TGIF

Super girls, American Idol knockoff with Chinese characteristics?

Baidu, China's most popular search engine, has made a list of the hottest words of 2005. And they more or less have to do with intellectual property.

1. MP3; Baidu had to remove illegally uploaded mp3's from it's site. See more here.
2. Super Girls; immensely popular song contest tv show which allegedly is a knockoff of American Idols, broadcasted by Hunan Statellite TV
3. Fairy Tale; a Chinese lovesong
4. QQ; Tencent the company of the QQ instant message software has a legal conflict with Chery Automobile Co. ltd. that named it's new car QQ. See more here.
5. Li Yuchun; is the winner of Super Girls

Is the format of Super Girls, which was a runaway success with 400 million viewers, a knockoff of American Idol as the NYT's David Barboza wrote (see here) or is it inspired by this format as Frank Dai of Global Voices wrote (see here)? Or can you call it American Idol in Chinese, as the Hollywood Reporter wrote (see here).

Formats (detailled programme scripts) are works protected by copyright, as long as they have some form of originality. Ideas, such as that of a song contest, are not protected. Only the elaborate form in which the ideas have been moulded can be protected. This can be hard to proof.

China is a member of Union of the Berne Convention. Because of the territoriality principle of article 5 (2) and (3) of the Berne Convention, a maker of a work whose country of origin is another member of the Union, as would be the case if Fox tv, the right holder of American Idol, would sue Hunan TV, would be protected by the bundle of national laws of that country, in this case Copyright Law of the PRC.

March 2005 a regulation was issued concerning the establishment of copyright collective management organisations (CCMO) in China, see here. One of these called the Music Copyrights Society of China sued China International Culture& Arts Company(CICAC) that sponsored the Super Girls concerts, see here

What about the Chinese characteristics of Super Girls? It's not typical Chinese at all. Watch NYT multimedia presentation nattated by David Barazon here.


previous TGIF next

UPDATE: September 21, 2011: SARFT "Super Girl is corrupting China's youth".

continue reading ...

Artists enforce their infringed copyright by online activism

Artists from all over the world saw their copyrighted works infringed by Beijing based arch-world.cn. This company captured without permission digital copies of copyrighted paintings of more than 2,800 artists in order to duplicate the works on demand.
Thanks to an initiative of The Painter's Keys, an online community of artists, the digital copies of the works of living artist were removed from the site. This only happened after a Painter's Key newsletter that goes to 135.000 artists to protest by email to the Chinese embassies in the US, UK, Australia and Canada. See here the Painter's Key protest site: International Theft Arch-world information. The artists are concerned about the copyrighted works of right holders that are still on the arch-world.cn site. They demand to know how many copies of their works were made and want a reasonable compensation.

Miro Cernetig of the Vancouver Sun wrote that the Canadian Embassy in Beijing sent a diplomatic letter of protest to the Chinese Ministry of Commerce, Trading and Law Department. It is not clear if the Chinese government intervened. Read more here.

China is since 1992 a signatory of the Berne Convention, see here. The Copyright Law of the PRC is compatible with this treaty.

Paintings are works (article 3 (4) that include fine arts; the term copyright includes the right of reproduction, that is, the right to produce one or more copies of a work by printing, photocopying, lithographing, making a sound recording or video recording, duplicating a recording, or duplicating a photographic work or by any other means (article 10 (5).
Except where otherwise provided in this law, the copyright in a work shall belong to its author. The author of a work is the citizen who has created the work (article 11).
Where the copyright in a work belongs to a citizen, the right of exploitation and the rights under Article 10, paragraphs (5) to (17), of this Law in respect of the work shall, after his death, during the term of protection provided for in this Law, be transferred in accordance with the provisions of the Inheritance Law (article 19).
The term of the copyright is lifetime plus fifty years (article 21).

continue reading ...

What is worse than no sex, no religion and no portrayal of criminal behaviour for US filmmakers in China?

With a shrinking home market Hollywood is looking at foreign markets such as China to produce and sell their movies. China has great potential, but there are some problems too.

Film producers that want to show their movie in China should take into account the demands of the Chinese governement about the content. Bruce Wallace of the LA Times wrote about this:

"No sex. No religion. Nothing to do with the occult. Nothing that jeopardizes public morality or portrays criminal behavior. But perhaps the most crippling obstacle remains China's rampant piracy. The frenetic trade in pirated DVDs operates openly on Shanghai street corners, where Hollywood's blockbusters and prime-time TV shows are sold from rickety stalls and suitcases, all for less than a dollar. It leaves China with a market — or at least a legitimate market — about the size of Peru. What studio executive is going to spend time and energy banging his head against the Chinese politicians and bureaucrats for a market the size of Peru?

Read more here.

continue reading ...

China's anti-monopoly law targeted at foreign firms?

"While multinationals are reluctant to publicly discuss the proposed law, in private many executives say previous drafts left too much leeway for taking away intellectual property set tests for mergers and acquisitions that were too stringent."

Read more here.

continue reading ...

Some revealing statististics from SIPO

Applications 2004

110,000 patent applications.

588,000 trademark applications

Applications 2005
130,000 invention patents applications (50 % from multinationals headquartered in developed countries; patent applications from American enterprises will exceed 20,000)

Patent applications of companies from developed countries
93 % in electronic transmission
91 % of mobile telecommunications
90% audio and visual technologies
85 % semiconductors
69 % pharmaceuticals
60 % computing technologies

Percentage of Inventions

86 % from foreign companies are for inventions

18 % of patent applications from China are for inventions (see here)
0.03 % of Chinese enterprises own key technologies with intellectual property

About 99 % of Chinese enterprises have never applied for patents
60 % do not have their own trademarks.
China is ranked third in foreign trade, patented high technologies contribute only 2 percent of total foreign trade

Source Shanghai Daily

continue reading ...

