China Intellectual Property Rights
China Intellectual Property Rights
Intellectual Property Rights代写 The Trademark Law is therefore not in harmony with the Trade-Related Intellectual Property Rights tenets.
Intellectual property rights refer to the exclusive rights given to innovators for their creativity over its use for a given period.
They encompass copyrights, patents, industrial designs, trademarks, geographical indications, plant varieties, trade dresses, and in some cases trade secrets. About the recognition of a trademark as an intellectual property right. It can be defined as a sign through which business entities use in identifying their products or services which makes them distinct from those of their competitors. (Weinstein and Fernandez, 2004) A trademark can be in the form of distinctive wording, marks or any other feature. The main purpose of using a mark is to help the consumers in establishing a link between the various goods or services offered by an entity apart from those offered by a competing entity. Intellectual Property Rights代写**范文
China has established well-known trademarks protection towards fulfilling its international obligation as well as promotes its economy.
This has been in line with its obligation of protecting well-known foreign trademarks. Which have undergone various developments over the years to what it is today. In 2001, China revised the Trademark Law which is the key law safeguarding core trademarks. The revised law offers three parameters relating to protecting well-known trademarks. Whereas Article 13 forms China’s primary principle protection system principle of well-known marks (Moser, 2011). According to Article 13, the well-known such marks are classified as either registered or non-registered.
The Chinese Trademark Law which was revised in 2001 was the foundation of its Trademark Law. Intellectual Property Rights代写
The law has 3 provisions about the protection of well-known marks with Article 13 being the core of China’s protective system. Whereas the two types of marks enjoy protection from unauthorized use as well as their registrations whether reproduced, translated, or imitated. The registered marks are further protected to their being non-identical or dissimilar. The protection of non-registered marks applies to goods or services which are specifically deemed similar or identical. The Trademark Law is therefore not in harmony with the Trade-Related Intellectual Property Rights (TRIPS) tenets (Bird and Jain, 2008).
Background Intellectual Property Rights代写
Concerning the protection of intellectual property rights today. China has made great strides bearing in mind that it had no patent laws before 1984. The ideas of achievements of persons leave alone legally protecting their inventions was something. That was greatly suppressed before Deng Xiaoping reign in many ways which continue to have some ramifications today. IP theft in the 1990s was widespread but policymakers from the West hardly took notice as China perfected the manufacture of low-end products thanks to an abundance of cheap labor and a lax law regime (Evans, 2002). Intellectual Property Rights代写**范文
However, the amendment of patent laws by China in 2001 as a condition for joining the World Trade Organization was a milestone towards adherence to expected international standards. This move was further followed by a recent decision of promoting home-based innovations. And development of strategic industries as spelled out in the highly controversial Made in China 2025 program. (World Intellectual Property Organization, 2017) The move fueled the local businesses to seek new technologies from abroad as well as promote their local capacity of innovativeness.
China became subscribed to the membership of TRIPS and the Paris Convention and TRIPS in 2001 and 1985 respectively. Intellectual Property Rights代写
It is, however, worth noting that the State Administration for Industry and Commerce (SAIC) had only approved some 2,702 trademarks in its first 26 years of membership measly 4.5% comprising successful foreign applicants. (http://sbj.saic.gov.cn/cmsb/) The well-known marks are defined as those that are popular and widely known. Such marks need special protection from infringements in line with the Paris Convention’s Article 6 relating to the protection of industrial property rights. The Convention binds member states to safeguard well-known marks. That are not registered with goods deemed as similar or identical. Intellectual Property Rights代写**范文
The expansion of the TRIPS Agreement threshold 1994 with Articles 16 (2) and (3) saw the inclusion of goods. And services that are dissimilar or non-identical (Weinstein and Fernandez, 2004). In 2003, The Provisions of Determination and Protection of Well-known Marks (PDPWM) came into force SAIC described as an important law in China for the protection of intellectual property rights. This law further defined what was regarded as a “well-known trademark” by spelled out how to determine. Whether a mark can be regarded as such. The further provided for reasons of denying mark recognition based on similar facts as well as grounds with a period of one year starting. When the determination was made (World Intellectual Property Organization, 2017).
