and engaged in unfair competition. Defendants must cease the infringing activity and pay RMB 500,000 Yuan.

Rouse's excellent newsletter China IP Extress 320 states: "The Court held that, although relevant judicial interpretations have not dealt with the issue, using another's trade mark in a web address can constitute trade mark infringement."

HK Government Wants Your Views on Copyright Tribunal Rules

click picture to enlarge

Which direction should the Copyright Tribunal Rules go?

Since 1999 Hong Kong uses a Copyright Tribunal, which is an independent and quasi-judicial body established under the Copyright Ordinance to hear and resolve disputes about:

- Licensing schemes;

- Licensing by licensing bodies;

- Determining the award for employees for using his/her work outside reasonable contemplation;

- Obtaining Tribunal's consent on behalf of owners of right of reproduction of a performance or on behalf of the owner of the performers' rental rights;

- Applications for determination of equitable remuneration to persons entitled to restrain rental by virtue of commencement of section 10 of the Intellectual Property (World Trade Organisation Amendments) Ordinance 1996;

- Applications for determination of compensation arising from contrary rights as a result of the commencement of the Copyright Ordinance.

See more about the scope of the Copyright Tribunal here.

The current Copyright Tribunal Rules you can find here.

Key proposals on the drafting approach and direction are:

* applying the relevant principles of the Civil Justice Reform as the fundamental value of dispute resolution before the tribunal;

* prescribing one standard procedure and application form for all types of applications/references before the tribunal;

* empowering the tribunal to exercise active case management;

* promoting alternative dispute resolution;

* empowering a single member of the tribunal to exercise certain adjudication powers;

* using practice directions to regulate proceedings before the tribunal, if appropriate; and

* prescribing a set of self-contained rules.

Public consulation closes September 30th, see here.

Harvest of Counterfeit Louis Vuitton and Gucci in 15 Minutes at Mong Kok Station

I was standing less than 15 minutes at the MTR station of Mong Kok, the most bustling and dense populated part of Kowloon, the peninsula of Hong Kong. I saw 5 ladies with a bag that could be counterfeit. Some were a bit shocked that I did not want to make a picture of them, but of their bags. All told me they did not buy their bag in the official Louis Vuitton or Gucci shop, and each bag costed them less than 300 HK dollar (30 euro). Conclusion: all were fakes.

IP Dragon Will Blog About Two Conferences in Hong Kong About IPR in China, Hong Kong and Europe

4 and 5 September the IP & IT: Theory and Practice conference is organised by:

• Law and Technology Centre Faculty of Law, University of Hong Kong (HKU)
• Dept of Computer Science, HKU
• School of Law, King's College London
• Faculty of Law, University of Zurich

Friday, 4 September

Panel I: Trademark Protection: Struggling Ahead.

Chair: Dr Zhao Yun, HKU

Welcome Professor Johannes Chan, SC, Dean, Faculty of Law, HKU

Protecting Brands in Europe - A Step too Far

Professor John Phillips, King's College London

Stay With Europe or Sever the Link - a Dilemma for Trademark Law in Hong Kong

Ms Alice Lee, HKU

Professor Michael Pendleton, CUHK; Emeritus Professor, Murdoch University (Australia)

Enforcement of IP Rights (Trademark) in the PRC

Ms Annie Tsoi, Partner, Deacons

Combating Counterfeit Products Online: Trademark Protection

Ms Vivian Wong, General Counsel, Asia Pacific, Chanel Ltd

Ms Pilar Woo, Senior Counsel - Intellectual Property, Chanel Ltd

Panel II: Challenges in Software Protection

Chair: Professor David Cheung, Head, Dept of Computer Science, HKU

IP Law and Software in Europe: the Struggle Continues

Dr Tanya Aplin, King's College London

Issues in Software Protection in Hong Kong

Dr Kevin Pun, HKU

Software Protection in WTO: Any Results at the End?

Professor Rolf H. Weber, University of Zurich

Software Copying and Adaption: A Case Study on Criminal Investigation

Dr KP Chow, HKU

Saturday, 5 September

Panel III: Policy, Strategy and Competition Practice

Chair: Dr Richard Wu, HKU

IP Strategy in China: from a Business Perspective

Dr Yahong Li, HKU

Competition Law Issues in Standard Setting Activities

Mr Thomas Cheng, HKU

IP as Tool of Competition Law

Professor Reto Hilty, University of Zurich; Director, Max Planck Institute for Intellectual Property

IP and Competition Law in Network Industries: A Practitioner's View

Mr Marc Waha, Partner in International and European Anti-Trust Practice, Norton Rose (Hong Kong)

Council Chamber, 8/F Meng Wah Complex, HKU

You can register online here. Email Ms Leung at fkleung@hku.hk to reserve a place.

Wednesday 9 and Thursday 10 September there is another interesting conference 'Asia-Pacific IP Forum' in Kowloon, see here and the programme here.

Hope to you see you there.

Polo Santa Roberta "Original" Mix of Ralph Lauren's Polo Brand And Burberry Tartan Pattern

Spotted today in Nathan Road, Mong Kok, Hong Kong: a shop with bags that carry the brand Polo Santa Roberta. Sounds very similar to the brand of Ralph Lauren; Polo and it looks very similar to the tartan pattern of Burberry.

Ai-ah! Another knock-off using the same ingredients: see Marco Polo Hiuui, here.

Creemers' Summary Of And Comments On DS363

Rogier Creemers of the University of Maastricht summarised 491 pages of the panel report on DS363: China - Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Product, and gave some comments, see here.

60 percent of Hong Kong Young Download Films or Music Illegally

Adrian Wan, of the South China Morning of Friday, August 21st, reported that 60 percent of young people in Hong Kong download films or music illegally, according to Hong Kong Federation of Youth Groups (HKFYG) survey.

17 perent of 559 respondents aged 10 to 24 were unsure whether they were breaking copyright law.

More can be found via the HKFYG website in the article Youth Research Centre and Lakshmi Jacota on the rise of connectivity: statistics and behaviour.

Tomatolei.com Copyright Infringement Case: Four Sentenced To Imprisonment

See the verdict of the Suzhou Huqiu District People's Court's in the copyright infringement case against tomatolei.com at the BSA site here.

WTO Report of the Panel DS363

Intellectual property enforcement and market access are interrelated. About the first part we have seen the report DS362, and August 12th 2009, WTO's panel issued a report about the latter: DS363: China - Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Product.

See here all 491-pages of the report. Must be studied. If you want to fast forward to the conclusions and recommendations by the panel, see here.

If You Have .hk HKIRC Will Give You .香港 For Free

James Nurton of Managing IP reports about an announcement from the Hong Kong Internet Registration Corportation (HKIRC). If ICANN will introduce new non-Roman country code Top Level Domain (ccTLD) names, including Chinese characters, HKIRC will give everyone with a .hk address an extra .香港 for free.

Read Mr Nurton's article here.

New Red Dawn in Patents: More Chinese than Foreign Companies Filed Chinese Invention Patents

Joff Wild of IAM Magazine has another great blog: 'Major breakthrough for Chinese companies in the patenting stakes' , read here.

Mr Wild observes that according to SIPO's statistics the first half of 2009 show that Chinese domestic companies filed more invention patents than foreign companies. In 2007 only 1 percent of all Chinese companies filed any patent. That is 99 percent to go. Mr Wild: "Can you imagine the numbers involved when, say, 10% of them are making use of the patent system?"

Yes, an exciting era has started.

Picture: Alfred Smith

CC BY-SA 2.0

Cherkizovsky Market Closed Because of Counterfeit and Pirated Goods From China

Cherkizovsky Market, Russia's biggest market was closed down after discovery of more than 6,000 containers of counterfeit and pirated goods from China worth US$ 2 billion. The market was described by Russia Today (RT) as a "country within a country". Read RT's article and watch their video about it here.

Global Times, China's other official publication beside Xinhua, does not mention the reason for the closure at all in an article called 'Can-do Russians work around trade problems', read here.

News From The Front Lines

Guest article and picture by Mikołaj Rogowski

Writing that the all-front global IPR war between the owners and the infringers is well underway might sound a bit of a truism so I will simply skip to the notable news from the trenches.

Chinese government owned China Daily and Taiwanese China Post both have some worth reading articles regarding details of the Beijing No 1 Intermediate People's Courts recent decision. The amount of +67000 dollars of compensation is by no means a substantial sum for a corporate giant of Microsoft’s size but it’s more than sure that it will be a motivation for the likes of Strongwel to make sure that no one under their roof is selling computers with illegal software.

Remember how some of the commentators used to mention that a time will come when the entire trend of litigation against Chinese based entities will turn against some weiguo firms? The time is now, it seems : China Post reports that Wall Mart and Best Buy have been sued in US court, by a Chinese company on the grounds of patent infringement. The article has some interesting data regarding the number of Chinese patent applications.

Final piece of news: not surprisingly my previous post on the topic of the health reform in china and what it means for the “western” medical companies is not the only material that focuses on the opportunities and threats that come with this Chinese reform. Go to Reuters. Once again, some very interesting numbers are attached.

This is the third guest contribution of Mikołaj Rogowski, law student at Jagiellonian University, author of several IP articles and Polish-English translations, specializes in Polish, European, Chinese and American IP law, China assistant to MEP Jan Olbrycht. His first guest contribution can be found here, second here.

Good Old Days of Counterfeiting in Hong Kong?

Adrian Burden of No to Fakes interviewed Sarah McCartney, the writer of the book Fake Factor.

Sarah McCartney: "A couple of decades ago people could only buy fakes if they went abroad for them. Part of the fun of visiting Hong Kong was coming back with a fake luxury watch that you'd got by going to a secret backstreet shop with a man who whispered at you in the street as you explored the market stalls. You'd fool your friends, then explain how you could tell the difference, adding a bit of insider knowledge to your illicit purchase. It was about being daring and exotic and had a bit of James Bond glamour to it."

Well, although this depiction of the counterfeit products purchasing of yesteryear is a bit too romantic, I agree with that counterfeiting has expanded enourmously. And these days one can hardly tell the difference between genuine and fake products.

Read the interview here.

Effect of DS362 on Copyright Piracy in China Nil?

Rogier Creemers of the University of Maastricht, Faculty of Law, has written an interesting article that will be published in the forthcoming number of European Intellectual Property Review:

'The Effects of WTO Case DS362 on Audiovisual Media Piracy in China'.

"The outcome of the recent WTO case China - Intellectual Property Rights, mainly concerned with copyright matters, was touted by both the U.S. and China as a victory. Looking beyond the rhetoric, however, shows that the effect of this case on copyright piracy in the real world is limited. The article outlines the case and analyzes its effects. Furthermore, it widens the scope of analysis, to include other factors influencing IP infringements in China, which are crucial in creating and supporting copyright piracy."

You can download the 22-page article from the SSRN site here.

Obama Endorses Fake Blackberry? Yea, right...

Jason Dean and Ellen Zhu of China Journal of the WSJ, have a nice post about a rip-off version of Blackberry called Blockberry which pretends in an advertisement to be endorsed by the president of the USA. Read here. I ask myself why did they not call the apparatus Obamaberry in the first place?

Thank you Sir CH of Mobimania (new site will be up soon)

Recession + E-commerce = Counterfeiting

Robert Klara wrote a very nice article: 'The Fight Against Fakes' for Brandweek.

His article is about:

• the economic crisis and advent of e-commerce that prove to be a fatal mix for brands; trademarks are increasingly being infringed upon; if global dimension of this fatal mix is well described by Mr Klara: "The same Wild West quality of the Internet that makes it so enticing to shoppers is also why it's most terrifying for upscale brands, most of which have little hope of foiling the sale of a fake handbag made in China and bought by a customer in South Carolina from a Web site based in Estonia."
• consumer education campaigns such as FakesAreNeverInFashion.com and Fake Watches Are for Fake People (see picture);
• brands that produce mass-market extensions of their high-end lines in China, so that they are easier to copy;
• ACTA (anti-counterfeiting treaty agreement);
• At the end of the article Mr Klara mentions luxury good firms such as Luis Vuitton and l'Oréal as plaintiffs against eBay about the question who is liable in case of goods offered on eBay that are intellectual property infringements. Mr Klara writes: "Some legal experts predict this latest ruling from London will effectively end suits against eBay." I believe that some legal experts predict this, but I do not agree with them.