Third round of Patent Law revisions: discourage junk patents

SIPO is preparing the third round of revisions of the Patent Law of the PRC. The revisions might include improvement of the current examination mechanism for utility model and design patent applications. SIPO also advised local governments to channel more incentives to invention patents rather than utility models and designs, because the latter two lack inventiveness (see below article 22 of the Patent Law of the PRC).

In China there are three different patentable objects of law:
Article 2 of the Patent Law of the PRC: For the purpose of this Law, "inventions" refer to inventions, utility models and designs.

SIPO does not carry out detailed examinations on applications for utility model and design patents in order to save costs. This could lead to junk patents, according to Tian Lipu commissioner of the State Intellectual Property Office.

Local governement incentives encourage patent applications based on existing technologies and designs. However, according to Tian utility model and design patents could improve intellectual property awareness.

Read here.

Article 22 of the Patent Law of the PRC:
Any invention or utility model for which a patent right may be granted must possess the characteristics of novelty, inventiveness and usefulness.

Novelty means that, before the filing date of the application, no identical invention or utility model has been publicly disclosed in domestic or foreign publications or has been publicly used or made known to the public by any other means in the country, nor has any other person previously filed with the Patent Office an application describing an identical invention or utility model that was recorded in patent application documents published after the said date of filing.

Inventiveness means that, compared with the technology existing before the filing date of the application, the invention has prominent and substantive distinguishing features and represents a marked improvement, or the utility model possesses substantive distinguishing features and represents an improvement.

Usefulness means that the invention or utility model can be made or used and can produce positive results.

continue reading ...

China is pushing for it's own patented 3G standard

"Maturity and intellectual property (IP) negotiations are considered key factors in China's 3G development. Most profits in China's telecom market flow into the overseas giants due to China's lack of patents in the current technology, which is considered the crucial reason for Beijing to push TD-SCDMA."

Read more here.

continue reading ...

Dutch Holthuis International Lawyers is setting up shop in Shanghai

Holthuis International Lawyers (HIL) obtained approval from the Chinese Ministry of Justice to open an office in Shanghai. The firm is the only one in the Netherlands that has been awarded such approval. However, HIL will continue its cooperation with its China partner firm, Shanghai law firm Fangda Partners, PRC Lawyers.

Read more here.

continue reading ...

The year in IP

ChinaDaily recently published the article titled: 'The IPR Year'.

This article gives an overview of some of the (alleged) IP infringement cases in China:

Intel vs. Shenzhen Dongjin
Hisense Group vs. Bosch-Siemens
Wuxi Multimedia vs 3C Group (Sony, Philips, Pioneer)
Unilin Beheer B.V. of the Netherlands, Flooring Industries Ltd of Ireland, and US firm Unilin Flooring vs. 30 companies (16 of which are from china).
Universal, EMI, Warner, Sony BMG and their local subsidiaries, Cinepoly, Go East and Gold Label vs. Baidu
GM Daewoo auto technology company (GMDAT) and GM vs. Chery (Shanghai Automotive Industry Corp. and Wuling Motor Corp)
Tencent vs. Chery

Read more here.

continue reading ...

IP pirates charge pay-per-view in Chifeng

A channel run by a state-owned coal company in the city of Chifeng (Inner-Mongolia) with an audience of 30,000 viewers sliced Chen Kaige's new movie The Promise into a 16 episode series, selling each episode for 2 yuan (0,25 dollar) without any authorisation of the right holder.

Read here.

continue reading ...

Chinese piracy catalyst for change business model online games

China's 58o million dollar online games market is changing its business model, because of rampant intellectual property infringement. Instead of collecting a monthly subscribtion fee for massive multi-player games, they are going to focus on selling in-game items.

"DFC Intelligence’s Alexis Madrigal said an increasing number of MMOs in China will become free to gamers next year, while the companies rely on sales of in-game items to bring in profits."

"Chinese game companies are some of the first to get wise to the switch in sales. It’s also smart to run a service off of in-game sales, when piracy of games in China is so prevalent. Chinese game companies find it hard to make money off of the pure-play of games because pirates are always one step ahead."

Read more here.

continue reading ...

SIPO approves Bamboo Flavone patent

The NASDAQ-listed Tramford Internationa Inc. is a Hong Kong based technology company with their main portfolio business based in the People's Republic of China.

Future Solution' s Development Inc. , the newly acquired subsidiary of the Tramford has developed the bamboo flavone application in anti-prostate disease drug which has been approved by China's State Intellectual Property Organisation.

Read here.

continue reading ...

IP protection crucial for Chinese car industry and for the environment

If you think about China and cars it is easy to see doom scenario's. If every Chinese wants a car that surely would result in environmental disaster. But according to the Xinhua article, China's car producers have realised that they cannot beat producers of cars with internal combustion engines. So now their strategy is electrical cars etc. To shield their technology intellectual property becomes of critical importance to the success of China's car producers.

In Xinhua it said:
"Electrically-operated cars might change the whole picture, which is China's hope to catch up with the world's advanced economies. China shipped 106 electric cars to the United States by December. Lagging far behind from motor vehicles powered by internal combustion engines, China is almost on a par with the world's advanced nations in developing electrically-powered cars, which include battery-powered autos and fuel cell autos.
"Independent development, the possession of intellectual property and technological innovation, and mass production will be crucial for Chinese automobile makers to make breakthroughs," Han (Yuan a manufacturing engineer) said. "Considering energy and the environment," he said, "electric cars are the best solution."