Key Governing Laws and Regulations Intellectual Property Rights代写
Top According to the Trademark Law, Article 14, and parameters of considering the determination of a trademark as a well-known are specified. In 1999, the adoption of the parameters was done with the reference of the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks. As a Joint Recommendation with the Union for the Protection of Industrial Property and WIPO. On the other hand, Article 41 (2) of the Law identified timeframes within. Which a claim can be entertained from the owner of a mark.
The provisions of this Article were in harmony with other Articles of the Paris Convention. Following the 2002 issuance of the Implementation Rules of the Trademark Law by the State Council, more implementation rules came into place. Related Articles dealing with well-known trademarks are Article 45, Article 13 and 53. (Kossof and China, 2014)
Definition and scope of protection Intellectual Property Rights代写
The two concepts, “well-known” and “famous” marks are viewed differently in distinct in China.
The former enjoys considerable and broader protection scope but certification for the latter is available to those marks. Which are registered by Chinese citizens and businesses. No definition is given for a ‘famous mark’ anywhere within the governing laws and regulations of China. Although the concepts of ‘well-known’ and famous marks are treated as synonymous in some jurisdictions. The concepts of the standards of protecting the status of a famous mark are higher in comparison to well-known marks. But this is different in China (World Intellectual Property Organization, 2017). Intellectual Property Rights代写**范文
A ‘well-known’ trademark defines as that which is largely known by the right segment of the society and also has a higher reputation in China. As such, any mark that is owned by a party from any other jurisdiction can enjoy recognition in China as well known irrespective of whether registered or not as long as the necessary provisions of the law are adhered to. According to Article 13.1, trademarks can be recognized as well known as on their own merits. And therefore have limited recognition. The recognition of a well-known mark in an instance will not necessarily mean. That it will give the same results but can be used for reference purposes.
According to Yang and Clarke (2005), although the acquisition of well-known status in China is in three ways. Intellectual Property Rights代写
Protecting well-known marks which are not registered is however limited to those covering similar goods or services, according to Article 13(2) of the Law. Marks that are well-known and registered on the other hand can get cross-class protection. This kind of protection does not necessarily mean the registered marks may gain protection in any of the 45 categories. There are other mitigating factors such as the connection of goods and services, the distinctiveness of a mark. Intellectual Property Rights代写**范文
Its reputation degree and possible misunderstandings likely to be experienced among the relevant users – all have to be put under consideration for every particular case. (Chengsi, 1998) In cases where of clear differences of goods or services under the well-known and disputed mark. It is the well-known mark that is likely to get protection to avoid dilution of its uniqueness and reputation. As long as the reputation enjoyed is high while a case of bad faith is applicable for the disputed mark.
Factors in determining the well-known status Intellectual Property Rights代写
The determination of the status of a trademark status is provided for by Article 14 of the Law under the following considerations:
- its use duration;
- its duration, range and geographical scope of promotion activities
- other relevant records of the well-known status; and
- Any other aspects identifying the mark as such (Zhe, 2012).
In case a mark fails to meet these requirements but there is proof that it has enjoyed a high reputation or has a long history in the market. Recognition as a well-known can still be granted. Foreign applicants with trademarks enjoying a higher reputation in the local Chinese market. There can be a reasonable reduction of the burden of proof.
In a trademark dispute between Chanel v Huayi Maternal and Child Suppliers Company (2013) Intellectual Property Rights代写
The Beijing High People’s Court ruled that Chanel’s trademarks had achieved the well-known status despite the apparel giant submitting evidence. Which never met the threshold as listed in Article 14. The opposition mark not registered eventually. The court argued that in the determination of a well-known status mark, all the provision of Article 14 should be taken into consideration. Though none was a must for a mark to be granted a well-known status.
