Bitter Taste Avoided: South Korean Zhenjiang Vinegar and Costa Rican Confucius Institute Trademarks Rejected

The State Administration for Industry and Commerce (SAIC) is vigorously protecting the trademarks of well-known Chinese companies.

In October 2010 there was an effort to register the trademark Zhenjiang Vinegar in South Korea. Zhenjiang 镇江 is a prefecture-level city located in Jiangsu province. Vinegar producers in that region use the name Zhenjiang. Wang Xin wrote in the China Daily:

-"The case began in June 2010 when the local association heard from a foreign client that a South Korean company had filed an application for the Zhenjiang Vinegar trademark in both Chinese and Korean."

-"The Korean trademark administration accepted the application and published a notice in April asking for objections the notice expired on June 23, just wees after the Chinese association became aware of the filing."

-"Just a day before the expiry date, the association filed an objection with the South Korean administration." This objection was accepted. Read Wang's article here.

In November 2010 they tried to register the Confucius Institute in Costa Rica. Read more about the Confucius Institutes, who are promoting the Chinese culture and language around the world, here.

Read Wang Huazhong's China Daily article about both cases here.

Turn of the Screw For E-Commerce Platforms: Circular on Regulating Sales Promotion of Online Shopping First Step

Take notice Taobao, Alibaba and all other Chinese e-commerce sites. January 5, 2011, the Ministry of Commerce (MOFCOM) promulgated a Circular on Regulating Sales Promotion of Online Shopping (商商贸发[2011]3号) for the commerce authorities (in all provinces, autonomous regions, municipalities directly under the central government, cities specifically designated in the state plan and the Xinjiang Production and Construction Corps). E-commerce is getting ever more important. However, it brings with it some challenges. Via online platforms counterfeit and pirated goods are sold, "replacing superior products with inferior products."

Article 5 Circular: "Strengthen the protection of intellectual property rights. In light of the special acts of cracking down aggression of intellectual property rights and manufacturing or sale of fake and shoddy goods, joint supervision shall be launched together with the industry and commerce authorities, quality inspection agencies, etc. and efforts in supervising online shopping platforms and operators shall be strengthened so as to crack down behaviors of infringing on intellectual property rights and manufacturing or selling fake and shoddy goods in promotion activities. Propaganda and education shall be strengthened to guide online shopping platforms and enterprises to perform their social responsibilities, carry out promotion in good faith and regulate business operation, and voluntarily reject illegal activities of infringing on intellectual property rights and manufacturing or selling fake and shoddy goods."

This is a sign of things to come. The e-commerce sites are made responsible what is going on on their platforms. So self-regulatory measures are stimulated. If the problems will not go away quick enough according to the authorities, binding regulation will follow. Decentralized enforcement systems, such as contributory liability is here to stay.

Your Opinion On Draft Regulations on Patent Agency Please

On March 4, 1991 the State Council promulgated the Regulations on Patent Commissioning, which became effective on April 1, 1991, see here.

In China's 2006 Action Plan of IPR Protection, it announced its plan to revise the Regulations on Patent "in order to standardize the conduct of patent agents, safeguard the normal order of the patent agency industry, and protect the legitimate rights and interests of interested parties." The old regulations were after nearly twenty years deemed out of touch with reality.

The State Council has issued the Regulations on Patent Agency (Draft Amendments for Examination), reported by SIPO and solicited opinions "of all walks of life" before September 25, 2010 March 10, 2011.

The regulations state how someone can become a patent agent, what are the educational requirements, how a patent agency should be run and what is not allowed for agents and agencies. It is clear that the self-regulatory industry group All-China Patent Agents Association plays an important role.

The Chinese version you can see here. If someone has an English version let me now.

Should There Be Trade Barriers For Chinese Companies Buying Core Global Patent Portfolios in New Technology?

Lee Caffin, IP strategist and patent attorney specialist in lifesciences at Think IP Strategy, has an interesting post on China's National Patent Development Strategy (2011-2010), read here.

After a historical overview from 2006 to 2011, Mr Caffin is posing a question that some protectionist governments might ask:

"Should countries institute patent trade barriers or limit the scope of IP rights that may be transferred to a Chinese entity to protect local industry and access to technology?"

Chances are that the late Milton Friedman might have agreed with me that this, in the end, is not a good idea. Firstly the officials representing countries are often not in the best position to assess whether a patent portfolio is core, nor whether a new technology area will be promising. Businesses that have to make a profit are necessarily better in tune with the market and one can predict that they do a better job assessing what core patent portfolios are and what new technology areas will be promising.