Read article here.

When will companies such as Geely, Chery, Chang'an, Hafei, and Great Wall start sueing American, European and Japanese companies for alleged IP infringements?


The Happy Messenger
In the ShanghaiDaily I found an article about Qingyuan Electric Vehicle Co Ltd of Tianjin. This is a good example of a producer and owner of all intellectual property rights of multiple purpose electrical cars, which seems to be the child of the 863 programme initiated by the late Deng Xiaoping and followed-up by three successive 5-year plans. Now there is a rise of sales in the US of this electrical car. So the long-term strategy is finally bearing fruit. The name of the car is suitable indeed: the Happy Messenger.

Read here.

continue reading ...

TGIF

Colquba versus Colgate

Joel Martinsen of Danwei (means 'unit' in Mandarin) wrote a funny piece about Colquba, a knockoff of Colgate. Of course not funny at all for Colgate. And besides there can be serious health problems too.

"The "have teeth campaign" is certainly commendable, but I'm hesitant to try the stuff out just in case I'm one of the rare cases where the "have teeth" power of Colquba fails."

Read here.

What is trademark holder Colgate-Palmolive doing against it?

previous TGIF next

continue reading ...

Merged Burns & Levinson and Perkins plans presence in Shanghai

Burns & Levinson will merge with Perkins to boost its intellectual property practise.
"The new firm plans to open a part-time office in Shanghai early next year to bolster its work in China"

Read more here.

continue reading ...

'Significant victory' of Burberry, Chanel, Gucci, Louis Vuitton and Prada against Beijing Silk Alley shopping mall

On December 20th, Beijing No. 2 Intermediate Court ruled that Silk Alley Haosen Co., the management firm of the (in)famous shopping mall of Beijing for knockoff products, had not acted in time to stop the sales of bogus merchandise by five vendors, said the plaintiffs' lawyer Wang Yadong of Lovells Beijing. The court ordered Haosen and five Silk Alley vendors to pay 200,000 yuan ($24,764) in damages

The Beijing News said the judge called his ruling China's first against the operator of a shopping center.

"This is a significant victory," said Douglas Clark, a Shanghai-based intellectual property rights attorney and partner in the Lovells business law firm. "Generally, landlords have been protected by doctrines of law that do not make them responsible for the acts of their tenants."

"The importance of this case is that a landlord in a notorious counterfeiting black spot has been found liable for the sale of counterfeits in a tenant's premises," Clark said. "This should send a message to all landlords in China that they cannot blindly lease their premises to tenants without taking responsibility for their actions."

The article ends ominously: "Fake goods are still being sold at Silk Alley under the plaintiffs' names, Wang said."

Read more here

continue reading ...

Christmas horror story: Fiber Optic Designs in China

Patent lawyer Lawrence Ebert of IPBiz blogged about Fiber Optic Designs' IP adventure in China.

"To show prior invention, Fiber Optics submitted a copy of the Trenton Times from December 2001. The copy had to be notarized by a notary public. In turn, a state judge had to affirm the status of the notary. In turn, a state agency had to affirm the status of the state judge. In turn, the US State Department had to affirm the status of the state agency. Then, the State Department had to submit all of the above the Chinese embassy. This process cost $50,000."

Read more here and here.

continue reading ...

2.47 million trademark registrations in China

See article here.


China recognised the 'recognition of foreign well-known marks' since 2004 (See article 6bis of the Paris Convention). Finally, China has been a signatory of the Paris Convention and this treaty went into force in China already on March 19, 1985.
The Paris Convention started with the recognition of foreign well-known marks, to prevent that these well known marks had to be registered in every country in order to be protected. Without these well-known marks a company in a country where let's say Coca-Cola did not register could start to use Coca-Cola as a trademark.

Another sign of progress in the field of trademark could be that in June 2005, the Trademark Administration circulated draft amendments to its Regulation on the timely Transfer of Suspected Criminal Cases in the Enforcement of Administrative Law, which must facilitate effective trademark enforcement and protection. Source: USTR 2005 report.

continue reading ...

Tennis Master Cup Shanghai is using RFID against counterfeit tickets

Besides the law, there is technology to fight against counterfeiting. Radio Frequency Identification tags are brought into action to prevent false tickets at the Tennis Master Cup in Shanghai. However, necessity being the mother of invention, a new problem was that when people entered with genuine tickets, some of them tried to smuggle them out again to reuse them. But this could easily be solved by the prerequisite of visitors to hand in their tickets.
Read Laurie Sullivan's article here.

continue reading ...

China's copyright protectecton of online works

After a public hearing the National Copyright Administration (NCA) of China and the Ministry of Information Industry announced in May 2005 that the Administrative Measures on Internet Copyright Protection will be implemented. This means in short that ISP's have a responsibility to remove pirated works upon receipt of a complaint from a right holder. If the ISP does not comply they face administrative penalties ranging from confiscation of illegal gains of up to 100.000 RMB (source USTR 2005 report) Professor Zheng Chengsi, member of the drafting committee of the Chinese Copyright Law and many other laws, stressed the imporance of enforcement in the online world: "If the government won't take measures to fend off Internet piracies, its efforts to fight piracy in tangible markets will fail. More dealers of pirated goods will switch to the Internet because of its lax controls," said Zheng Chengsi, director of the IPR Center of the Chinese Academy of Social Sciences."