Mr Klara interviewed representatives of intellectual property firm Marks & Clerk, fashion magazine Harper's Bazaar, CMO Council (council for chief marketing officers), INTA (International Trademark Association), Luxury Institute, Federation of Swiss Watches, Swiss watchmaker Les Cubeurs and the Fragrance Foundation.

Good article, read here.

Article 6ter Paris Convention Online: Hong Kong (2), China (0), Netherlands (37)

March 31, 2009, WIPO's first electronic publication of signs, emblems etc. protected under article 6ter Paris Convention for the Protection of Industrial Property, see here. On this day (July 13, 2009), if you type in China, you see only the emblem and flag of Hong Kong S.A.R. witn the stylised form of Bauhemia Blakeana. That is a very small number for such a big country such as the People's Republic of China (0) and Hong Kong (2), compared to the tiny Netherlands which protects 37 signs, emblems (including for such collective marks as Holland Cheddar Cheese etc), Germany (128), USA (117), United Kingdom (38), Italy (32). Then again Japan and France each only had two signs in the database.

EU Customs Report 2008 About IPR Enforcement Activities not IPR Infringements from China

Yesterday the European Commission Directorate-General Taxation and Customs Union (DG TAXUD) published the 'Report on EU Customs Enforcement of Intellectual Property Rights. Results at the European Border 2008'.

On page 9 we find a crucial alinea, which disclaims the scope the report:

"Although the overall amount of IPR infringing goods entering or leaving the EU cannot be

ascertained from these figures, or whether the problem is growing, the figures do show that IPR

enforcement continues to be a priority for customs authorities in the EU."

Of course it would be interesting to know whether the IPR infringements that originate from China were growing or decreasing. That was the very reason why I devised theEnforcement/Infringement Ratio, see here.

The report states that 80 percent of the cases concerned seizures that were requested by the right holder and that 20 percent of the cases were done on the initiative of customs (ex-officio). So the number of cases and articles detained and the percentages of the countries of origin and provenance were all these products come from are interesting, but only show the perception of the right holders and customs of the goods that are suspected of infringing IPRs. A few times in the report the distinction is not made between seized goods that may or may not infringe IPRs and goods that actually do infringe IPRs.

Read the report here.

Thank you Rogier Creemers for pointing out to me the report.

Fake iPhones: Rip-off or Innovation

iPhone in relation to China is in the news again. Stan Abrams of China Hearsay wrote about the alleged looming problems with Apple's iPhone trademark in China, see here. And then I was interviewed by Sophie Pilgrim of France 24, the French BBC so to say, about a video by MacMedics and about iPhones, counterfeiting and what you can do about it.

However, the third point I make about what to do against counterfeiting was not: "Get a strong legal team. This isn’t very useful in China, though, where foreign companies are afraid of saying anything because they want to continue investing in the country, since it’s very cheap to manufacture there."

It must be:

"Register your IPR's (or so you will get a strong legal team). But you need to be willing to litigate. Some foreign companies are afraid of saying anything because they don't want to jeopardise their investments in the country, and they want to keep on manufacturing there, since it is still relatively cheap."

You can check out the interview here.

May You Live In Interesting Times Online: Does China's Green Dam Includes Pirated Code?

May you live in interesting times on the Chinese internet: pre-installed filtering technology which is used to censor, a passionate opinion against it supported by a massive internet survey, and last but not least the very filtering software might be qualified as copyright infringement.

Of course I am talking about Green Dam: China wants its citizens to use pre-installed filtering software to avoid that they will be exposed to pornography and I assume also to texts that include words deemed a threat to the Chinese government. This censorship method China called Green Dam. Alexa Olesen of the Associated Press quoted an anonymous Chinese official saying that Green Dam is not compulsory, see here. However, I guess not pre-installing Green Wall might not be conducive for computer manufacturers that want to sell in China. Then again, Chen Weihua, reported in an unprecedented frank way 'Let's not allow the Green Dam software to block our way into the future' on China Daily about an opinion poll on Sina.com, which showed that 90 percent of the people polled will not use Green Dam, read here. By the way: to stop all unwelcome information is not feasible for any government; the higher the dam the more forceful the water will stream out through the cracks.

Now, US software maker Solid Oak Software has sent cease and desist letters to computer manufacturers Dell and Hewlett-Packard, because it alleges that the Green Wall software includes code of which the graphical user interface (GUI) has the same look and feel as Solid Oak's Cybersitter software, which would constitute copyright infringement.

Isn't it ironical that the filtering software that could be used (maybe with different technology) against copyright infringements itself might be pirated?

Read Mark Hachman's article for PCMAG.com, which links to many relevant PCMag.com articles about the same subject.

UPDATE

I was linking the expression 'May you live in interesting times' to the Wikipedia page about it. This is what Charles R. Stone has to say about it. Thanks Charles.

Charles R. Stone: "My vote for a possible Chinese origin for "May you live in interesting times," if indeed we should be looking for a Chinese source, is: 多事之秋。It's found a few times in classical histories and Ming dynasty novels, as a Google search will show. (Insert pages of footnotes.) The problem, of course, is that it's not used as an imprecation in these sources. It figuratively means something like "a season of much trouble." The step to "may you live in a season of much trouble," or "may you live in interesting times," is not a big one. In any event, it seems more plausible than "It's better to be a dog in a peaceful time than be a man in a chaotic period" as the Wikipedia link speculates."

Supreme People's Court of China: "Current Economic Situation Makes Granting IPR Injunctions More Difficult"

December 2008, I dealt with the 'Influence of the Financial Crisis on the Enforcement of Intellectual Property in China'. In this post I wrote:

In China there are still villages dependent on the production of counterfeit and pirated goods. The incentive for the Chinese government to enforce intellectual property and make these people de facto unemployed and thus prone to protest is not very likely. The Chinese government might temporarily look the other way when it comes to intellectual property infringement.

Well, the Chinese Supreme People's Court does not look the other way: they came up with an opinion (Opinion on Certain Issues with Respect to Intellectual Property Judicial Adjudication Under the Current Economic Situation) that says for example that courts should consider other measures than injunctions in case an injunction would run counter to the public interest.

This this not contravene China's obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs): Articles 7 and 8 TRIPs, taken together may provide, "a basis for seeking waivers to meet unforeseen conditions of hardship," J.H. Reichman, The TRIPs Agreement Comes of Age: Conflict or Cooperation with the Developing Countries, 32 Case W. Res. J. International Law, 2000, pp. 441 and 461.

Drastic times call for drastic measures, what do you think? And how temporary is the Opinion?

Read Peter Ollier's article about the opinion at Managing Intellectual Property Magazine here.

Sino-Japanese IPR Memorandum of Understanding: What Does It All Mean?

Although the text of the IPR MOU between China and Japan is not available, Adam Smith of the World Trademark Review tried to make sense of it all and prognose what the results will be of the negotiations/cooperations and asked yours truly in the process.

Read Mr Smith's article 'China and Japan sign IP rights cooperation agreement' here.

Copyright Administrative Punishment Implementation Rules (2009)

The Administrative Punishment Rules for Copyright Infringement were recently updated and will take effect June 15, 2009. Rogier Creemers, Ph.D. Researcher at Maastricht University (the Netherlands) who already obtained a Master's degree in Sinology from the University of Leuven (Belgium), sent me an email with these rules translated by him into English.

In addition Mr Creemers gives some highlights of the rules:

"- the regulations now include guidelines and a legal basis on how to deal with on-line piracy;

- the "grave circumstances" threshold present in Article 31 have been drastically lowered, and no distinction is made anymore between individual acts and work unit acts;

- the 2003 version predominantly attacted "infringing duplications" (fuzhipin). This has been changed in these rules (except in Art. 19), and replaced by "infringing products" which are defined as infringing duplications and works passed off as signed by another person (Art. 41)."

Thank you Rogier for this splendid translation.

Copyright Administrative Punishment Implementation Rule

The National Copyright Administration of the People’s Republic of China decrees

No. 6

The “Copyright Administrative Punishment Implementation Rules”, were passed in the 1st department meeting of the National Copyright Administration on 21 April 2009, and will take effect on 15 June 2009.

Translatation: Rogier Creemers

National Copyright Administration Director: Liu Binjie

7 May 2009

Article 1: In order to standardise the administrative punishment actions of the administrative management entities for copyright, protect the lawful rights of citizens, legal persons and other groups, according to the "Administrative Punishment Law of the People's Republic of China" (hereinafter abbreviated as "Administrative Punishment Law", the "Copyright Law of the People's Republic of China" (hereinafter abbreviated as "Copyright Law" and other relevant laws, administrative regulations, these rules are established.

Article 2: The National Copyright Agency as well as the relevant entities within local governments enjoying copyright enforcement rights (hereinafter abbreviated as copyright administrative management entities), in the statutory scope of their official powers, implement punishment actions against unlawful acts as listed in these rules. If other laws or regulations provide otherwise, those provisions shall be followed.

Article 3: Unlawful acts as named in these rules refers to:

(1) Infringing acts as listed in Article 47 of the Copyright Law, which at the same time damage public interest;

(2) Infringing acts as listed un Article 24 of the "Regulations on Computer Software Protection", which at the same time damage public interest;
(3) Infringing acts as listed under Article 18 of the "Regulations on the Protection of Information Network Dissemination Rights" if they damage the public interest at the same time; infringing acts as listed under Articles 19 and 25;
(4) Acts requiring administrative punishment under the provisions of Articles 41 and 44 of the "Regulations on Collective Management of Copyright;

(5) Unlawful copyright acts, which should receive administrative punishment under the provisions of other laws, regulations and rules.

Article 4: Concerning unlawful acts as listed in these rules, the copyright management administrative entities may, in accordance with the law, order cessation of the infringing activity, and mete out the following administrative punishments:

(1) warnings;
(2) fines;
(3) confiscation of illicit profits;
(4) confiscation of infringing products;
(5) confiscation of equipment for installing and stockpiling infringing products;
(6) confiscating of materials, tools and equipment mainly used in producing infringing products;
(7) other administrative punishments under the provisions of laws, administrative rules and regulations.

Chapter 2: Jurisdiction and application

Article 5: The unlawful acts as listed in these rules will be investigated and prosecuted by the copyright administrative management entities of the locality of the infringing act, the locality of the manifestation of the result of infringement, the locality of the storage of infringing products or the locality of lawful sealing or detaining. Except if other laws or regulations provide otherwise.

Investigation and prosecution of unlawful acts of infringements of dissemination rights over information networks will be the responsibility of the copyright administrative management entity of the location of the infringer, the location of the network service machines and other equipment effecting the infringing activity or the location of registry of the website.　

Article 6: The National Copyright Agency may investigate and prosecute unlawful acts of significant influence in the entire country, as well as other unlawful acts it considers it should investigate and prosecute. Local copyright administrative management entities are responsible for investigation and prosecution of unlawful acts occurring in the area under their jurisdiction.

Article 7: When two or more local copyright administrative management entities have jurisdiction over the same unlawful act, the copyright administrative management unit who was first in filing the case is responsible for investigation and prosecution of the unlawful act.

If disputes between local copyright administrative management entities occur because of jurisdiction, or if jurisdiction is not specified, a compromise solution will be worked out by both parties in the dispute; if a compromise solution cannot be reached, their common copyright administrative management entity of one level higher will be petitioned to assign jurisdiction, their common copyright administrative management entity of one level higher may also directly assign jurisdiction.