In this case, the court would not hesitate to register a mark as well known by the relevant users in China as long as the holder of its rights demonstrates. That the trademark is well known or an opposing entity has no other party objections. As it was, CHANEL was a popular brand in the Chinese market enjoying a higher reputation after its long-term use as well as great promotion (Zhe, 2012). Therefore, the burden of proof on Chanel was reasonably reduced. And certification of its status as a well-known trademark granted. Intellectual Property Rights代写**范文
Further, the Chinese characters used on the opposing party’s mark were ruled to as similar to those of the second mark mentioned therefore terming making it a copy. Additionally, the identified characters in both products bearing the marks were used daily. The coexistence of the marks in the market, therefore, was likely to confuse the users. And thus the effect of the well-known good diluted owing to the cited marks causing damage to Chanel.
Concept of well-known Intellectual Property Rights代写
The provision of the law in China provides for protecting well-known trademarks by judicial or administrative authorities. However, these authorities define such marks differently. In Article 2 of PDPWM, SAIC defines a trademark that is well-known as that. Which is largely known by the right segment of the society as well as has a relatively good reputation in China. The Supreme Court on the centrally defines it in Article 1 as a mark largely known by the public (Kossof and China, 2014).
When contrasted, the two authorities identify the protection territory as China.
They also demarcate and define the concept of the relevant public through a specification of quantity requirement about the usage of the term “widely” to mean “known”. From these definitions in China, it is possible to have different standards of review of marks being considered well-known in use in various sectors. For illustrative purposes, goods that are used daily like “Estée Lauder” would be known widely as opposed to products in unfamiliar sectors like “Deere” in the agricultural equipment industry. In the “Fortune 500” 2011 listing, “Estée Lauder” is at 307, while “Deere” is listed at 98. Though the two were registered in 2010, “Estée Lauder” is easily identified as a well-known mark.
There is a requirement by SAIC that specifically requires marks that are well-known to have a higher reputation in China. Intellectual Property Rights代写
The general provisions of China’s Trademark Law are aimed at improving the administrative aspects of intellectual property rights, protecting them. And encouraging entities and individuals by guaranteeing the quality and reputation of their services and products. This is aimed at protecting the interests of all parties as well as the promotion of China’s socialist market. Therefore, the Law aims at regulating distinct functions of marks. And also standards of commodities or services where such trademarks are used. This means that the threshold for both the quality and quantity of ordinary trademarks as well as those. That are well-known marks is strict or high in China (Yang and Clarke,2005).
Identification of Well-Known Trademarks Intellectual Property Rights代写
The responsibility to identify the well-known marks in China falls under the Trademark Office, the TRAB, and the courts and state AIC. The local AIC has the responsibility of governing and identifying such trademarks. The recognition of a mark as famous applies only to trademarks that are registered by indigenous entities or citizens. But no foreign applicants can apply for certification in China (International, 2015). The Beijing AIC, for example, can only govern and recognize for certification famous trademarks only registered by companies or persons in Beijing. The rule for qualification and recognition for famous status for a trademark can only be for those. That have been registered for at least three years by the local AIC.
According to Article 14, there are specific things for consideration in the determination of well-known marks including the recognition in a relevant segment of the society, time of its use, the geography of forms of promotion, and protective history, among others. In identifying such marks, the factors are considered in details although none is a must in satisfying the provisions of PDPWM’S Article 10 (Bird and Jain, 2008). Intellectual Property Rights代写**范文
Consequently, the Trademark Review and Adjudication Board (TRAB) carry out an internal review in determining the status of a trademark. Intellectual Property Rights代写
The guiding review document specifies that an unregistered mark should have been in use for the past 5 years before the date of applying of a disputed mark. Further, the registration of such a mark should have to be done and used in the past 2 and 5 years respectively before the date. Any provided supporting material should be in a form proving its well-known status before the application date. Economic indicators should include special audits attached including audit reports or certificates issued by tax authorities (Jin, 2000). Intellectual Property Rights代写**范文
Any industry rankings that are recognized should be issued by national associations. Recognitions or awards must have been done by authorities above provincial levels while any publicity. And promotion to be accompanied by evidence like advertisement contracts, advertisement copies. And invoices while geographical sales area covering over 10 provinces or regional zones.
Evidence proving a well-known trademark as provided for by Article 3 of PDPWM is general as there is a specific definition that is set within the internal review documents.