Yan Xiaohong, deputy director of NCA said, according to this very informative article by the Internet Society of China, that the State Councel has launced a draft for Policies of Protecting Internet Information Spreading Rights that will have a stronger legal effect. IP Dragon is researching what these policies entail and why their effect is stronger.

Besides, there is the draft Regulations on the Protection of Copyright Over Information Networks that has circulated for public comment. The final version is expected to be issued in 2006. The aforementioned Regulations could be seen as a step toward the accession to the WIPO internet-related treaties to the National People's Congress by June 2006.

What internet-related treaties are we talking about? WIPO Copyrights Treaty and WIPO Performances and Phonograms Treaty, read here.

continue reading ...

Creative Commons China will be launched March 2006

March 29th–30 2006, Creative Commons China will be launched.

The Creative Commons license system is being adapted ('ported' in CC-speak) to the Chinese jurisdiction. See here (in English translation) how they are doing that.

More links about Creative Commons China here.

continue reading ...

Liu Xian, olympic champion, takes legal hurdles and wins in IP case

ChinaDaily journalist Liu Li wrote an article about Liu Xiang, China's famous Olympic 110-metre hurdles champion.

The Beijing No 1 Intermediate People's Court overruled an earlier verdict by the Beijing Haidian District People's Court and ordered Life Style, the magazine that published her pictures without her authorisation, to pay her 20,000 yuan (US$2,500) damages and publish an apology within a month.

Read the article here.

continue reading ...

TGIF

On Chinese Patchwriting (TGIF)

Chris Shei (University of Wales Swansea) wrote an interesting paper about plagiarism and the view of patchwriting by Chinese students studying in a UK higher education institution. Chinese culture emphasises a substantial period of imitating before creativity can be contemplated.

Read more here.

Below you will find an interesting fragment from Joel Bloch (Ohio State University) reviewing 'Standing in the shadow of giants: Plagiarists, authors, collaborators', from Rebecca Moore Howard in 1999.

"The issue of plagiarism among Chinese students has long been a controversial issue, both in terms of whether it is culturally bound and when and where it should be a concern. Unfortunately, Howard draws upon a number of sources that have oversimplified the issue, resulting in what I feel is a misrepresentation of how Chinese rhetoric actually view both intellectual property and plagiarism. However, patchwriting in Chinese rhetoric often involves texts that are clearly identifiable to every reader, so there is no question as to who the author is. When a Chinese writer cites Confucius, everyone knows it is Confucius. This situation is not necessarily the same as what Howard considers patchwriting in the West. Moreover, our research shows examples of how patchwriting has gotten Chinese writers into the same trouble as it does Western writers. We showed instances where Chinese writers viewed patchwriting themselves as an extremely negative form; students using patchwriting as a strategy to avoid saying anything controversial, which in certain historical periods was an extremely judicious rhetorical strategy. In these cases, the writers felt that this strategy was of little value except to avoid possible trouble."

Read more here.

previous TGIF next

continue reading ...

IP protection of traditional knowledge and folklore sought by China

Countries such as China, India and Brazil, want the WTO to set up a system to control how corporations, scientists and others in the developed world use of a nation's native plants, animals and centuries-old knowledge to make pharmaceuticals, the Wall Street Journal said.

"There is growing concern in these nations that the next blockbuster drug might be derived from a plant or animal species in their jungles through so-called "biopiracy" for which they may not get any financial benefit."

Read more here.

continue reading ...

Coca Cola sues TRAB for refusal to register Fanta bottle shape as trade mark

On 28 November 2005, Coca-Cola brought an action in the Beijing No. 1 Intermediate People's Court, asking the Court to overrule TRAB's decision. The main feature of the Fanta bottle is the design of densely-distributed prism stripes surrounding the lower part of the bottle. Coca-Cola indicated that such shape is distinctive of "Fanta" soft drinks and has come to be associated with Fanta in the mind of the public.

"Its distinctiveness has been recognised in many other countries by registration as a three-dimensional trade mark.

To prove the design's originality, Coca-Cola's agent demonstrated 10 other drink bottles at trial.
He noted that drink companies compete fiercely with each other and put a lot effort into the design of their drink bottles. TRAB responded, through its attorney, by arguing that the design of the "Fanta" soft drink bottle is basically simple and lacks uniqueness. It is difficult to distinguish the Fanta bottle from other bottles on the market. The prism stripes stressed by Coca Cola are widely-used as a means of preventing bottles from slipping. In summary, the design of the Fanta bottle is devoid of originality."

The decision of the Court is pending.

Source: Rouse & Co. International China IP Express

continue reading ...

eBay Shanghai sued for alleged Trademark Infringements

Danish company Aktieselskabet AF sued eBay Shanghai because it operated the servers of sites where products were offered that allegedly infringed trade marks of the plaintiff. Beijing no. 2 Intermediate People's court accepted jurisdiction, but defendant eBay challenged this on the ground that their servers were located in Shanghai.

"The trade marks in question were licensed by the Plaintiff's subsidiary company, Bestseller Clothing (Tianjin) Ltd (Bestseller). At the beginning of 2004, Bestseller discovered a lot of female apparel bearing the trade marks "ONLY" and "VEROMODA", and male apparel bearing the trade mark "JACK&JONES", being sold on www.ebay.com.cn and www.eachnet.com without authorisation.

The infringing goods were being sold at less than half the price of genuine products. It also found 73 ebay shops with names such as "ONLY Shop", "only for ONLY products" and "only for VEROMODA" on the Defendants' websites.The Plaintiff argued that as the Defendants were allowing infringing products to be offered for sale on their sites in the context of such trading information, and actual sales had occurred, the Defendants had constituted trade mark infringement. The Plaintiff sought compensation of RMB 200,000 (approximately US$ 24,200).