Higher level copyright administrative management entities may, if this is necessary, deal with cases of significant influence in the jurisdiction of lower level copyright administrative management entities, they may also hand over cases in their jurisdiction to lower level copyright administrative management entities to deal with; if lower level copyright administrative management entities believe that the case details of cases in their jurisdiction are significant or complex, and need to be dealt with by higher level copyright administrative management entities, they may petition the copyright administrative entity of one level higher to deal with the case.

Article 8: Unlawful acts found out, investigated and prosecuted by copyright administrative management entities, if suspected to constitute a crime under the provisions of the criminal laws of our country, should be transferred by that copyright administrative management entity to the judiciary in accordance with the "Regulations on Administrative Enforcement Bodies' Transfer of Suspected Criminal Cases".

Article 9: The period of effectiveness of administrative punishments issued by copyright administrative management entities is two years, calculation starting from the date of occurrence of the unlawful act. If the unlawful act is of successive or continuous nature, calculation will start from the ending of the unlawful act. If infringing products are still being distributed, or dissemination on a website still continues, it shall be considered as still continuing unlawful acts.

If unlawful acts are not found out within two years, they will no more be punished administratively. Except when other laws provide otherwise.

Chapter 3: Punishment procedure

Article 10: Apart from circumstances in which the Administrative Punishment Law provides the use of the simplified procedure, administrative copyright punishment shall use the normal procedure provided in the Administrative Punishment Law.

Article 11: The copyright administrative management entity using the normal procedure to investigate and prosecute unlawful acts, should register the case.

Towards unlawful acts as outlined in these rules, copyright administrative management entities may by themselves decide to file a case for investigation and prosecution, or can decide to file a case for investigation and prosecution based on materials transferred from relevant entities, they may also decide to file a case for investigation and prosecution based on the written request or report of persons of which the rights were infringed, persons concerned, or other insiders.

Article 12: The requesting person applying for the filing of a case for investigation and prosecution on the basis of unlawful acts as listed in these rules, should submit a letter of application, proof or rights, infringed goods (or products) as well as other evidence.

The letter of application should illustrate the name and surname (or organization name) and address of the party as well as the main facts and reasons for application for filing a case for investigation and prosecution.

If the requesting person entrusts a procurator to apply, the procurator should show a trust deed.

Article 13: The copyright administrative management entities should within 15 days of receiving all written request materials decide whether or not to accept and hear a case and inform the requesting person. If acceptance and hearing would not be granted, reasons should be informed in written form.

Article 14: At the time of filing of a case, a case file examination and approval form should be filled out, at the same time the relevant materials, including written request or report materials; the relevant materials of a case transferred by a higher level copyright administrative management entity or a relevant entity, the inspection reports of law enforcement officers etc. should be enclosed, and examined and approved by the responsible person of this entity, two or more case-handling staff are to be appointed to carry out investigation and processing.

If case-handling staff is concerned with the cases, they should withdraw themselves, if they do not withdraw, the parties may request their withdrawal. Withdrawal of case-handling staff must be examined and approved by the responsible person of this entity. The withdrawal of a responsible person should be examined and approved by the People's Government of this level.

Article 15: When law enforcement officers in the process of enforcement find out that unlawful acts are in the process of being committed, and if the circumstances are so critical that there is not time to file a case, they may take the following measures:

(1) Cease or correct the unlawful acts

(2) Put infringing products and materials, tools, equipment etc. used mainly for unlawful acts in advance registered storage

(3) Gather and collect other relevant evidence.

Law enforcement officers should promptly report relevant circumstances and materials to the copyright administrative management entity in charge, and conduct case filing formalities within seven days of discovery of the circumstances.

Art. 16: After the filing of the case, the case-handling staff should promptly carry out investigations, and demand the person with statutory burden of proof to put his proof within the time limit appointed by the copyright administrative management entities.

The case-handling staff, when collecting evidence, may adopt the following means to collect and gather relevant evidence:

(1) Consulting, duplication of document records, account books and other written materials relevant to the suspected unlawful acts;

(2) Collect samples of evidence of suspected infringing products;

(3) Put suspected infringing products, equipment for installing and stockpiling infringing products; suspected infringing websites and web pages, suspected infringing website service machines and materials, tools and equipment mainly used in unlawful acts in advance registered storage.

Art. 17: The case-handling staff should, during enforcement, show to the party or relevant persons their administrative enforcement credentials issued by the National Copyright Administration or local People's Government.

Art. 18: Evidence collected during the handling of the case include:

(1) documented evidence;

(2) material evidence;

(3) witness testimonies;

(4) audiovisual material;

(5) statements of the parties;

(6) authenticated conclusions

(7) records of spot inspections and checks

Article 19: Copyright-related manuscripts, master copies, lawful publications, work registry certificates, copyright contract registry certificates, proof provided by authentication organs, contracts of acquisition of rights, as well as infringing reproductions obtained by way of ordering, buying on the spot etc., by the parties or their entrusted persons and acquired objects, invoices etc, may act as evidence.

Art. 20: When the case-handling staff sample and collect evidence, and put relevant evidence in advance registered storage, they should have the party present. Concerning relevant goods, they should issue on the spot a double duplicate of a manufacturing statement, which should, after it is signed or stamped by the case-handling staff and the party, given respectively by the party and the case-handling staff to the local copyright administrative management entity for preservation. If the party is not present or refuses to sign or stamp, this circumstances shall be noted by two or more case-handling staff.

Article 21: When putting relevant evidence in advance registered storage, case-handling staff should obtain permission from the responsible person of this entity, and should hand over to the party an evidence advanced storage notice. The party or relevant person may not transfer or destroy relevant evidence during the period of evidence storage.

Evidence in advance registered storage, should be sealed with advanced registered storage strips of the copyright administrative management entity, and preserved on the spot by the party. If evidence in advance registered storage really needs to be moved to another location, it may be moved to a suitable location for storage. If the circumstances are so critical that there is no time to perform the formalities provided in these rules, the case-handling staff may adopt advance measures, and afterwards promptly complete formalities.

Art. 22 (Steps after advanced registered storage) Concerning evidence in advanced registered storage, one of the listed decisions should be made within 7 days of handing over the evidence advanced registered storage notice:

(1) If authentication is needed, it should be delivered for authentication;

(2) If unlawful facts are established, and if confiscation should happen, the confiscation procedure should occur according to law;

(3) If transfer to a relevant entity is necessary, the case together with the evidence will be transferred to the relevant entity;

(4) If unlawful facts are not established, or if confiscation should not happen according to the law, measures should be taken to release registered storage;

(5) Other related statutory measures.

Art. 23 (Entrusted investigation) When, during the process of case investigation, the copyright administrative management entities entrust other copyright administrative management entities to perform investigations on their behalf, they should issue a trust deed. The copyright administrative management entity that is entrusted should give vigorous assistance.

Art. 24 (Expert appraisal) For questions of a technical nature arising during the investigation and prosecution, the copyright administrative management entity may entrust special agencies or engage expert personnel to carry out appraisal.

Art. 25 (Investigation report) After the final stage of the investigation, the case-handling staff should submit a case investigation report, explaining whether the relevant activities violate the law or not, and putting forward suggestions for process, and relevant facts, grounds and basis, as well as including the complete evidence materials.

Art. 26 (Notification of the parties) When the copyright administrative management entity has drafted an administrative punishment decision, the person in charge of that entity should sign an issue an administrative punishment advance notice, informing the parties on the facts, grounds and basis of the drafted administrative punishment decision, as well as informing the parties on their rights of declaration, right of defence and other rights.

The administrative punishment advance notice should be delivered directly to the parties by the copyright administrative management entity, the parties should sign or stamp the delivery form. If parties refuse to sign for receipt, the situation should be noted clearly by the delivery personnel, the documents to be delivered should be left at the domicile receiving the delivery personnel, and the person in charge of the relevant entity should be informed. The copyright administrative management entity may also adopt postal delivery methods to inform the parties. If there is no way to find the parties, they may notify by public proclamation.

Article 27: If the parties wish to make a statement or a pleading, they should raise their statement or pleading, as well as the relevant facts, reasons and evidence before the copyright administrative management entity within seven days after notification of the defendant, or within 30 days of the day of issuance of the announcement. If the parties did not exercise their right statement or pleading within this period, they will be regarded as having renounced the right.

If the direct delivery method is used for notification, the day of receipt and signing of the party is used as the day of notification of the defendant, if the postal delivery method is used for notification, the day of receipt as indicated on the receipt slip is used as the day of notification of the defendant.

Article 28: The case-handling staff should fully listen to the statements and pleadings of the parties, carry out a review of the facts, reasons and evidence raised by the parties, and submit a review report.

The copyright administrative management entity may not increase punishment because of pleading by the parties.

Article 29: The responsible person of the copyright administrative management entity should carry out an examination of the case investigation report and the review report and respectively make the following processing decisions on the basis of the investigation results:

(1) if an unlawful act that should be punished administratively truly exists, administrative punishment should be meted out according to the level of the fault of the infringer, the duration of the infringement, the size of the scope of infringement, the consequence of the damage and other circumstances;

(2) if the unlawful act is trivial, administrative punishment may not be meted out;

(3) if unlawful facts are not established, no administrative punishment will be meted out;

(4) if the unlawful acts are suspected to constitute a crime, it will be transferred to the judiciary.

Relatively heavy administrative punishment will be meted out against unlawful acts of which the circumstances are complicated or which are significant, this will be decided by collective discussion of the responsible persons of the copyright administrative management entity.

Article 30: When the copyright administrative management entity decides to impose a fine, the amount of the fine will be fixed according to the provisions of Article 36 of the "Implementing Regulations of the Copyright Law of the People's Republic of China", Article 24 of the "Regulations for the Protection of Computer Software" and Articles 18 and 19 of the "Regulations on the Protection of Information Network Dissemination Rights".

Article 31: If the circumstances of the unlawful act are grave, the copyright administrative management entity may confiscate the materials, tools and equipment etc., used mainly in producing the infringing products.

"Grave circumstances" as named in the aforementioned clause, refers to:

(1) if the illicit income amount (viz. amount of profit) is more than 2.500 yuan;
(2) if the illicit business amount of is more than 15.000 yuan;

(3) if the number of infringing products of an individual is greater than 250 volumes (discs or boxes);

(4) if one has already been found liable for copyright infringement, and again infringes copyright;

(5) if other significant influence or grave consequences result.

Article 32: If another administrative department has already fined the same one unlawful act of the party, the copyright administrative management entity may not fine it again, but may still mete out other sorts of punishment according to the provisions of Article 4 of these Rules, according to the specific circumstances.

Article 33: Before the copyright administrative management entity decides to impose relatively large fines or other administrative punishments requiring a hearing according to the provisions of laws or administrative regulations, it should notify the parties of the rights for requiring for a hearing.

"Relatively large fines" as named in the aforementioned clause, reference to a fine for an individual of more than 20.000 yuan, and a fine for a work unit of more than 100.000 yuan. If local rules and regulations have different criteria for a hearing, it will be conducted according to local rules and regulations.

Article 34: If the parties wish a hearing, the copyright administrative management entity should organize a hearing according to the procedures of the provisions of Article 42 of the Administrative Punishment Law. The parties do not bear the cost of organizing a hearing.

Article 35: If the copyright administrative management entity decides to mete out punishment, it should formulate an administrative punishment resolution.

If the copyright administrative management entity decides not to mete out punishment for a trivial unlawful act, it should formulate an administrative non-punishment resolution, explain the facts, reasons and basis for not meting out punishment, and serve it on the parties; if an unlawful act is not established, it should formulate an investigation result notice, and serve it on the parties.

If the copyright administrative management entity decides to transfer a case to the judiciary for processing, it should formulate a notice of transfer for a suspected criminal case, and send it timely to the judicial department having jurisdiction, together with the relevant material and evidence.

Article 36: The administrative punishment resolution should be handed over to the parties on the spot after proclamation by the copyright administrative management entity. If parties are not present, it should be sent to the parties within seven days.