This has resulted in most of the trademarks to be outside of particular protection of well-known marks. And they can no longer be regarded well-known practically according to the internal review rules. Because they are unfamiliar to non-professionals. The trademark “TWITTER” although considered a well-known mark across the globe was registered in China on 28 May 2010. However, SAIC did not recognize it as a well-known trademark as its registration was done within less than 2 years (Zhe, 2012). Therefore, the final review rules in China can be considered as stubborn. And may impact them negatively in determining the registration and recognition of well-known trademarks of foreign entities.
In a nutshell, the protection of marks that are well-known marks in China has largely been passive as the steps for identification starts only when there is an actual dispute. Intellectual Property Rights代写
Additionally, any effects of a well-known mark that have been proven in a dispute are only confined within that instance and can only be used as a reference during the next time. Therefore, two bodies of SAIC play the roles of administration about helping in identifying a mark. They can only help to determine a mark as well-known in some instances. Such as trademark opposition, administration, and review of opposition or disputes. Intellectual Property Rights代写**范文
Article 22 that was published by the Supreme People’s Court in 2002 provides for trademark cases to be heard. But upon request of parties involved concerned as well as the situation of cases concerned. Rule if a mark should be deemed well-known or not (Shi, 2014). The Trademark Office can, therefore, deny a request for registration by way of the dispute procedure. However, the last word rests with the People’s Court in determining whether a trademark to be deemed well-known or not concerning administrative litigations.
Case studies Intellectual Property Rights代写
On a trademark dispute, a local court decreed that three local shoemaking entities pay fines amounting to $1.5 million to American sportswear company, New Balance, for trademark infringement. This was described by lawyers as the single largest award to be given to a foreign entity trading in China. The award was hailed as not only New Balance’s victory, but also for other foreign-owned businesses. Which have been complaining that China had not done enough towards protecting their brands. Intellectual Property Rights代写**范文
Though the award was relatively small in terms of international standards, it was instrumental that it came just three days following an investigation ordered by the US President Trump into China’s alleged infringement of intellectual property rights. Though the award was small internationally, it was significant in serving as a pointer for change about the Chinese government’s attitude towards counterfeiting as well as relevant tweaks to related legislations. Before the passage of the 2014 trademark law, penalties for infringement lawsuits mostly went below a maximum of $75,000. With the new legislation, this was improved to a maximum of $450,000 (Wee, 2017).
Piracy problem Intellectual Property Rights代写
The decision by the Suzhou Intermediate People’s Court found the three local entities guilty of counterfeiting the New Boom brand. Which was in it a seizure of New Balance’s market share. This was said to have damaged drastically the reputation of New Balance business. The three defendants in court behind New Boom were said to have relied on “malice of free-riding” as the action had confused a large number of the consumers. This particular ruling goes along to show China’s will to tackle the long-standing problem of piracy through counterfeited products in almost all sectors.
However, counterfeiters have gone beyond simply making knockoffs but have resulted in copying all aspects of popular brands, less the name. According to New York Times (Aug 22, 2017), the New Balance’s brand case was just one among others as it faces more challenges from brands. That are protected by trademark law in China such as New Barlum, New Boom, and New Bunren. A trademark in China is given to the first entity to file for it which is not the case in the US. Intellectual Property Rights代写**范文
It has taken a lot of challenges for New Balance to do business in China where it started selling shoes in 1995. It has been fighting with counterfeit producers, a dishonest supplier who was exporting its deeply discounted shoes as well as fending off the use of its localized name in courts. New Balance also suffered a setback in April 2015; it was slapped with a $16 million fine by a Chinese court following the loss of a court case to a businessman. Who had trademarked its Chinese name, Xin Bai Lun.
Intellectual copyright infringement Intellectual Property Rights代写
New Balance had been sued by Zhou Lelun for intellectual copyright infringement on his trademark, Xin Bai Lun, a loosely translated to New Balance. The name had been applied for by Zhou’s relatives in 1994 as was the custom by entrepreneurs in China to register trademark names foreign-based businesses. And later negotiate or sue if the businesses seeking to enter China. Though largely advanced, China’s trademark laws are different from their Western counterparts in several instances. One of these major differences is its first-to-file country policy. The policy recognizes whoever applies for a trademark first will be granted irrespective of another business trading with the same name in another country.