Plaintiff's attorney, Mr Yang, said, that the Plaintiff had brought the case not for compensation, but to demonstrate to Ebay Internet Services Providing (Shanghai) Co., Ltd. and Shanghai Ebay Trading Co., Ltd (Ebay) that it should not allow infringing sales to take place on its websites. The Defendants' attorney, Mr Gao Jun, argued that the Defendants were merely providing a trading service. They did not take part in the actual business dealings, there were not, therefore, infringing.

In September, an individual was brought to Qingdao Intermediate People's Court for setting up an ebay shop named "Ku Mi Li" and selling counterfeit products on the eBay website. Although . were sued for trade mark infringement, the Court ruled that the individual had engaged in trade mark infringement, but the Ebay operators had not as they were not party to the actual business dealings."

Source: Rouse & Co. Internatonal China IP Express

continue reading ...

Karaoke parlors will be automatically charged in Guangzhou

The government of the capital of Guangdong province (Canton) Guangzhou, plans to launch a copyright protection system in karaoke parlors, according to the Guangzhou Daily.

"The system will track which songs are played in karaoke parlors and will automatically update using China's proprietary digital decoding system DRA. Karaoke parlors will be charged for each time a song is played. A charging standard has not been set, though the report said that the government is leaning towards a one Yuan fee for each time a song is played. The report said the system will complete a trial in 2006 and will help eliminate piracy at karaoke parlors by 2010."

Source: Pacific Epoch

continue reading ...

SIPO allows RegeneRx Drug Patent

RegeneRx Biopharmaceuticals, Inc. has received notification that the State Intellectual Property Office of the People's Republic of China (SIPO) has allowed its first patent application for the Company's Thymosin beta 4 (TB4), wound healing technology platform.

RegeneRx president and CEO J.J. Finkelstein: "We are very pleased to be advancing our intellectual property portfolio in this important market. China, of course, represents one of the largest and fastest growing pharmaceutical markets in the world; we look forward to receiving additional patents in China in the future and addressing a number of potential opportunities in that market."

Read here more.

continue reading ...

US Trade Respresentative Report about China's WTO compliance

December 11th, the USTR published a report about China's WTO compliance, including China's adherence to TRIPS. Pages 63 to 73 of the report cover IPR protection:

"Overal, China's efforts to bring its framework of laws, regulations and implementing rules into compliance with the TRIPS Agreement have been largely satisfactory, although some improvements, particularly in rapidly emerging areas such as Internet copyright protection, are still needed.

Enforcement of these measures, however, remained largely ineffective in 2005 giving rise to increasingly strong concerns amons US industry.

...many US companies, particularly in the media and entertainment, see their copied products migrate into mainland markets even while the legitimate products remains barred by regulation.

Sustained involvement by China's learders is critical if China is to deliver on the commitments that it made at the April 2005 and July 2005 JCCT meetings, including China's core commitment to significantly reduce IPR infringement levels across the country."

Read the report here.

continue reading ...

IP Strategy for China: Wait-and-See?

Todd Mayover has an interesting site: IP Counsel blog. He blogged about a discussion of Lindsay Esler and Annie Tsoi of Law firm Deacons about intellectual property in China. Gives a good overview of the situation.

Read more here.

continue reading ...

WTO: waiting for dispute settlement between US, Japan, Switzerland and China

What is happening at the WTO? Yesterday to my knowledge nothing IP relevant happened at the WTO. If I am wrong please inform me ipdragon (at) gmail.com

However, I found a nice summary at Yale Global where Dr. Susan Ariel Aaronson and Jamie M. Zimmerman summarised what we are waiting for:

"But now both Chinese and foreign intellectual property owners can benefit from the WTO’s dispute settlement system. This month the United States, Japanese, and Swiss governments filed a formal request with the WTO for information from China on the country’s IPR enforcement efforts. Based on these findings, the US and its allies may challenge Chinese enforcement of IPR under binding WTO dispute settlement mechanisms. If they are successful in that dispute, China would have to change its ways or risk retaliation as well as lower levels of foreign investment."

Read more here.

continue reading ...

MPAA urges China to stop piracy before 2008

During an industry convention in Beijing, Motion Picture Assn. of America chairman and CEO Dan Glickman said:

"In 2008, China will be at the center of the world stage, hosting the 29th Olympic Games. It will be a terrific moment of pride for the country," he said according to the speech. "And so I would like to plant this challenge: by 2008, to have more legal than illegal DVDs sold in China, to have more American movies in Chinese theaters and to have more Chinese movies in American theaters."

Glickman explained why you cannot find counterfeited goods related to the 2008 Olympics in Beijing:

"It is virtually impossible to find counterfeit Olympics goods in China. Why? As one of the Chinese officials said, it is because fakes dilute the value of the logo, the intellectual property upon which the Chinese have invested to finance the games," he said. "The value of that intellectual property is worth protecting for all film producers, everywhere. It's the same value that exists for that independent Chinese filmmaker who was in my office and for all the other filmmakers from around Asia and the world whose collective creative spirit is such a commodity."

Read more here.

The tone of voice of Glickman has become much friendlier. This May is supposed to have said:

"We said [to the Chinese] the U.S. Congress...is becoming increasingly agitated about piracy. ... We said they need to do something or there would be trade-related problems. ...There's consequences if they don't get it down."
Read more here.

Or here about MPAA getting tough with China.

continue reading ...