Article 37: If parties refuse to accept the administrative punishment of the National Copyright Administration, an application for administrative redress may be made to the National Copyright Administration; if the parties refuse to accept the administrative punishment of a local copyright administrative management entity, an application for administrative redress may be made to the People's Government of that level of the copyright administrative management entity of one level higher.

If the parties refuse to accept the administrative punishment or the administrative redress decision, administrative action may be raised, according to the law.

Chapter 4: Execution procedures

Article 38: After the parties receive the administrative punishment resolutions, they should fulfil their obligations within the time limits of the administrative punishment resolution.

If the party’s request administrative redress, or an administrative action is raised, the administrative punishment must be fulfilled without delay. Except if laws provide otherwise.

Article 39: Confiscated infringing products should be destroyed, or should be disposed of in other suitable manners after approval of the infringed party.

When destroying infringing products, the copyright administrative management entity should appoint more than two law enforcement officers to supervise the destruction process, examine the destruction results and record the destruction.

Concerning the confiscated materials, tools and equipment etc. mainly used in producing infringing products, the copyright administrative management entity should organize a public auction according to the law or dispose of them according to the relevant national provisions.

Chapter 5: supplementary articles

Article 41: infringing products as named in these rules include infringing reproductions and works posing as signed by other persons.

Article 42: The copyright administrative management entities should set up a copyright administrative punishment statistics system according to the national regulations on statistics, and should submit yearly copyright administrative punishment statistics to the copyright administrative management entity of one level higher

Article 43: After the administrative punishment decision or reconsideration resolution is completely carried out, the copyright administrative management entity should file the case materials timely.

Materials to be put on file include: the administrative punishment resolution, the case file examination and approval form, the case investigation report, the review report, the reconsideration resolution, the records of hearings, the hearing reports, evidence material, property disposition documents as well as other relevant materials.

Article 44: The relevant legal documents touched upon in these Rules, should be made according to the relevant document forms of the National Copyright Administration.

Article 45: These Rules will take effect from 15 June 2009. The "Copyright Administrative Punishment Implementation Rules ", promulgated by the National Copyright Administration will be abolished at the same time, if these Rules should contradict with other relevant regulations promulgated before the implementation of these Rules, these Rules should be carried out.

Working Group Must Protect Against Flood of Chinese IPR Infringements of Japanese Products

Mainichi Daily News reports that Japan and the People's Republic of China have set up a working group to address intellectual property challenges. This Sunday the working group (which consists of the Japanese Ministry of Economy, Trade and Ministry and Chinese Ministry of Commerce and other institutions) will probably meet for the first time.

Read the Mainichi Daily News article here.

UPDATE:

Read also Fang Yang, 'Japan, China set up working group on intellectual property rights protection', Xinhua, June 7, 2009;

Sachiko Sakamaki and Takschi Hirokawa, 'Japan, China Will Start Group on Intellectual Property Rights', Bloomberg, June 7, 2009.

LOIYIR Must Stop Using L'Oréal's Chinese Name and Claiming It's Part of L'Oréal

Already in 2007 there was some confusion among consumers, see the question at Ask Koubei here:

Question: "LOIYIR 是 L'Oréal 的产品吗?" translation: LOIYIR is L'Oréal's product?
Answer: "不是." Translation: no

The confusion was created by Hangzhou LOIYIR Cosmetics and Shanghai Meilianni Cosmetics that used the Chinese name of L'Oréal 欧莱雅 and claimed that LOIYIR's products are from L'Oréal.

Finally in 2009, the case was brought before the Nantong (Jiangsu province) Intermediate People's Court (first-instance judgement). From 1981 to 2001, L'Oréal registered the trademarks L'Oréal, 莱雅 and 欧莱雅, certified to be used on Class 3 goods, i.e. cosmetics, beauty products and perfumes.

The Nantong Intermediate People's Court judged:

- the joint distribution of LOIYIR products by the co-defendants constituted trademark infringement, they have to indemnify L'Oréal by paying jointly 400,000 Renminbi in damages;

- Hangzhou LOIYIR used 欧莱雅 in its trade name, which constituted unfair competition; therefore they have to pay another 100,000 Renminbi in damages.

However, LOIYIR still uses 欧莱雅 in its trade name, see its website here. Maybe they will appeal the judgement.

Source: China IP News

See China Law Edu (Chinese).

IP Dragon's Law Firms Update

IP Dragon checked the IP law firms specialised in IPR in China. Here are some of the firms with new articles:

Baker & McKenzie
- 'People's Republic of China Patent Law Implementing Regulations Draft' (pdf)http://www.bakernet.com/BakerNet/Resources/Publications/Recent+Publications/ChinaPRCPatentLawImplementingRegulationsDraftCAApr09.htm
Bird & Bird
- Chen, Sofia and Ewan Grist, 'Anti-counterfeiting framework', May 11, 2009 http://www.twobirds.com/English/News/Articles/Pages/Anti-counterfeiting_Legal_Framework.Aspx

CCPIT Patent and Trademark Law Office
- 'The Second "Beijing International Pharmaceutical & ChemicalIntellectual Property Forum"will be held from August 6 to August 8, 2009 in Beijing' http://www.ccpit-patent.com.cn/News/2009042201.htm
- Hu Gang, 'Position Trademarks Refused by the Chinese Court forRegistration as Three-dimensional Trademarks for the First Time'http://www.ccpit-patent.com.cn/News/2009030301a.htm

China Patent Agent (HK) Ltd.
- Liao Xiaojun, 'Several Issues in Hearing Design Patent Cases the IPTribunal of Beijing Higher People’s Court' http://www.cpahkltd.com/cn/Publications/2009liulan/200902/ebjc.pdf
- Wu Yuhe and Pang Lizhi, 'Impact of Drug Dosage Feature on Novalty ofSwiss-type Use Claim' http://www.cpahkltd.com/cn/Publications/2009liulan/200902/ewyh.pdf

China Science Patent & Trademark
- Zhu Nongfan, 'Review: 2008 China Intellectual Property Developments' http://www.csptal.com/en/en_z.asp?id=119

Deacons
- China IP Bulletin- May 2009 http://www.deaconslaw.com/eng/knowledge/knowledge_330.htm

Dragon IP Law
- Newsletter March 18, 2009 http://www.dragon-patent.com.cn/en/news_content.asp?id=218&anclassid=1

DS-Avocats
- Lettre en Droit Chinois des Affaires (French), February 19, 2009 http://www.ds-asie.com/dszh/IMG/pdf/Droit_chinois_des_affaires_no107.pdf

East IP
- 'Our Chairman, Dr. Lulin Gao, Invited to Attend 2009 Global IPExchange in U.S.A.' http://www.eastip.com/news/ip/news_publications/09-2-22gie/index_html_v2

Foley & Lardner LLP
- Bartner, Sharon R., Catherine Sun and Yan Zhao, 'China's HighestCourt Opinion Addresses Impact Of The International Financial CrisisOn Intellectual Property', April 24, 2009 http://www.foley.com/publications/pub_detail.aspx?pubid=5977

Freshfield Bruckhaus Deringer
- Carnabuci, Connie and Richard Bird, 'Major changes in the thirdrevision to the PRC Patent Law', February 13, 2009 http://www.freshfields.com/publications/pdfs/2009/feb09/25150.pdf
- Carnabuci, Connie and Richard Bird, 'Trade Descriptions (Amendment)Ordinance 2008, Hong Kong', February 10, 2009 http://www.freshfields.com/publications/pdfs/2009/feb09/25054.pdf

Haseltine Lake
- 'Haseltine Lake at INTA 131st Annual Meeting', May 16-20, 2009 http://www.haseltinelake.com/news/shownews/inta09

JSM (Johnson Stokes & Master) Mayer Brown
- Wong, Kenny, 'A New Opinion of the PRC Supreme People's CourtConcerning the Adjudication of IP Disputes' http://www.mayerbrown.com/publications/article.asp?id=6683&nid=6

Jones Day
- Bai, J. Benjamin, Tony Chen, Mark Allen Cohen, Chiang Ling Li, AnnW. Chen, 'What Does the Third Amendment to China's Patent Law Mean toYou?', January 2009

Jun He Law Offices
- 'The Supreme Court Issues Opinions on Due Implementation of NationalIntellectual Property Strategy', April 30, 2009, http://www.junhe.com/uploadpic/news/2009511214635977.pdf

Kangxin
- 'SARFT offers 9 mln yuan to support original cartoon', February 11, 2009. http://124.207.176.104:8080/mainServlet.do?ClassName=NewsManage1&ActionName=doBeforeUpdate&jsp=/english/ipnews/viewnews.jsp&newsID=590&titleimage=title-2-4-1.gif&lanuage_type=2&Pro_type_id=90
- 'China to build 100 IP assistance centers', February 10, 2009. http://124.207.176.104:8080/mainServlet.do?ClassName=NewsManage1&ActionName=doBeforeUpdate&jsp=/english/ipnews/viewnews.jsp&newsID=589&titleimage=title-2-4-1.gif&lanuage_type=2&Pro_type_id=90

King & Wood
- IP Bulletin, February 2009, Shi Yusheng, 'Microsoft's Windows Genuine Advantage Initiative andthe Protection of Intellectual Property Rights in China'
- Zheng Lizhu and Kenneth Y. Choy, 'The Impact of Bilski on BusinessMethod Patent'- Nelson, Stephen, and Wu Libin, 'Tax Issues Related to Intellectual Property Transfer of the Foreign Enterprise to China Transferee' http://www.kingandwood.com/Bulletin.aspx?id=11445

Lehman, Lee & Xu
- Lee, John and Cythia Zhang, 'Trademark Practice & Forms' http://www.lehmanlaw.com/fileadmin/lehmanlaw_com/Publications/Trademark_Practice_and_Forms-China_Chapter.pdf

Liu, Shen & Associates
- 'New Comments on IP Trials issued by Supreme People’s Court' May 7, 2009 http://www.liu-shen.com/english/news_detail_en.asp?newsid=511
- 'New Interpretations of Application of Law in Civil Litigationconcerning Well-Known Trademark by Supreme People’s Court', May 7,2009 http://www.liu-shen.com/english/news_detail_en.asp?newsid=510
- 'Development on Well-Known Trademark Recognition and Protection', May 7, 2009 http://www.liu-shen.com/english/news_detail_en.asp?newsid=512
- ChinaCourt.org,'The Judicial Reform of People’s Court Considers Introducing Unified IPR Courts', April 15, 2009 http://www.liu-shen.com/english/news_detail_en.asp?newsid=500- 'Liu, Shen & Associates Receives “China IP Firm 0f 2009” Award', April 15, 2009 http://www.liu-shen.com/english/news_detail_en.asp?newsid=504
- Shenzhen Special Zone Daily, 'Shenzhen Covers 44.5% of the Total PCTPatent Application', March 24, 2009 http://www.liu-shen.com/english/news_detail_en.asp?newsid=492

Lung Tin International Intellectual Property Agent Ltd.
- 'The third revision of Chinese Patent Law regarding the design: anintroduction (fourth)', April 24, 2005 http://www.lungtin.com/en/view.php?id=124053784249
- 'Shanghai MGE sentenced to pay CNY 0.5 million in compensation', April 24, 2009 http://www.lungtin.com/en/view.php?id=124053765916
- 'For suspected promotion of feudal superstition, registration of anew trademark of Blizzard Entertainment based in USA has beenrejected', April 24, 2009 http://www.lungtin.com/en/view.php?id=124053751559
- 'The third revision of Chinese Patent Law regarding the design: anintroduction (3)', Mar. 27, 2009 http://www.lungtin.com/en/view.php?id=123813353819
- 'Administrative institutions strengthen the capacity ofinvestigating and dealing with trademark violation cases', March 27, 2009 http://www.lungtin.com/en/view.php?id=123813335997
- 'New rules for trademark applications in newspapers industry', March 27, 2009 http://www.lungtin.com/en/view.php?id=123813311909

Maier & Maier
- 18 articles about IPR in China http://www.postgrant.com/china-ip/