Trademarks infringements Intellectual Property Rights代写
The case of New Balance is just one of the many businesses fighting for their trademarks infringements in China. In another instance, a Beijing court gave a verdict over a suit in which a Chinese leather product entity was stamping onto its wallets “IPHONE”. It ruled that the leather company had more rights to the name over the multi-billion actual iPhone maker, Apple. Apple (AAPL) has been in the courts since 2012 fighting over infringement of its trademark name against Xintong Tiandi unsuccessfully. Intellectual Property Rights代写**范文
The legendary Michael Jordan had also litigated a shoe-making company unsuccessfully for expropriating his Chinese name, Qiaodan. As well as his popular flying silhouette in the creation of a popular basketball line shoes (Gervais, 2015). The expansion into China by the giant motor corporation, Tesla, was facing imminent headwinds before an amicable agreement with the registered trademark owner of the name in China.
Crafty ways Intellectual Property Rights代写
In 2000, Chang was manufacturing an own brand of shoes, Henkees, which were a good imitation New Balance to its approximation of the angled N. This was just the beginning of New Balance’s headaches with more copycat brands becoming more innovative. One of these slicker copycat brands called New Bar Lun was launched in 2005 called New Bar Lun. It had even branded stores and designed logos which were an obvious imitation of the American shoemaker brand materials. Intellectual Property Rights代写**范文
In Zhou’s case, his argument in court was very clear, New Balance had knowingly infringed on his trademark. It had previously fought in the past from getting it and this argument won him the damages in the Guangzhou court in 2015. In the subsequent appeal, the New Balance legal team came armed with more incriminating information against Zhou’s crafty ways.
The evidence adduced in court showed how Zhou had over the years been accumulating trademarks with loose translations of different major international brands around the world. These included Hugo Boss, Dunhill, Enzo, among others, which proved New Balance trademark infringement was not just an isolated incidence. Taking advantage of China’s trademark laws, New Balance lawyers also proved how Zhou initially registered a phony entity in Hong Kong. A routine practice by China’s shrewd entrepreneurs in the 90s to then use their “foreign companies” to get trademarks or bank financing in China (Zhe, 2012).
Arguments Intellectual Property Rights代写
Though the arguments did not win the appeal, what was clear was that Zhou registration was in bad faith. However, China’s trade laws have an exception on bad faith targeting the so-called trademark squatters. The law holds that if anybody may register a trademark with the knowledge that there was another user like Xin Bai Lun was being used by New Balance in 2003. The registered trademark can be lawfully be invalidated. According to China’s IP lawyers, bad faith exceptions are difficult to be proved in court. Intellectual Property Rights代写**范文
Zhou’s case was complicated by the fact that he had been holding held Bai Lun way back in the 1990s and therefore the best thing for New Balance then would have been to pay him for his trademark and let the matter rest. The reason why there are many fakes of popular brands in China like New Balance according to Yang and Clarke (2005), is because of their popularity with the consumers. This reasoning is supported by counterfeit consultants who say brands like Nike, Adidas and Under Armour are victims of almost a similar level of counterfeiting in China.
The Chinese courts seem to have taken the trade laws into a new level with more good news relating to a 2012 ruling on foreign trademark dispute case. Castel Group, one of the biggest vintners in Europe was slapped with a $5 million fine for infringement of a trademark about Castel name translation. The name was registered by a Chinese-Spanish businessman but following an appeal, the fine was reduced to $80,000 by the Supreme Court. This was a good signal that the previous fine had been high.
Trademark dispute Intellectual Property Rights代写
Lacoste, the French garment maker giant has been in and out of courts to safeguard its trademark against infringements over the years. Lacoste had separately filed lawsuits in 2005, 2006 and 2007 across China for trademark infringements. The judgments in the suits held that CIL had infringed on Lacoste’s trademarks. It won also trademark court battle against the Hong Kong-based clothes firm, Crocodile Garments, on appeal over the use of its widely recognized crocodile logo which has been under threat by several enterprises. Intellectual Property Rights代写**范文
Rival business entities including Crocodile International have been battling over the right of marketing their products using the reptile icon (Gervais, 2015). In their trademark dispute, Lacoste has been fighting for its general right to use a right-facing crocodile with Crocodile International claiming the right of using a left-facing one.