Kongzhong infringed Bird Man's copyright by using their songs as CRBT

What do you do if you are a Chinese wireless service provider such as Kongzhong in cut throat competition? You try to add more value to your service such as an upgraded answering tone that used to be tuu...., into the so called color ring back tone (CRBT). This is a bit of a misnomer, because songs, personalized monologues, jokes can replace the answering tone. Read more about this phenomenon, the latest craze and Asian trend, that is called in Chinese Cai Ling here.

Now the Nasdaq listed Kongzhong took a few nice songs such as 'Two Butterflies, Bei Shui Quing Ge and Chui Yanjing as color ring back tone. The people of music company Bird Man were surprised when they heard their music as Cai Ling without having authorised Kongzhong and sued them.

Beijing Haidian District People's Court ruled that Kongzhong infringed Bird Man's copyright by providing CRBT for the songs. Kongzhong was fined 320,000 Yuan.

Source: Pacific Epoch

continue reading ...

WTO Hong Kong Ministerial Conference starts tomorrow

The IP summit of the year is about to start. The highest decision-making body of the WTO is meeting tomorrow in Hong Kong to talk about free trade and intellectual property. There will be a TRIPS review.

"Non-violation complaints are possible for goods and services (under GATT for goods and market-opening commitments in services). However, for the time being, members have agreed not to use them under the TRIPS Agreement. Under Article 64.2 this “moratorium” (i.e. the agreement not to use TRIPS non-violation cases) was to last for the first five years of the WTO (i.e. 1995–99). It has been extended since then.

At the same time, the TRIPS Council has discussed whether non-violation complaints should be allowed in intellectual property, and if so, to what extent and how (“scope and modalities”) they could be brought to the WTO’s dispute settlement procedures.

At least two countries (the US and Switzerland) say non-violation cases should be allowed in order to discourage members from engaging in “creative legislative activity” that would allow them to get around their TRIPS commitments. Most would like to see the moratorium continued or made permanent. Some have suggested additional safeguards."

This is relevant in the case of IP enforcement in China.

Read more here and here

continue reading ...

Impact of WTO: specialized IPR management departments

The impact of WTO rules and international practices is felt strongly in enterprises' internal management, wrote Liu Weiling for the DailyChina.

"Intellectual property rights (IPR), for example, was a strange concept for many domestic companies several years ago. But the past four years have witnessed a growing number of Chinese firms, both State-owned and privately-owned, setting up specialized IPR management departments."

continue reading ...

Shaolin monks fought copyright violations already in 1997

Hong Kong Standard's Ni Ching-Ching wrote:

"When some people see us doing things like brand protection and movies, they think there's something inappropriate," Shi said. "But what we are doing is in keeping with tradition. Monks from every dynasty had to adapt to the changes of society. We are monks. But we are also citizens."

Read more here

"To further defend its reputation and interests, the temple has set up a firm, the Henan Shaolin Temple Industrial Development Ltd. Co., to protect and administer the intangible assets of Shaolin Temple, to safeguard the legitimate rights of the temple and to investigate cases of unauthorized use of the temple's name in commercial activities, said (Shi) Yongxin," abbot of the temple.

Read the article 'Shaolin Monks that Fight to Protect the Temple's Reputation' by law firm Lehman, Lee & Xu here.

continue reading ...

BSA/IDC Study: China has Most to Gain from Reducing Piracy

Read here the BSA/IDC study. It includes a 32 page whitepaper. Here is the link to a one-page summary for China.


The study was well picked up by the media: MercuryNews, InternetNews wrote articles about it.

continue reading ...

TGIF

Donald Clark, of the Chinese Law Professor Blog, posted about condoms that are marketed under the brandnames Clinton and Monica, without consulting Clinton or Monica. Read more here.

previous TGIF next

continue reading ...

Busheng versus Baidu

Last month Yu, Bo of About Intellectual Property made a brief summary of the Chinese search engine case based on news reports about the Haidian District Court of Beijing, not from the court's original decision. Great work. Read here.

continue reading ...

Portrait: "Baidu is strong on censoring, weak on IP protection"

The Guardian's Jonathan Watts wrote an interesting article about China's biggest search engine and its ambitious CEO Robin Li.

"Critics say these are minor adjustments to a design and business model that is largely a copy of Google. The reason for Baidu's success, they argue, is that it collaborates with the communist authorities on censoring sensitive political information more than its rivals do and is less stringent in blocking access to sites that offer pirate film and music downloads. Look for the name of dissident writer Lu Xiaobo or references to the Tiananmen Square massacre on Baidu and no information appears. But search for Radiohead or Britney Spears and Baidu offers a specific MP3 channel that directs you towards pirate downloads of every song the band and singer have ever made. The record company EMI successfully sued Baidu in Beijing this week over this MP3 service - which accounts for 20% of Baidu's traffic - but Li said his company would appeal."

Read more here.

continue reading ...

Hong Kong and Macao China promise to use IPR amendment to access cheaper drugs only in case of emergency

"The approval, by WTO headquarters in Geneva Tuesday for effecting changes to the intellectual property agreement, makes permanent a decision on patents and public health originally adopted in 2003. The latest decision comes a week after WTO members agreed to extend the transition period for least developed countries, allowing them time until July 1, 2013, to provide protection for trademarks, copyright, patents and other IPR issues under the agreement. Least developed countries had already been given time until 2016 to protect pharmaceutical patents.

The deadline for least-developed countries to protect pharmaceutical patents was revised in June 2002. This was followed by the waiver in August 2003, which itself called for the eventual amendment.

The decision directly transforms the Aug 30, 2003, 'waiver' into a permanent amendment of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)," the statement said.

Article 31(f) of the TRIPS Agreement says that production under compulsory licensing must be predominantly for the domestic market.