McDermott Will & Emery
- Ma, Patrick, 'Chinese Trademark Office Releases Trial Provisions for Online Trademark Applications', April 9, 2009 http://www.mwechinalaw.com/news/2009/chinalawalert0409a.htm

NTD Trademark & Patent Agency Ltd.
- 'Shanghai Expo Lawsuit Service Center Established', May 14, 2009 http://www.chinantd.com/en/en-newsshow.asp?id=1016
- 'Chongqing Subsidize Invention Patents Granted Abroad', May 13, 2009 http://www.chinantd.com/en/en-newsshow.asp?id=1015

O'Melveny & Myers LLP
- 'Trial measures for Online Trademark Applications', China Law & Policy, February 16, 2009 http://www.omm.com/files/Publication/a70f2a48-2380-4c36-b3d7-2e4eca6e15f2/Presentation/PublicationAttachment/ab35488e-bb34-4fda-8049-301225b7eda8/clp2009E05.pdf

Orrick, Herrington & Sutcliffe LLP
- Xiang Wang, Neal Stender, Tao Wu and Gary Zeng, 'China's New Testfor Patent Injunctions; Echoes of eBay', May 5, 2009,
http://www.orrick.com/publications/item.asp?action=article&articleID=1832
- Xiang Wang and Neal Stender, 'More changes & some more of the samein amended PRC Patent Law', April 1, 2009 http://www.orrick.com/fileupload/1823.pdf
- Dale, Andrew and Janie Wong, 'The Civil Justice Reforms, An In-House Perspective', March 9, 2009 http://www.orrick.com/fileupload/1691.pdf

Rouse & Co.
- 'China IP Express, 316', April 24, 2009 http://www.iprights.com/document.aspx?fn=load&media_id=611

Shanghai Patent & Trademark Law Office, Inc.
- 'World Expo 2010 Shanghai IP Protection Outlines Unveiled' http://www.sptl.com.cn/en/news/news08.htm

Tee & Howe
- Haynes, James, 'Chinese Utility Model Patents Might Cut Your IP Costsby Half While Providing Better Protection' http://www.teehowe.com/news_detail.php?id=323

Troutman Sanders
- 'Judicial Interpretation of Several Issues on Application ofEnforcement Procedures in PRC Civil Procedural Law', January 22, 2009 http://www.troutmansanders.com/cnlb-012009-07/

Tsai, Lee & Chen
- 'Opinions Shared across the Straits: Using Other’s Trademark as aCompany’s Chinese/English Name Not Allowed', May 12, 2008 http://www.tsailee.com/_en/_ipn/default01.asp?PKID=1303
- 'Third Read of Amendment to Copyright Act Pass Three-strikesProvision', May 1, 2009 http://www.tsailee.com/_en/_ipn/default01.asp?PKID=1302
- 'Indication of Distinctive Name on Company’s Website Not TrademarkUse', May 1, 2009 http://www.tsailee.com/_en/_ipn/default01.asp?PKID=1301
- 'FOXY Sued for Involvement in Copyright Infringement over 5.8Billion', May 1, 2009 http://www.tsailee.com/_en/_ipn/default01.asp?PKID=1300
- 'The Cross-strait Regulations Recognize the Validity of Judgments',April 14, 2009 http://www.tsailee.com/_en/_ipn/default01.asp?PKID=1284

Unitalen
- 'China’s Ministry of Commerce Highlighted IPR for ChineseEnterprises on CeBIT' http://www.unitalen.com/servlet/Node?node=38389&language=0

Wilkinson & Grist Solicitors & Notaries
- articles about IPR in China publised in IAM Magazinehttp://www.wilgrist.com/index.php?main=10002&dept=05&lang=en

Harlan Ellison Says The Darndest Things About Digital Piracy Of His Work

May 16-17, 2009, the International Herald Tribune had the following quote from the sci-fi author and screenwriter Harlan Ellison: 

"If you put your hand in my pocket, you'll drag back six inches of bloody stump." 

Reality Imitates Fiction: China National Space Administration Logo: Half Star Trek, And Other Half ...Star Trek

Professor Susan Scafidi, the authoriy on Fashion Law (Fashion and Intellectual Property Law), author of 'Who Owns Culture?' and Counterfeit Chic sent me a great link: 'China Bootlegs Star Trek for Its Space Program' on Cool Aggregator, a site about pop-culture and strange news maintained by Valerie D'Orazio. 

Reality Imitates Fiction

It is understandable that the people of the China National Space Administration (CNSA) are inspired by science fiction show Star Trek, but the fact that the designers of the logo of CNSA forged two different Star Trek logo's (of Star Trek itself and of the imaginary United Federation of Planets) from this popular series into one, is less then decent. Then again, the creators of Star Trek probably never imagined that their creations would ever fly, in reality, into space. Unless, Star Trek will sue the CNSA for trademark infringement, that is.  Then again, they might see it as a free (interplanetary) advertisment for their science fiction show (which becomes less and less science fiction).  

After the name "Taikonaut" was coined by Chiew Lee Yih from Malaysia and later embraced by Xinhua for people who travelled in space for the Chinese space programme (to distinguish those from astronauts from the US and cosmonauts from the USSR/Russia), IP Dragon is surprised that the CNSA chose for a less than original logo. According to this Wikipedia article: "the terms "yǔhángyuán" (宇航员, "sailing personnel in universe") or "hángtiānyuán" (航天员, "sailing personnel in sky") have long been used for astronauts. The phrase "tàikōng rén" (太空人, "spaceman") is often used in Hong Kong and Taiwan." 

Grim audits of EU-China Relations – IPR to the rescue?

Guest article by Mikołaj Rogowski

Dragons Nightmare, an article from the last month’s edition of The Economist drew a rather pessimistic picture of the European Union – China relations landscape.  According to The Economist the EU is a tough spot. The Economist argues that currently the conflicting policies of the member states are far from rising to the task of coping with the challenges of the emerging of China.

“If you wanted to design a competitor to show up European weaknesses most painfully, you would come up with something a lot like China. It is a centralized, unitary state, which is patient and relentless in the pursuit of national goals that often matter more to the Chinese than anyone else. European governments do not even agree on what they want from China”.

That picture is grim. On the far reaches of the horizon the author sees a possibility of a world where “Chi-American” G-2 is in charge and the European states are no longer treated as meaningful world powers. 

This gloomy vision might just be one of many possible outcomes of the current geopolitical struggle, however the newly published Policy Report by the European Council on Foreign Relations confirms most if not all defects of the current European position outlined by The Economist. 

The report written by John Fox, ECFR Senior Policy Fellow; and François Godement, ECFR Senior Policy Fellow, Professor and Director of the Asia Centre at Sciences Po, proposes what its authors call a “reciprocal engagement” a new policy based on 4 R’s: reduction and reciprocity, relevance and realism: 

“… interest-based approach with two principles and two criteria. The principles: European offers to China should be focused on a reduced number of policy areas, and the EU should use incentives and leverage to ensure that China will reciprocate. The criteria: relevance to the EU, and a realistic expectation that a collective European effort will shift Chinese policy.”(pg. 13) 

Unsurprisingly many of the actions proposed by the report are focused on IPR. The paper perceives the strengthening of the IP protection in China as one of the key factors that could shape the new rebalanced economic relationship between China and EU. One that stands out the most among the anticipated actions is the proposition of establishing “an IPR and patent support fund, supervised by the EU delegation or Chamber of Commerce in Beijing, to which European SMEs could apply for financial support and legal advice to assist with IPR registration/protection in China. “(pg. 56) I am sure that many European companies that are currently considering entering Chinese market would welcome such a move. 

The report’s appendix also proves to be a source of interesting information. It summarizes the approach of every EU member state towards China, highlighting certain areas, including IPR (You can find out i.e. that Poland, as far as the foreign policy goes, is blissfully unconcerned about IPR in China). 

All too all ECFR’s paper is a read worth recommending. It gives the reader a coherent view of the current Eu-China relations and suggests several appealing solutions. It would be interesting to hear what others have to say on the topic of the current EU policy, its proposed changes and how they could affects IPR and IP focused business in China.

Text  Mikołaj Rogowski

This is the second guest contribution of Mikolaj Rogowski, law student at Jagiellonian University, author of several IP articles and Polish-English translations, specializes in Polish, European, Chinese and American IP law, China assistant to MEP Jan Olbrycht. His first guest contribution can be found here.

Business Leaders' Advice On Succeeding in China: IPR, IPR and IPR

The Knowledge@W.P. Carey newsletter of the W.P. Carey School of Business, Arizona State University, has a great series of articles: 'Trade, China and the World Economic Order'. Part 3 is called: Business Leaders' Advice on Succeeding in China.' Herein, sensible things are said about intellectual property rights in China:

• "Hit-and-miss IP regulation is a significant inhibitor to development in China," said W.P. Carey School's Phillip Carter [professor supply chain management]. To work around that challenge, companies should not enter China with their most cutting-edge technology.
• Now that China's domestic companies have moved up the value chain, becoming significantly better at innovating their own technologies, they too are pushing the government for intellectual property rights protection in China.
• While the joint venture model may be great for China and its demestic firms, Motorola's Gary Tooker advises against it. "The best model to incorporate in China is a wholly-owned subsidiary of the American or multinational company," he said." Again to avoid to intellectual property problems.

Read Part Three here.

Taylor Wessing Global Intellectual Property Index and China: The Last Shall Be The First

The People's Republic of China was ranked last (24th position) in the Taylor Wessing Global Intellectual Property Index 2009, see here. The methodology of the GIPI rating is a calculation by a factor assessment model with jurisdiction assessments and instrumental factors as input. See the methodology here. 

About China's trademark system Taylor Wessing complains about the delay in adopting the new Trademark Law which it sees as the solution to the registry delays and backlogs. The time from application to publication of trademarks in China is according to Taylor Wessing currently three years and the duration of opposition procedures up to five years. It says that there is an "absence of any protection for unregistered marks, save the 230 or so marks held to be “famous” (of which only about 20 are foreign), remains a concern for respondents." Taylor Wessing is more positive about China's National IP Strategy and an electronic application system which has cut costs and allocated filing receipts and application numbers quite quickly.

About China's copyright system Taylor Wessing wrote: "China trails overall, as well as for each

of the attacking, enforcing, exploiting and cost-effectiveness subindices." The lack of effective enforcement of copyright is respondents' primary concern, as is bureaucracy associated with giving evidence, and criminal remedies that are perceived as too low, underused and with thresholds set too high, civil and administrative remedies inadequate. Taylor Wessing mentioned also the harsh criticism China received from the USTR in the Special 301 Report. The supporting argument that China faces the "the harshest and most in-depth criticism" because it was covered in 24 pages while the other 45 countries only got 16 pages is not very convincing. It is not the quantity but the quality of the commentary that counts. On a positive note Taylor Wessing acknowledged that the US government considers that progress is being made because China is fulfilling its WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT) and WTO TRIPs obligations. 

About design Taylor Wessing wrote that "China’s courts have awarded $3 million to the German

bus maker, Neoplan, in one of the biggest design patent infringement awards since China joined the WTO in 2001." China’s design system which requires annual renewals of designs (plus renewal fees) is seen by respondents as onerous and in need of reform, according to Taylor Wessing.

About China's domain names system Taylor Wessing wrote that although China has liberal registration rules it ranked low, because domain names are extremely cheap to register in China, which has encouraged domain name squatters. Taylor Wessing: "It remains to be seen whether the recent exponential increase in numbers (nearly 90% last year) is an ongoing trend or a spike, and also whether brand owners’ awareness of the issue and increasing interest in doing business in China will lead to them registering more pre-emptive .cn domain name." 

About China's Patent system Taylor Wessing was quite positive: "China certainly has also made significant efforts over the past few years to improve its IP systems." The respondents appreciated China's new specialist IP courts, that are relatively much speedier than before and anticpate the Third Amendment to the Patent Law which will take effect October 1st, 2009 and will introduce the absolute international novelty standard and the possibility of compulsory licensing for patents unused within 3 years of grant. 