Crocodile International’s copyright
The basis of Lacoste’s claim was that in 1933, Rene Lacoste, the former French tennis player had patented the crocodile logo in France on his sports clothing line. On its part, Crocodile International based its argument on the fact that it designed the trademark first in 1947 using the English word “crocodile” and entered the Chinese market in 1993. However, a Shanghai No 2 Intermediate People’s Court found Lacoste guilty of infringing on Crocodile International’s copyright.
Scopes of Protection Intellectual Property Rights代写
Well-known marks that are not registered enjoy protection in case of on similarity of goods or services (Article 13 ).
An Australian entity had sought to register the “PIZZA HUT” trademark under class 33 within the stipulated timelines. The opposition by Pizza Hut, Inc was upheld by the trademark Office because it was determined to have been a well-known mark for 2 years. Therefore, protecting marks that are not registered but well-known cannot be deemed to be cross-class protection than that which is provided for in TRIPs.
However, their registration may have cross-class protection in line with Article 13 (2). Intellectual Property Rights代写
The provision of Article 10 has it that in case of a cross-class protection claim, the court should consider all relevant facts about the domain of the public relevancy of the trademark. As well as the association degree between the marks. It is also provided in Chinese law that well-known marks can be in competition with another about Article 53 together with Article 13. A suit pitting Wal-Mart and Tong Xiaoju before the Shenzhen Intermediate People’s Court said. That since 1996 Wal-Mart operated numerous departmental outlets under the trade name “Wal-Mart” in China. The brand and its reputation have grown steadily the main. “Wal-Mart”, enjoying a much higher reputation. Intellectual Property Rights代写**范文
The registered mark, “Wal-Mart” should be recognized as a well-known. The use of the mark without the authority of Tong Xiaoju was therefore illegally benefiting from the reputation of Wal-Mart’s trademark (Gervais, 2015). The court further observed that this as a case of unfair business competition. Likely misleading the society and also damaging its image. Tong Xiaoju was to stop using the “Wal-Mart” entity name, cancel his www.woerma.com.cn domain name. As well as pay compensation for loss to the tune of 120,000 Yuan.
In theory Intellectual Property Rights代写
It is expected that the relevant authorities involved in the registration of marks can resolve cases within the right references of the appropriate laws. When applications are made by the interested party for cancellations of name registration following conflicts between an enterprise name viz-a-viz known marks according to Article 9(2) of PDPWM. However, things are different practically as the competent authority happens to be the same authority involved in the approval of the entity name registration and therefore cannot rectifying itself. Intellectual Property Rights代写**范文
Essentially, well-known marks may compete with domain names according to Article 4 (2) of Explanation of the Supreme People’s Court on the Law Application Issues as Hearing of the Civil Dispute Cases Involving Domain Names of Computer Network. This was evident in Guowang v Du Pont (2001) Gao Zhi Zhong Zi No. 47, where the Beijing Municipal Higher People’s Court expounded on the range of protection of such trademarks to the internet with the assumption. That they should enjoy all benefits that they bring to themselves.
The ‘One center and two basic points’ evidence collection principle Intellectual Property Rights代写
The principle was put to test in a case litigated by a foreign client whose trademark had gained recognition as a well known by three levels of authorities in China.