Hong Kong, Israel, Korea, Kuwait, Macao China, Mexico, Qatar, Singapore, Chinese Taipei, Turkey and United Arab Emirates have separately announced that if they use the amendment of the IPR system as importers it would only be for emergencies or extremely urgent situations."

Read more here.

continue reading ...

US actions considered because of insufficient IPR enforcement in China and Russia

Assistant U.S. Trade Representative (USTR) for Intellectual Property Victoria Espinel said December 7 that the trade office is collecting from U.S. industries information to see whether insufficient enforcement of IPR in China would justify a request for WTO dispute settlement with China. The United States, joined by Japan and Switzerland, also has filed a formal request with the WTO for information from China on the country’s IPR enforcement efforts. The latter action was necessary, she said, because “China does not share the same level of transparency regarding enforcement actions as the United States.”

The withdrawal of trade benefits are considered for Rusia but not for China.

Read more here.

continue reading ...

"China from an economy based on manufacturing to one based on intellectual property"

Alfred Chuang, CEO of BEA, producer of entreprise infrastructure software, is quoted by Daryl K. Taft in Extreme Nano that he expects to see China take a leading role in IT as it has in manufacturing. According to Chuang China will soon be exporting high-value technology that needs IP protection instead of exporting manufactured goods alone.

Read more here.

continue reading ...

Chinese R&D gears up, IP protection follows suit

Vincent Lam wrote an article in the China Daily about the rise in Chinese IT spending and the consequences for IP in China.

""As research and development across the region gears up, we see intellectual property (IP) protection following suit. The percentage of gross domestic product spent on R&D is rising rapidly, particularly on the mainland. It is moving towards Organization for Economic Co-operation and Development levels," the survey said."

"The increasing use of IT will provide the incentive for Asian companies with multinational intent to put additional pressure on their governments to enforce IP protection and support IP creation at home, the survey said."

Read more here.

continue reading ...

Hong Kong is cracking down on counterfeited goods before summit

Willow Duttge wrote an article about Hong Kong's efforts to clean its streets of counterfeited goods before the WTO summit about free trade and IP enforcement will be held.
China's Special Economic Region with its own Rule of Law and IP law is getting ready for the global summit that takes place from December 13-18. Hong Kong Customs and Excise Department is stepping up efforts against counterfeits. The purpose is that tourists will not be bothered with vendors of pirated goods and Hong Kong's image as shopping paradise is upheld.

"A special action team of 108 people has been created to step up anti-counterfeit measures for the global summit, (customs official) Chiu said."
Is this action team window dressing for the summit?
"The team will continue until after the WTO meeting and will be reviewed afterward. If the counterfeit sales people have been suppressed, the special action team might not be needed in the future, he said."

And as usual in Hong Kong the governement launched a few patronizing anti-pirated goods infomercials that were aired on TV, starring Jacky Chan and Arnold Schartzwenegger saying about counterfeiting: "Let's terminate it."

Duttge wrote: "With one of the world's biggest factories for fakes next door, it could be hard for Hong Kong to control the flow until China does a better job clamping down."

Read more here.

continue reading ...

Pfizer, a case of IP protection impotence or growing pains?

China's Patent law has come a long way. It was build from scratch and modernised very rapidly. It was for example only last year that the State Intellectual Property Office (SIPO) started accepting electronic patent applications.

In 1994 Pfizer applied for a patent for Viagra and after a seven-year review period the patent was issued. During that period no questions were raised about if Pfizer had provided all necessary particualars in its patent description to meet Chinese regulation.

According to the Hong Kong Standard the Pfizer case is "a litmus test of China's commitment to international standards of intellectual property rights."In June 2004 the Patent Re-examination Board (PRB) invalidated Pfizer's Viagra patent.

Invalidity was found on the basis that the patent did not conform with article 26 (3) of the 2001 Patent Law, which provides:

The specification shall describe the invention or utility model in a manner sufficiently clear and complete that a person skilled in the relevant field of technology can accurately produce it; where necessary, drawings shall be appended. The abstract shall describe briefly the technical essentials of the invention or utility model. The patent claim shall, on the basis of the specification, state the scope of the patent protection requested.

The Hong Kong Standard said: "the ruling followed a September 2001 challenge by 13 firms, including Hongtaomao Pharmaceutical and Lianxiang Pharmaceutical, arguing the patent should be nullified because it failed to fulfil the novelty requirement under the patent law." The Beijing No. 1 Intermediate People's Court heard the case in March 2005 and everybody is waiting for the result. Read more here

"Pfizer has appealed on the grounds that SIPO applied higher standards in evaluating its specifications than those it complied with to receive the original patent." Read the Hong Kong Standard article here. Or, as George Evans, a Pfizer lawyer, put it on PBS's Newshour: "They have moved the goal posts.

"Lawfirm Freshfields Bruckhaus Deringer is using the Pfizer case as an illustration that IP litigation in China can yield unpredictable results on page 11 of an interesting article about pratical tips how to improve your chances of succes in protecting your patents in China, read more here.

In PBS Newshour online you can see a reportage on the Pfizer case. This pharmaceutical giant has hired tough talking John Theriault, an ex-CIA agent: "We look at China the same way the DEA might look at Colombia, as a source country for illicit drugs." Watch PBS Newshour's program 'Intellectual Piracy in China' as streaming video here.

continue reading ...

Portal Sina infringed copyright of singer He Yong

Beijing Haidian District People's Court on Tuesday found internet portal Sina guilty of copyright infringement. It has broadcasted the concert of August 2005 named He Lan Shan Rock Music Festival of He Yong, a singer reports the Beijing Times.