I am not sure whether Matthew 20:16 (King James Bible) can bring any consolation for China's low score, but here goes: "So the last shall be first, and the first last: for many be called, but few chosen."

Two Encouraging Surveys: On Public Awareness and Business Attitudes of Intellectual Property Rights in Hong Kong

Selene Ng of Wilkinson and Grist wrote an article on the site of IAM Magazine about an encouraging outcome of a survey on public awareness of intellectual property protection by the Hong Kong population. The Survey on Public Awareness of Intellectual Property Right Protection 香港市民保護知識產權意識調查 2008 conducted by Mercador Solutions Associates Ltd., commissioned by the IP Department of Hong Kong. It showed that 96.3 percent of the surveyed group (1,003 repondents, response rate of 51.5 percent) considered that it was very/quite necessary to protect the IP rights in Hong Kong.

However, awareness does not necessarily convert into online behaviour that is respectful towards intellectual property rights. 78.6 percent stated that they probably/definitely would not pay to download songs, movies, games or ebooks. Why? The main reason for this was that purchasing legitimate content is “considered troublesome in purchasing online” (47.0%). When this group is downloading chances are that they access pirated content. So it is safe to assume that there is enough work to do for the intellectual property department of firms, such as Wilkinson and Grist, to enforce IPRs in Hong Kong. Read Ms Ng's article here.

Then there was another rather encouraging survey: Survey on Business Attitudes to Intellectual Property 香港商業機構知識產權意識調查 2008 conducted by Mercador Solutions Associates Ltd. , commissioned by the IP Department of Hong Kong (1,001 business establishments surveyed, response rate 30.3 percent) which showed that: 

• 98.3% of business establishments considered intellectual properties (e.g. patents for invented products / technology, design, logo or brand name) of the surveyed group in Hong Kong valuable assets of a company;
• 93.7% of the business establishments considered that it was very/quite necessary to protect IP rights in the business environment of Hong Kong.
  

WSJ Reports 90 Percent of China's Netizens Access Pirated Music

Mira Veda of the Huffington Post writes "The Wall Street Journal reports that 90% of China's Web Users, which is estimated to be about 162 million people, access pirated music from their computers every day ... " Read here.

Ms Veda, and with her many others, is doubting what the next best business model for the music industry will be in times of massive digital piracy: Google's advertising model (read 'Giving Away Music for Free to Destroy Copyright Piracy: Operation Succes, Patient Dead?') or France's three strikes system (read 'Taiwan's Three Strikes System Less Strict Than French Equivalent'), or some other model. Ms Veda is convinced that some regulation is a prerequisite for the world to see the potential of authors and performing artists that otherwise cannot afford to make music.

Below Ms Veda's article rjmiller (Rob Miller, who is a musician and songwriter) comments that regulation is not the answer and that it only hurts the extremely succesful musicians, quoting Tim O'Reilly 'Piracy is Progressive Taxation'. Mr Miller also wrote: "If you've ever spoken to an Indie artist, they don't worry about piracy, they worry about obscurity". 

Google Will Continue To Investigate Trademarks as Keywords in China, Hong Kong and Macau

Imagine that your competitor can advertise with your name using Google AdWords. This nightmare can come true in the following jurisdictions: 'Regions for Which Google will not investigate the use of trademarks as keywords'. So far the People's Republic of China, Hong Kong SAR and Macau SAR are excluded from this practice. 

Promising News: China and UK Fast-Track Green Patent Applications

Today the UK will start fast-tracking green patent applications, and China will follow suit. IAM Magazine 's Joff Wild has a very interesting blog about it called 'China and UK to fast-track green patent applications, according to British IP Minister'. That could be the best news since the WIPO chose "promoting green innovation" as its theme for this year's World Intellectual Property Day (last April 26th). Read Mr Wild's blog here.  

BSA Software Piracy Study: Taiwan 39 Percent, Ranks 23th Lowest

Business Software Allicance (BSA) publishes its 2008 study of software piracy: May 2009, Sixth Annual BSA-IDG Software 08 Piracy Study.

With 39 percent, Taiwan came in on the 23th position of the countries with the lowest software piracy, causing a 201 million US dollar loss in 2008 (215 million US dollar loss in 2007):

Percentage software piracy Taiwan

2008 39 percent

2007 40 percent

2006 41 percent

2005 43 percent

2004 43 percent

BSA Software Piracy Study: Hong Kong 48 Percent, Ranks Average

Business Software Allicance (BSA) publishes its 2008 study of software piracy: May 2009, Sixth Annual BSA-IDG Software 08 Piracy Study.

With 48 percent, Hong Kong is a Special Administrative Region whose software piracy ranking is between a country with a low and a country with a high software piracy percentage, causing a loss of 225 million US dollar in 2008 (224 million US dollar in 2007).

 

"In Hong Kong, 2008 saw the government amend

copyright laws to make it easier for criminal

enforcement against end-user piracy and conduct

more highly publicized raids on infringing hard-disk

loaders. The extension of the government’s Genuine

Business Software Campaign (GBSC) reached 50,000

companies and increased software vendor revenues

from legalization programs."

Percentage software piracy Hong Kong SAR

2008 48 percent

2007  51 percent

2006  53 percent

2005 54 percent

2004 52 percent

BSA Software Piracy Study: China 80 Percent; Ranks 24th Highest

Business Software Allicance (BSA) publishes its 2008 study of software piracy: May 2009, Sixth Annual BSA-IDG Software 08 Piracy Study.

With 80 percent, China came in on the 24th position of the countries with the highest software piracy, causing a loss of 6,677 billion US dollar in 2008 (6,664 billion US dollar loss in 2007):  

"China’s piracy rate has dropped 10 points since 2004, a result of more vigorous enforcement and education as well as vendor legalization programs andagreements with original equipment manufacturers(OEMs) and resellers. The government, for instance, has mandated that PC OEMs only ship PCs with legitimate operating systems."

"In China, the break up of a massive counterfeiting ring in late 2007 and the subsequent trials in 2008 set a stern anti-piracy tone for the year. Also during 2008, BSA sent out 53,000 “notice and takedown” letters to Chinese Internet Service Providers (ISPs) in an effort to counter Internet piracy. The government conducted enterprise end-user raids in numerous regions, including Jinlin, Hainan, Shanxi, Shanghai, Beijing, Xian, Wuhan, Shenyang, and Qingdao. The Chinese government also continued its efforts to ensure legal use of software in government agencies and stateowned enterprises."

Percentage software piracy People's Republic of China

2008 80 percent 

2007 82 percent

2006 82 percent

2005 86 percent

2004 90 percent

Little Red Book About Xiao Nei: "A Great Example of Digital Copycatting Done Right"

Rand Han of Little Red Book has another great article. This time he has used, analysed and deconstructed the social networking site Xiao Nei (at Campus) which is a blatant copycat of Facebook.

Mr Han's blog posting does not lack humor: "Now while we normally associate copies with inferior quality or some odd defect from the original, Xiaonei, on the other hand, is a great example of digital copycatting done right. It’s funny how I’ve turned copying someone else’s work into a positive. This is just one of many signs that I’ve been in China too long." 

It is not very likely that Facebook is smiling. Literal imitations in our digital era must be demotivating for businesses to invest in creative works and innovations. 

Read more here.

Taiwan's Three Strikes Sanction Less Strict Than French Equivalent

In the rebound the French Assemblée national adopted the Hadopi law today, which includes a "three strikes" sanction for file sharers of pirated works: repeat offenders will have their internet connection cut off after the third offense, see the France24.fr video about it here (in French) or here (in English). Besides France, Taiwan's Executive Yuan has proposed an amendment to its Copyright Law (ISP liability limitation bill) which includes this three strikes sanction. The bill completed the third reading by the Legislative Yuan and will be promulgated by the Presidential Office in the near future. ISPs will be exempt from both civil liability in case of alleged copyright infringement to the copyright owner and contractual liability to the alleged user. The price for this exemption is that ISPs should abide the notice-and-take down procedures for alleged infringing content and apply the three strikes system. 

However, the Taiwanese version of the three strike system seems at first sight less strict than its French equivalent: 

Margaret Chen, Deputy Director General of Taiwan's Intellectual Property Office (TIPO) said to reporters: ".., there are lots of ways to restrict Internet access besides cutting it off entirely." Read blog about it by Ben Challis at  'At last ...the 1709 Copyright Blog'. 

Hon Hai versus BYD: IPR Infringement or Malicious Attack by a Rival?

Hon Hai Precision Industry Co. sued Build Your Dreams (BYD) at a People's Court in Shenzhen for intellectual property infringement in technology needed for electrical cars. Hon Hai is Taiwan's leading outsourced manufacturing company for Apple's iPhone, HP, Sony and Nokia etc. BYD started with the production of batteries in 1995 and combined this with the development of cars (electrical) six years ago. BYD already has its own museum.

Terry Gou, the CEO of Taiwanese Hon Hai, said in an interview with Economic Daily News in Taiwan: "Didn't Buffett proclaim that he would only invest in companies that are trustworthy? Then why did he invest in BYD which stole commercial secrets from (Hon Hai affiliate) Foxconn?" Billionaire Warren Buffett's Berkshire's MidAmerican Energy Holdings took a 10 percent stake last and stated that Hon Hai's accusation is a malicious attack by a rival.  

Read Alex Crippen's article for CNBC here.

AmCham Gives Chinese Government Recommendations About Copyright Law, Trademark Law and Patent Law

American Chamber of Commerce in the People's Republic of China (AmCham-China) issued the 'American Business in China White Paper 2009' last month. Pages 45-48 pdf, with pagenumbers 88-94 are about intellectual property rights protection. Read here.

AmCham-China's recommendations to the Chinese government are:

• "Continue the pioneering efforts of the US Embassy and government in recent years, with greater internal coordination and cooperation with industry.
• Amend the Chinese Patent law to address AmCham-China concerns, as specified in this chapter (IP Dragon: Lacks patentability from computer program/software; left out an earlier draft provision allowing employers and inventors to define remuneration for employment invention through contracts; requires the disclosure of genetic resource for patentability; does not have criteria of inventiveness at the same levels for utility model patents and invention patents; does not compensate for regulatory approval process delays in the duration of drug patents; does not set forth conditions for granting compulsory license in sufficiently detailed language; and is unclear and possibly overly broad in defining what constitutes “patent abuse,” its relationship with the Anti-monopoly Law, and “working” requirements for patents.
• Fully support and follow through with the efforts of the trademark office in eliminating the examination backlog. Retain the Trademark Office examination of trademark applications on relative grounds.
• Establish new public-private partnerships to duplicate the effective IPR infringement prevention during the Olympics.
• Resist establishing IP policies in violation of WTO rules, which unduly favor Chinese domestic companies over foreign companies.
• Amend the 2006 Internet Regulations and Copyright Law to correspond with international norms and comply with WIPO treaties.
• Enable websites and ISPs to work with rightholders and adopt preventive measures such as filtering and automated take-down.
• Establish a clear and transparent government structure for administrative enforcement, and adopt an inter-departmental enforcement platform."
  

I do not understand AmCham-China's recommendation to change China's patent law so that it has criteria of inventiveness at the same levels for utility model patents and invention patents. A utility model patent is something completely different from an invention patent: Utility model patents are meant to protect innovations and are not examined at the application stage, such as an invention patent, and is only examined in case it is enforced. Besides, the protection term for a utililty patent is 10 years, while the term for an invention patent is 20 years. Do you know the ratio of this recommendation?

Knockoff Phones Explode And Not Just the Volume

Knockoff mobile phones such as Apple (hi-phone), Nokia (Nckia), Samsung (Sumsang), that sometimes explode or have high radiation, are immensely popular in China, 20 percent of this biggest market in the world! The phones are also exported to Russia, India, Middle East, Europe and US. David Barboza wrote an article about it: 'In China, Knockoff Cellphones Are a Hit' for the NYT, read here.