The trademark holder was an internationally recognized toy brand but during the time of applying for recognition in China. The holder due to some marketing reasons failed to submit sufficient supporting evidence like protection records, advertisements. Or financial figures and economic indicators in line with the Trademark Law’s Article 14. (Weinstein and Fernandez, 2004) Despite the client submitting sales and promotion evidence. It did not meet the set recognition criteria for well-known trademarks due to insufficient subjective evidence. The lawyers proceeded to collect objective evidence with a focus on public familiarity. Intellectual Property Rights代写**范文
They showed how the toy brand had invested heavily in DreamWorks including jointly filming a series of cartoon films that featured their toy dolls. The series was identified by the brand and achieved high broadcast ratings on different video platforms in China. This data was notarized as prove that the series of cartoon films under the toy brand title enjoyed a huge following in has in China. Secondly, the almost 5000 news reports by mainstream newspapers on the brand were notarized. The news reports covered the whole of China and in the reports; the brand was referred to as an ‘international famous brand’ (Gervais, D. J. (2015).
Comparison Intellectual Property Rights代写
Further, it was noted that there was another toy brand operating in the same field. Which had been gained a well-known recognition and a comparison of the two brands done. It turned out that the customer brand had a higher reputation in comparison to the other brand already recognized as a well-known trademark. The judgments were then collected and notarized. Where the brand had been recognized as well-known in over 20 countries outside China. Intellectual Property Rights代写**范文
This included notarized and legalized judgment in an Indian court where the Indian judgment was cited. The brand’s sales volume may not have been large in India but because of its expensive price. And therefore it should not be considered unfairly as not known among the Indian public. Because of a low volume of sales. The situation is like that of BMW and Audi which does not enjoy high sales because of their premium pricing. But it would be unfair to claim the two brands of cars were not well-known based on their low sales volume.
It would, therefore, be only fair to say that the two-car brands are widely known to the public in India, in spite of the low sales volume. The situation of the toy brand in China mirrors that of the brands in India.
Evidence Intellectual Property Rights代写
The combination of the above evidence coupled with the availed but objective third-party evidence submitted in court backed by the existing evidence available to the foreign client. The toy brand was granted recognition in China as a well-known mark. The combination of such evidence has been used as a reference point in two other cases and has been used in three well-known trademark recognitions litigations before the Beijing Intermediate People’s Court. The Higher People’s Court and the Trademark Review and Adjudication Board. Intellectual Property Rights代写**范文
The ‘one center’ simply holds that all evidence collected should mainly focus on the one center towards proving the degree of awareness by the relevant public of the mark. On the other hand, the ‘two basic points’ refers to collection of evidence from two sources. Where one should be subjective evidence. (evidence that is collected and submitted by the clients) While the second is the objective evidence. (evidence the rights holder may not have or provide but can be found from irrelevant third parties (Shi, 2014). From this understanding, it is easier to understand and remove the confusion. That surrounds the type of evidence required in terms of registering and getting trademark recognition in China.
It is given this that a lawyer explaining to a foreign client the type of evidence required to prove the well-known status of a mark may combine may the legal expertise as well as their creative. And personal know-how concerning evidence collection accordance to the ‘one center and two basic points’ principle.
Conclusion Intellectual Property Rights代写
Subsidiaries or joint ventures of foreign entities in China should apply for certification of their marks as famous as this can greatly help in promoting a business. Such recognition can go a long way in future granting of a well-known status. However, the quality of their offerings should be high to meet the threshold provided for in the laws of the land.
The rights of foreign unregistered trademark holders with some level of reputation. But not yet at the well-known status level are entitled to some level of protection under the Trademark Law provisions in case of a dispute. Following China’s first-to-file principle, it is important for prompt application by rights holders. The Trademark Office has been seen to be more welcoming to the protection of trademarks with a certain level of reputation.
There have been cases of some opposition where the confusion was brought by identical or similar marks with goods or services being closely connected. However, according to the Chinese classification system they were not deemed as similar. And they had achieved a measure of reputation. Under Article 10.1 (7), the Trademark Office would reject such applications. Because according to the law such signs are regarded as deceptive. And therefore likely to mislead the consumers in terms of quality or other features. And therefore denied registration as a trademark.