Sina claimed that it was the music festival's Internet partner and so had the right to broadcast the festival. Sina was fined 10,000 Yuan and must apologize to He.
I found this on Pacific Epoch, an interesting site with short concise news items.

continue reading ...

IP Express of Rouse & Co. International nr. 268 is online

Lawfirm Rouse & Co. International has an excellent newsletter about IP called China IP Express. It has already published number 268 and an archive dating back to 1999. See here.

In it you can read about a landmark litigation relating to registrability of colour-combination trade mark accepted by Beijing No.1 Intermediate Court.
A bit strange is that the applicant, "a famous company from Sweden" and "an internationally well-known manufacturer and distributor of saw blades" which registered the colour-combination bright orange and blue as a trademark stays anonymous throughout the article.

The other article is about the settlement between General Motors and Chery in their IP disputes that focusedon: "1.GM considered that Chery's mini car "QQ" copied its "Matiz" and "Spark" car, and Chery even used a camouflaged "Matiz" car to pass auto tests to acquire authorization from the government over production and sales of "QQ" car.
2. Chery's "Chery" name is to much like GM's "Chevrolet" or "Chevy", which has been GM's top selling brand for eight decades."

Read about Chery's new IP dispute with Tencent about QQ here.

Read China IP Express here.

continue reading ...

Thailand sees Hong Kong, Singapore and China as examples in IP

'Putting pirates behind bars is the best deterrent' is the title of an article by Achara Ashayagachat in the Bangkok Times.

Beside praising Hong Kong and Singapore's approach of criminal sanctions to IP infringements the article cites law firm Franck Fougere, Vidon & Partners, that is operating in Thailand and China, about the source of origin of all the fake products seized in the EU: China remains the leading source with 30%, Thailand ranked second with 20% followed with Hong Kong (8%), Turkey (7%), US (4%) and Malaysia (3%).

According to this firm Thailand could learn from China's efforts to adopt international IP conventions and promoting public awareness, although Thailand had provided training to Chinese judges

Read more here.

continue reading ...

Hennessy wins high profile trademark case

Shanghai No. 2 Intermediate People's Court ruled that wines marketed by Xiang Mu Tong Trading and bottled by Xiamen Golden Huanya Food were too similar to the tradename Hennessy, registered in 1990 in China.
They had been produced under the names Hanlissy or Henglishi in Chinese that sound too similar.

Read the BBC article here and Yahoo! News article here.

continue reading ...

Thank God it's Friday (TGIF)

Meaning of copyright in China: the right to copy

Confucius is reported to have stated after completing a book: "I have finally finished my greatest work and I am proud to say that not a single idea in it is mine."
Source: Lawrence Liang's Guide to Open Content Liceneses v1.2.

Of course it is not said that Confucius, if he would lived today, would have infringed any copyrights, because he's talking about ideas only. Those are not protected by any copyright as long as the form is not derived from other works.

TGIF next

continue reading ...

Bleak future for China's economy? IP problems will certainly not help

Newsweek's George Wehrfritz has second thoughts about the halelujah stories on the Chinese economy. Overcapacity will be a key problem. GDP could nosedive. From 9,4 percent to 5 percent next year to 3 percent in 2007, according to Jim Walker, chief economist for investment bank CLSA.

And the article includes the mantra about IP in China:

"high-value-added technology companies are increasingly frustrated with intellectual-property theft and China's weak legal system."

Important article. Too bad Wehrfritz didn't elaborate about the role IP plays in this gloomy picture. Read more here.

continue reading ...

Chinese Chery Automobile has new IP conflict

After settling their dispute over an IP infringement with US General Motors out of court, Chery Automobile Co. Ltd. finds itself in a new legal fight with Tencent, China's biggest instant message service operator over the use of the name QQ.

"Tencent QQ is China's first instant messenger, launched and registered by Tencent in 1999. So far it has had more than 400 million users.
Chery also used QQ to name one of its economic cars launched in 2003; it applied to the Trademark Bureau of the State Administration for Industry and Commerce for the registration of the trademark in 2003."

"According to the Shenzhen Economic News, Chery said Tencent did not register QQ as a trademark for use in the auto industry."



Chery Automobile argues that QQ is not a highly-identified trademark but merely two letters. Not very confincing to my opinion coming from a a representative of a branch where many brands use even trademarks that consist of numbers for their models such as 4 (Renault)307 (Peugeot), 500 SEC (Mercedes).

"Representatives from Chery came to Shenzhen to negotiate with Tencent in 2003 but they failed to reach an agreement over the payment required by Tencent."

Read more here.

continue reading ...

Guangdong Meiko Music and Video Co. Ltd. is sueing 50 alleged piracy companies

"We have filed altogether some 1,000 lawsuits on the Chinese mainland over piracy and won most of them," said Zhong Yigang, the lawyer for Guangdong Meika. "In addition to getting consumers to pay attention to protection of intellectual property rights and buy copyrighted things, we also want to cover part of our losses in this way."

Lu Weimin, chief justice of the IPR division at the No. 2 court, said that IPR cases are an increasing trend in recent years. But Liu Chunquan, an IP lawyer, said:

"Some small company owners will just shut down the business because it is cheaper to open a new company than paying the compensation," said Liu Chunquan, a lawyer who specializes in intellectual property."

Read more here.

continue reading ...

"Maintain Intellectual Property"

Photo: Quirine van Voorst.

The road to hell is paved with good intentions: Picture was shot at the Shang Yang market where you, sweet irony, can buy all kinds of fakes.

continue reading ...