Mr Barboza explains why it is easy to produce a knockoff mobile phone in China for about 20 US dollar:

• Since 2005 came Mediatek, a Taiwanese semiconductor design company with a turnkey solution that can be used as a platform to produce low cost mobile phones;
• Since 2007 no license is needed to manufacture a cellphone;
• If you are a manufacturer of these so called Shan Zhai Ji (Mountain Bandit Machines), you are not going to pay value-added tax of 17 percent of the revenues;
• Tapping in the supply chains is not difficult, because there are manufacturers that cannot resist a request to run a night shift.

New Chinese brands emerge, such as Meizu, that aspire to emulate Apple. More information about Shan Zhai Ji, read here.

Professor Mossoff's Historical Paper About Patent Thicket, Patent Troll and Patent Pool: Relevant Today

Can we learn from history? Or are we doomed to make the same mistakes over and over? Professor Adam Mossoff of George Mason University School of Law wrote an excellent paper about the Sewing Machine War of the 1850's which illustrates that the challenges we are facing in this day and age with patent thickets, patent trolls and patent pools are not new. Professor Mossoff draws the conclusion that "[t]he denouement of the sewing machine patent thicket in the Sewing Machine Combination of 1856, the first privately formed patent pool, further challenges the widely held belief that patent thickets are best solved through new statutes, regulations or court decisions that limit property rights in patents."

The paper illustrates in great style the titanic battle between Elias Howe (who did not do anything other with the patent then using it for injunctions to compel licenses from manufacturers) and Isaac Merritt Singer (who was an incremental inventor). In this battle Singer was looking for prior art to invalidate Howe's patent:

"Singer first attempted to uncover prior art in the patent offices in England, France, and, of course, the United States, and he even went so far as to argue that the sewing machine had long been invented in China, but this was all to no avail."

Download and read professor Mossoff's great SSRN-paper 'A Stitch in Time: The Rise and Fall of the Sewing Machine Patent Thicket', here (52 pages PDF).

IIPA: "China and Russia Remain Major Concerns for Copyright Industries"

The International Intellectual Property Alliance (IIPA) has made a statement on USTR’s decisions in its 2009 Special 301 Review affecting copyright protection and enforcement around the world. No real surprises, including that the IIPA commends USTR for the decision to elevate Canada to the Priority Watch List.

This is what IIPA stated April 30, 2009 about China:

“China and Russia both continue to be major concerns to the copyright industries, as they were in 2008 and prior years. While there have been some positive developments in both these key markets over the past year, enforcement efforts generally remain inadequate, and the copyright industries continue to await sustained, effective and deterrent enforcement, enhanced legal reform, and greater market access for legitimate copyrighted materials.”

“While the Chinese government has launched enforcement efforts, these have so far not proven to be effective in dealing with pervasive piracy in the physical and online markets. These problems have been exacerbated by the maintenance of severe and discriminatory market access restrictions for the distribution of some categories of U.S. content. China must significantly expand its use of criminal measures in appropriate circumstances and employ all available tools, including administrative sanctions, to prevent companies such as Baidu and Kangjian Shixun from continuing to profit from providing access to infringing materials.”

China's number one search engine Baidu needs no introduction. Beijing Kangjian Shixun Technology Company with the sites http://www.kjmed.com.cn/ and http://www.kjmed.com.cn/ offers "subscribers access to the firm’s Foreign Medical Journal Full-Text Service (FMJS), a paid service that sells electronic copies of medical journals, including many well-known American ones, obtained from libraries at no cost", according to the US-China Business Council, see here.

• Business Software losses 2008 2940.0 million US dollar levels 79 percent.

Business Software Alliance (BSA)’s 2008 statistics are preliminary. They represent the U.S. software publishers’ share of software piracy losses in each country, and follow the methodology compiled in the Fifth Annual BSA and IDC Global Software Piracy Study (May 2008). These figures cover, in addition to business applications software, computer applications such as operating systems, consumer applications such as PC gaming, personal finance,and reference software.

• Records & Music losses 2008 564.0 million US dollar levels 90 percent.
  

Read the IIPA's press release (4 pages pdf) here.

Happy World Intellectual Property Day 2009

IP Dragon wishes you a happy World Intellectual Property Day 2009. The World Intellectual Property Organization (WIPO) has chosen a very relevant theme for this year's World Intellectual Property Day: promoting green innovation. WIPO takes responsibility for the polution that is connected with technology protected by intellectual property rights: technology has created polution, but technology has also the potential to come up with solutions for this problem.

The 'greening' of China might be one of the most important challenges the world is facing. Read more about this on Erica Lee Schlaikjer's magnificent blog ResponsibleChina.com.

"China Will Reshape International Intellectual Property Policy"

I just read a great paper by Andrea Wechsler 'Intellectual Property Law in the P.R. China: A powerful Economic Tool for Innovation and Development', Max Planck Institute for Intellectual Property, Competition & Tax Law Research Paper No. 09-02, November 12, 2008, download at SSRN here.

In 56 pages Ms Wechsler takes you on a journey to see the changing purposes in and rationales for international IP protection, the political economy of IP protection and the Chinese approach to IP policy in the light of international IP law developments.

The Agreement on Trade-Related Aspects of Intellectual Property (TRIPs) is an integral part of the World Trade Organization (WTO)'s Agreement. Therefore this treaty (TRIPs) is a hybrid form which for most countries decreases the manoeuvring space in the field of IP protection policy. That China is an exception in this case Ms Wechsler writes on page 18: "The case of China thus demonstrates that – due to China’s sheer size but also due to its growing economic and political importance – China is to some extent defying the limitation of policy space in the field of IP protection through integration of this area into international trade policy."

Ms Wechsler shows how the Chinese government has changed its perception of intellectual property from a Fremdkörper that was transplanted in China from abroad, to uneasiness about the foreign pressure to reform its IP system in order for it to enter WTO, to China's autonomous realisation that IP protection is crucial to foster innovation and development, as evidenced by China's third amendment to its patent law (effective October 1, 2009). China is gradually opting for more country and industry specific intellectual property rights. Ms Wechsler writes: "it was argued that recent policy shifts in Chinese IP policy are to be considered as the first omens of the Chinese emergence as potent forces in reshaping the global intellectual property landscape according to their own political, economic, and social interests."

Read Ms Wechsler here.

Is There Anything Original To A Geely GE? And What About Huatai?

At the 2009 Shanghai Auto Show the Chinese Geely GE gives its acte de présence. Richard S. Chang wrote: "By all accounts the limo is a shameless (if not slightly shorter in length) knock-off of the Rolls-Royce Phantom." Read Chang's blog for the NYT here.

Surprisingly, there is one thing that is original, but for that you need to go inside: there is only one backseat, according to Jalopnik, see and read here.

UPDATE: Michael Harley writes for Autoblog about Chinese Automaker Huatai that is reportedly readying a knockoff version of Bentley Continental, read here. 

Last year Matt Hardigree wrote for Jalopnik about Huatai's "most suetastic logo ever," see here.

“A new dawn for the China health-care or… Grand theft IP?”

Guest article and picture by Mikołaj Rogowski

Back in January, Chinese government announced another one of its subsidies. This time around public health-care is the target and a sum of $128 billion is the weapon. It is no secret that it is another of Beijing’s measures of calming the nation during the year of the economic slow down, however anyone who has been in a public hospital in China will tell you that the system is indeed in need of the equipment and drugs that can be bought with such a substantial sum. Reasons aside, the dawn of new health care means that in the years to come Chinese officials will be on the medical shopping spree. Forbes (http://www.forbes.com/2009/04/08/china-health-care-markets-equity-stimulus.html) has an interesting article on that topic. As Tina Wang points out, it is more than likely that most of the promised sum will go to the Chinese companies. However, in many fields of medicine there are simply no Chinese-made substitutes for the western made, high-end equipment and drugs. That leaves the government with no other choice than to contract with foreign producers. Seems that non-Chinese firms have much to gain, however it might turn out that there is even more to lose. Most if not all of the companies working in the aforementioned fields are IP-based. Without their patents and know-how their products would simply stand no chance of competing with their cheaper Chinese rivals.

The optimistic scenario: some of the items from the no doubt massive order list will not end up as targets of a disappearing act performances, only to later magically ‘reappear’ as certain solutions in ‘new’ Chinese made products.

The pessimistic picture? Remember how Russian military industry was always eager to sell their arms to the ever-expanding, ever-modernized People’s Liberation Army (People's Republic of China armed forces)? Seems that lately they have had a change of heart. After long negotiations concerning the sale of Sukhoi Su-33 Flanker-D carrier-borne fighters Russian party decided to scrap the deal because of the… Fear of the IP theft. Russians claim that China has already copied most of the equipment they have sold them. (More on this topic here: http://en.rian.ru/analysis/20090313/120554173.html). A month after the fiasco of that deal China Association for Science and Technology publishes an article in which it stated that "In some areas, Chinese weapons have either achieved or are very close to achieving international advanced standards,". (The China Post: http://www.chinapost.com.tw/china/national-news/2009/04/13/204090/China-says.htm) The question that just begs to be asked, assuming the report is trustworthy, is how did the Chinese industry reach such levels of standards and if the theft of the IP was one of the main factors that led to this achievement, what would stop the Chinese medical industry from doing the same thing?

It certainly would not be the first time. Thanks to a friend of mine I had an opportunity to talk to a executive at Optopol ( http://optopol.com/en/), a renowned Polish firm specializing in manufacturing of diagnostics equipment in ophthalmology. They have sold a few units of their devices in China and they were met with a disturbing pattern. Most of the equipment was returned shortly, labeled as nonfunctioning. After a brief inspection it turned out that all of the returned machines bared signs of disassembly and whoever did the dismantling had a much harder time putting the machines back together – hence the returns of the “faulty” equipment. Now why would anyone want to take these machines apart, I wonder? What is even more disturbing is that this practice seems not be local - different copies of their products were sent to various locations in china, with the same results.

What do you think? Have any of the readers had any similar experience with products that were sold in China?

For more on the reform check: http://online.wsj.com/article/SB123982492165322167.html

Text and picture Mikołaj Rogowski

Mikolaj Rogowski, law student at Jagiellonian University, author of several IP articles and Polish-English translations, specializes in Polish, European, Chinese and American IP law,
China assistant to MEP Jan Olbrycht.

Green Gold Rush: The Interview, The Movie

Laurent Gaberell told me that he made a video documentary called Green Gold Rush about bioprospecting (the exploration of biodiversity for commercially valuable genetic and bio-chemical resources) and indigenous peoples. See the video here.

The Interview
IP Dragon: Is traditional knowledge what the developed world wanted to give (as some would say "small change") to the developing world in exchange for their enforcement of the economically more important intellectual property rights of copyrights, trademarks and patents?
Laurent Gaberell: "The rhetoric of biopiracy has emerged as a political discourse and strategy to counter the piracy rhetoric that MNCs used to justify the enforcement of stronger and stronger intellectual property rights in the geopolitical South. To sum up, Third World countries were saying "you call us the thief for stealing your intellectual property when in reality you are the thiefs you steal our intellectual property", as Martin Khor well puts it in the movie. This biopiracy rhetoric has proven very effective in putting the issues on the top of the political agenda. Yet it has its dangers too. And one of them is the one you refer too. If we are speaking about two problems of piracy, then why not make a deal: "small changes" in the IP system such as disclosure of origin requirements againts enforcement of strong standards in the Third World to protect the IP assets of developed countries. It is a dangerous deal because I am really not sure it would benefit developing countries and moreover these are very diferent problems. On one side you have the patenting of innovations that originated in the geopolitical South while on the other side you have the use of IP protected innovations produced by MNCs. Third World countries are not appropriaiting the innovations of MNCs through IP, they are using it. But the North not only copies the innovations of the South but also appropriates it through IP. The problem is very different. I think Third World countries would be very ill advised to make such a deal. They have the legitimacy to ask for both the protection of their resources and knowledge, and the right to copy IP protected assets of the North in the name of their needs for development."