Trademark rights Intellectual Property Rights代写
Concerning defensive applications of different classes of goods and services, applicants are advised to protect their trademark rights in China instead of suing for invalidations or oppositions of competitors’ trademarks. As it may be time-consuming and costly and the results uncertain (Evans, 2002). In the past, the Trademark Office has requested trademark owners to furnish evidence of economic indicators relating to their products or services for recognition as well-known marks. Intellectual Property Rights代写**范文
In the absence of such evidence, courts have also ruled that the plaintiffs failed to provide sufficient economic indicators proving well-known trademark status. And therefore would not give well-known recognition of the cited trademarks. Examples of economic indicators that can be used include production, output value, and profit and tax data. The economic indicators or ‘financial figures’ can be in the form of records of audit reports of listed entities or proved by the tax bureau or audit reports (Kossof and China, 2014).
Trademark Law Intellectual Property Rights代写
Foreign applicants for certification may get a bit confused about the application criteria of the evidence types required for well-known status recognition in China. Typically, the cause of such confusion would be in terms of the various kinds of supporting evidence required by China’s administrative and judicial authorities. The confusion may not necessarily be because of a lack of knowledge of Chinese law.
Most multinational clients have had years of business and investment experience. And some largely familiar with China’s legal system (Zheng and Ren, 2006). However, the legal provisions about recognizing well-known trademarks under the Trademark Law are not very clear as they should be. This is compounded by the explanations given by the local law practitioners in China regarding the relevant legal provisions as they are a little obscure. And this has resulted in some sense of misunderstanding and uncertainty.
Going forward Intellectual Property Rights代写
The Courts and the various trademarks administrative authorities are expected to more proactive in recognizing. And certifying international brands entering the Chinese market. This should be so especially given that its enterprising citizens travel widely across the world. And are therefore patronizing with foreign brands which may not be prevalent in China in terms of high sales. But they are well known globally. Intellectual Property Rights代写**范文
It would, therefore, be a transvestite of justice if such marks like “Facebook” and “Twitter” cannot gain recognition locally. Just because of their minimal use (Yang and Clarke, 2005). More progressive legislation in this area is expected shortly for China to remain as a competitive international market for all brands. And retain its position in the world as a global economic superpower by way of protecting well-known foreign trademarks.
References Intellectual Property Rights代写
Bird, R., & Jain, S. C. (2008). The global challenge of intellectual property rights. Cheltenham, UK: Edward Elgar.
Chengsi, Z. (1998). The TRIPS agreement and intellectual property protection in China. Duke J. Comp. & Int’l L., 9, 219.
Evans, A. (2002). Taming the Counterfeit Dragon: The WTO, TRIPS, and Chinese Amendments to Intellectual Property Laws. Ga. J. Int’l & Comp. L., 31, 587.
International, B. P. U. (2015). China investment and business guide: Strategic and practical information. Place of publication not identified: Intl Business Pubns USA.
Kossof, P., & China. (2014). Chinese trademark law: The New Chinese Trademark Law of 2014.
Moser, M. J. (2011). Intellectual property law of China. Huntington, N.Y: Juris Publishing.
Gervais, D. J. (2015). International intellectual property: A handbook of contemporary research.
Jin, Z. (2000). Special Protection for the Famous Trademark: Several Comments [J]. TRIBUNE OF POLITICAL SCIENCE AND LAW, 2.
Shi, J. (2014). Renmin Chinese law review: Selected papers of the jurist. Volume 2.
Wee, S. Aug 22, 2017. New Balance Wins $1.5 Million in Landmark China Trademark. New York Times. https://www.nytimes.com › 2017/08/22 › business › china-new-balance- trading.
Weinstein, V., & Fernandez, D. (2004). Recent developments in China’s intellectual property laws. Chinese journal of international law, 3(1), 227-240.
World Intellectual Property Organization, (2017). Making a Mark: An Introduction to Trademarks for Small and Medium-Sized Enterprises.
Yang, D., & Clarke, P. (2005). Globalization and intellectual property in China. Technovation, 25(5), 545-555.
Zhe, S. (2012). Analysis of Well-Known Trademark Paradox [J]. Law Science Magazine, 6.
ZHENG, R. K., & REN, Y. X. (2006). Exploration of the Confusion Theory and Likelihood of Association Theory for the Protection of Well-known Trademarks [J]. Journal of University of Science and Technology Beijing (Social Sciences Edition), 2.
Websited visited on 11 December 2019