Tuesday, April 11, 2006

Silk Market Appeal Case: Joint Liability or State Responsibility

You could argue the Silk Market Ruling of December 19th, by the Beijing No 2 Intermediate People's Court ruling is one of the most important jurisprudence. It could be a precedent of the landlord's liability in case of trade mark infringing tenants.

For an article about this Emma Barraclough of MIP interviewed among others Paul Ranjard, Chairman IP Working Group EU Chamber of Commerce in China, who doubts if this ruling will get a following: "Obviously the Court got the principles right when it accepted [the landlord] as jointly liable. The appeal might be tricky, though, for lack of very strong legal basis. It will be necessary to define exactly under what circumstances a landlord would be considered jointly liable."

The landlord appealed the ruling to the Beijing Higher People's Court on January 4 and it is expected the case to be decided upon before May. Zhang Weifeng, Ocean Law Firm, that advised the landlord said that law enforcement duties should be performed by the government instead of the private sector

Joe Simone of Baker & McKenzie who advised luxury goods companies Burberry, Chanel, Gucci, Louis Vuitton and Prada, and lobbyist in the anti-piracy Quality Brands Protection Committee (QBPC), thinks the ruling is going to stimulate the Chinese authorities to prosectute landlords who were aiding and abetting trade mark infringement by their tenants. Simone contents that the definition of knowledge is somewhat stretched, and that evidence of intent is needed.

Emma Barraclough wrote: "The brand owners sued Xiushui Haosen under the Trade Mark Law, which said that by knowingly renting space to counterfeiters, landlords are "providing convenient conditions", effectively aiding and abetting the offence."
Read MIP's article here.

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