IP Dragon: Why wasn't a representative of the People's Republic of China included in the documentary?
Laurent Gaberell: "No representative of the People's Republic of China appears in the movie for the simple reason that there were no indigenous peoples delegates or representants of minorities of China present at the IGC. And the idea of the movie was to give an opportunity to indigenous peoples' delegates of various part of the world to share their experiences and perspectives. It was not the intention of the documentary to interview state representants or members of official delegations. So it is not a discriminitation against China, it is just that no representatives of any country was interviewed for this movie."

IP Dragon: Why is the movie relevant for China?
Laurent Gaberell: "For the importance of traditional medicinal knowledge there. China might not be part of the most megadiverse countries of the world, but it has accumulated an impressive quantitiy of knowledge about the medicinal properties of its biological resources, and that knowledge is of very strategic and economic importance in the context of the biotech revolution. So the question that the movie asks for Bolivia is also relevant for China: how not only to protect our knowledge and innovations of being appropriated but also how to use it and develop it in a way that is really beneficial to the people and to the country."

IP Dragon: Can you tell anything China-related in relation to this movie?
Laurent Gaberell: "I have read about the strategy that China is currently experimenting to protect its TK, namely the patenting of this knowledge, especially its traditional medicinal knowledge and formulations. The advantage of this strategy is that the patents can then be enforced through WIPO in countries like the US or in Europe, something a national sui generis system is currently not able to do. What is not clear to me however is who owns the patent. The State? Chinese companies? Individuals? Traditional comunities?"

Consumers International Says UK Has Worse Copyright Regime Than China... Nonsense Says Sharkey

Thank goodness it is Friday. Consumers International did a survey on the intellectual property laws and enforcement practices of Argentina, Australia, Brazil, Chile, China, India, Indonesia, Israel, Malaysia, Pakistan, Philippines, South Korea, Spain, Thailand, the UK and the US, see here. 

According to BBC News Consumers International decided that "UK law was least effective in balancing the interests of rights holders against those of consumers." Read BBC News "UK 'has the worst copyright laws'", here. 

Feargal Sharkey, yes the great singer of 'A good heart' and CEO of UK Music strongly opposes this view: "In particular, claims that Chinese and Indian consumers (and media) have greater freedoms to access copyrighted works than UK citizens are as ludicrous as they are offensive."

Read more on MusicWeek, here.

The simple fact that China blocked the YouTube video of 'A Good Heart' below suggests Sharkey is right. This songs' lyrics are appropriate and include:

"I hear a lot of stories
I suppose they could be true
All about intellectual property and what it can do to you
Highest risk of striking out
The risk of getting hurt
And still, I have so much to learn"

Ok, ok, I changed a word or two; listen to the original lyrics below and enjoy your weekend. 

Music Copyright Fees for Television and Radio Announced

Picture:
TV History

JLM Pacific Epoch (China Business Headlines & Analysis from JL McGregor & Company) translated a report by West China City Daily quoting Chinese composer Xu Peidong that China's National Publishing Administration plans to set up copyright fees of 2.4 Renminbi per minute for music used on television and 0,3 Renminbi per minute for Radio. Read here.

Read more about the General Administration of Publication under the Central People's Government on the site of ChinaCulture.org, here.

Also the US Library of Congress gives some information about the history of the National Publishing Administration: "In 1982 the China National Publishing Administration, the umbrella organization of Chinese publishers, was placed under the Ministry of Culture, but actual management of the industry was directed through four systems of administration: direct state administration; administration by committees or organizations of the State Council or the party Central Committee; armed forced administration; and administration by provinces, autonomous regions, or special municipalities."
Read more here.

IP Dragon's Worldwide Review of Seizures and Measures Against Counterfeit and Pirated Goods Originating from China

This article will be a work in progress, because everytime I will come across news about a country that seized counterfeit or pirated goods originating from China I will add the link, so that a worldwide overview will emerge. If you find articles about activities against infringed goods from China in exotic places (or if such a countery has any link with infringement originating from China), feel free to send me the links. Thanks.

Afghanistan – Islamic Republic of Afghanistan:

Paterson, Anna, Asif Karimi, Understanding Markets in Afghanistan: A study of the market for pharmaceuticals, April/May 2005

Albania – Republic of Albania

Algeria – People's Democratic Republic of Algeria

Andorra – Principality of Andorra


Angola – Republic of Angola



Antigua and Barbuda – Antigua and Barbuda



Argentina – Argentine Republic



Armenia – Republic of Armenia



Australia – Commonwealth of Australia



Austria – Republic of Austria



Azerbaijan – Republic of Azerbaijan



The Bahamas – Commonwealth of The Bahamas



Bahrain – Kingdom of Bahrain



Bangladesh – People's Republic of Bangladesh



Barbados



Belarus – Republic of Belarus



Belgium – Kingdom of Belgium



Belize



Benin – Republic of Benin



Bhutan – Kingdom of Bhutan



Bolivia – Republic of Bolivia



Bosnia and Herzegovina – Bosnia and Herzegovina



Botswana – Republic of Botswana

Phillips, Jeremy, 'Poison toothpaste alert in Botswana', Afro-IP, January 25, 2008.

Brazil – Federative Republic of Brazil



Brunei – Negara Brunei Darussalam



Bulgaria – Republic of Bulgaria



Burkina Faso – Burkina Faso



Burma – Union of Myanmar



Burundi – Republic of Burundi



Cambodia – Kingdom of Cambodia



Cameroon – Republic of Cameroon



Canada


Cape Verde - Republic of Cape Verde

Central African Republic


Chad – Republic of Chad


Chile – Republic of Chile



China – People's Republic of China: it can be argued that the People's Republic of China is the greatest victim of the infringements originating in China.

Wang Guanqun, China seizes counterfeit commodities worth 1.55 bln yuan in 2008, Xinhua, March 14, 2009

Colombia – Republic of Colombia


Comoros – Union of the Comoros


Congo – Democratic Republic of the Congo (Congo-Kinshasa)



Congo – Republic of the Congo (Congo-Brazzaville)



Costa Rica – Republic of Costa Rica



Côte d'Ivoire – Republic of Côte d'Ivoire (Ivory Coast)



Croatia – Republic of Croatia



Cuba – Republic of Cuba



Cyprus – Republic of Cyprus



Czech Republic



Denmark - Kingdom of Denmark

Djibouti – Republic of Djibouti


Dominica – Commonwealth of Dominica



Dominican Republic



East Timor – Democratic Republic of Timor-Leste



Ecuador – Republic of Ecuador



Egypt – Arab Republic of Egypt



El Salvador – Republic of El Salvador



Equatorial Guinea – Republic of Equatorial Guinea



Eritrea – State of Eritrea



Estonia – Republic of Estonia



Ethiopia – Federal Democratic Republic of Ethiopia



Fiji – Republic of the Fiji Islands



Finland – Republic of Finland



France – French Republic



Gabon – Gabonese Republic



The Gambia – Republic of The Gambia



Georgia



Germany – Federal Republic of Germany



Ghana – Republic of Ghana



Greece – Hellenic Republic



Grenada



Guatemala – Republic of Guatemala



Guinea – Republic of Guinea



Guinea-Bissau – Republic of Guinea-Bissau



Guyana – Co-operative Republic of Guyana



Haiti – Republic of Haiti



Honduras – Republic of Honduras



Hong Kong – special administrative region of Hong Kong


Hungary – Republic of Hungary



Iceland – Republic of Iceland



India – Republic of India



Indonesia – Republic of Indonesia



Iran – Islamic Republic of Iran



Iraq – Republic of Iraq



Ireland



Israel - State of Israel

Italy - Italian Republic

AFP via Plush, 'Italian police bust Chinese-Senegalese counterfeiting ring', November 7, 2009.


Jamaica


Japan - State of Japan

Mainichi Daily News, 'Japan, China agree to set up working group to address intellectual property violations', June 4, 2009.

Jordan - Hashemite Kingdom of Jordan

Kazakhstan - Republic of Kazakhstan


Kenya - Republic of Kenya

Phillips, Jeremy, 'China blames Kenya for buying its fakes', Afro-IP, April 30, 2008.

Kiribati - Republic of Kiribati

Korea, North - Democratic People's Republic of Korea (North Korea)


Korea, South - Republic of Korea (South Korea)


Kosovo - Republic of Kosovo

Kuwait - State of Kuwait

Kyrgyzstan - Kyrgyz Republic


Laos - Lao People's Democratic Republic

Latvia - Republic of Latvia


Lebanon - Republic of Lebanon

Lesotho - Kingdom of Lesotho

Liberia - Republic of Liberia

Libya -Socialist People's Libyan Arab Great Jamahiriya

Liechtenstein - Principality of Liechtenstein

Lithuania - Republic of Lithuania

Luxembourg - Grand Duchy of Luxembourg

Macao special administrative region of Macao

Macedonia - (Former Yugoslav) Republic of Macedonia

Madagascar - Republic of Madagascar

Malawi - Republic of Malawi

Malaysia

Maldives - Republic of Maldives

Mali - Republic of Mali

Malta - Republic of Malta

Marshall Islands - Republic of the Marshall Islands

Mauritania - Islamic Republic of Mauritania

Mauritius - Republic of Mauritius

Mexico - United Mexican States

Micronesia - Federated States of Micronesia

Moldova - Republic of Moldova

Monaco - Principality of Monaco

Mongolia

Montenegro

Morocco - Kingdom of Morocco

Mozambique - Republic of Mozambique

Namibia - Republic of Namibia

Nauru - Republic of Nauru

Nepal - Federal Democratic Republic of Nepal

The Netherlands - Kingdom of the Netherlands

New Zealand


Nicaragua - Republic of Nicaragua

Niger - Republic of Niger

Nigeria - Federal Republic of Nigeria

Olivier, Darren, 'Nigeria textile industry under threat from China fakes', Afro-IP, October 27, 2008.

Norway - Kingdom of Norway

Oman - Sultanate of Oman

Pakistan - Islamic Republic of Pakistan

Palau - Republic of Palau

Panama - Republic of Panama

Papua New Guinea - Independent State of Papua New Geuinea

Paraguay - Republic of Paraguay

Peru - Republic of Peru

Philippines - Republic of the Philippines

Poland - Republic of Poland

Portugal - Portuguese Republic

Qatar - State of Qatar

Romania

Russia - Russian Federation

Friedmann, Danny, 'Cherkizovsky Market Closed Because of Counterfeit and Pirated Good From China', July 31, 2009.

Rwanda - Republic of Rwanda

Saint Kitts and Nevis - Federation of Saint Christopher and Nevis

Saint Lucia


Saint Vincent and the Grenadines

Samoa - Independent State of Samoa

San Marino - Republic of San Marino

São Tomé and Príncipe - Democratic Republic of São Tomé and Príncipe

Saudi Arabia - Kingdom of Saudi Arabia

Senegal - Republic of Senegal

Serbia - Republic of Serbia

Seychelles - Republic of Seychelles

Sierra Leone - Republic of Sierra Leone

Singapore - Republic of Singapore

Slovakia - Slovak Republic

Slovenia - Republic of Slovenia

Solomon Islands


Somalia - Federal Republic of Somalia

South Africa - Republic of South Africa

Spain - Kingdom of Spain

Sri Lanka - Democratic Socialist Republic of Sri Lanka

Sudan - Republic of the Sudan

Suriname - Republic of Suriname

Swaziland - Kingdom of Swaziland

Sweden - Kingdom of Sweden

Switzerland - Swiss Confederation

Syria - Syrian Arab Republic

Taiwan - Republic of China

Tajikistan - Republic of Tajikistan

Tanzania - United Republic of Tanzania

Friedmann, Danny, Olympic Torch Tanzania Brings Protests Against ...Chinese Counterfeit Products, IP Dragon, April 14, 2008

Phillips, Jeremy, 'China condemns its own export of fakes to Tanzania', Afro-IP, August 14, 2008.

Thailand - Kingdom of Thailand

Friedmann, Danny,