Secondly the party that is willing to sell the core patent portfolio is not getting the real market value if the government is raising barriers, so as a retaliatory measure against China's discriminatory indigenous innovation policies it might hurt the one retaliating, and it might lock up resources that could be brought to better use.

I know that after the financial crisis the following words may sound harsh to your ears but this author believes it is best to eliminate the barriers and let the market do its work to avoid misallocation of resources.

Huawei, China's telecommunication equipment producer, might needs to sell the patents it bought from 3Leaf, because of national security concerns, or .... is it a trade barrier to buy a core patent portfolio? President Barack Obama might grant Huawei the right to keep them. According to people who work at 3Leaf the patents form no danger for national security. But Huawei is considered by some connected to the Chinese military, which it denies. Can American companies sell anything to the Chinese military, let's say non-military grade shoe laces? Read the Financial Times article by Stephanie Kirchgaessner about it here (free but registration is needed).

US-China Economic and Security Review Commission Staff Report of January 2011 is entitled

'The National Security Implications of Investments and Products from the People's Republic of China in the Telecommunications Sector' and has a wealth of information about deals with Chinese companies such as Huawei and ZTE wanting to do investments and sell their products in the U.S. Read here.

B. Raman of Global Geopolitics and Political Economy wrote a good article focused on security issues of Huawei in India, read here.

Keep the May Calendar Free For IP events in Hong Kong and Macao

IP Dragon's friend Anselm Kamerman Sanders of Maastricht University organised this time two interesting events in Hong Kong and Macao.

The events are organised by the Institute for European Studies of Macau and Maastricht University Faculty of Law. For the Hong Kong leg it is co-organised by the Chinese University of Hong Kong.

Annual Professional IP Update, followed by the 12th Annual IEEM IP Seminar, May 21-24

The Annual Professional Update provides an overview of all relevant cases and legislative developments of the past year from all over the world. During one day you will be brought up to speed on the major important legal decisions and developments in intellectual property law and policy.

Location for Saturday 21 May: Graduate Law Center of the Chinese University of Hong Kong

The two-days Annual Intellectual Property Seminar offers a forum for IP professionals wishing to be part of a thought-provoking discussion on cutting-edge developments in intellectual propety law and policy. Distinguished practitioners, judges and academics from all over the world have contributed to this event. The papers they have presented have been published in book form by Kluwer Law International and Hart Publishing.

In 2011 the 12th Annual IP Seminar's topic will be:

Consumers, Facilitators, and Intermediaries - IP Infringers or Innocent Bystanders?

A group of distinguished speakers has been confirmed to speak on issues such as ISP liability, unwarranted threats to primary and secondary infringers, contributory and secondary liability for patent and copyright infringement, Google ads and trademark infringement, liability for transporters and freighters, time and geo-shifting devices and services, eBay and trademark infringement, and the impact of sporting events legislation on the public sphere.

Location for 23-24 May: Sofitel Macau at Ponte 16, Macao

Speakers include inter alia: Irene Calboli (Marquette University) Christopher Heath (EPO), Byung-Il Kim (Hanyang University), David Llewelyn (White & Case), Jan Nordemann (University of Berlin), Anselm Kamperman Sanders (Maastricht University), Pascale Trefigny (University of Grenoble), Tasuhiro Ueno (University of Tokyo), Bryan Mercurio (Chinese University of Hong Kong). They will be joined by local Hong Kong and Macau practitioners.

For updated information check the site of the Maastricht University here.

But Professor Kamperman Sanders has even more on offer:

The Intellectual Property Law School - 16 until 20 May 2011

The IP Law School is an initiative in Asia offering a taught programme in international Intellectual Property Law and its relevance for global, European and Asian economic development and innovation policy.

"The IP Law School is extremely suited for trainee lawyers, Intellectual Property professionals with an economic or policy background, and master students in Intellectual Property wishing to enhance their skills at post-academic level. Starting from the basics of the Paris and Berne conventions, the course covers the development of Intellectual Property Law all the way to the WTO TRIPS Agreement and the WIPO Copyright treaties. Attention is also devoted to regional arrangements, such as the European Patent Convention, and other new international and national initiatives. From a policy perspective free trade agreements and bilateral investment arrangements covering Intellectual Property, as well as ongoing negotiations in the area of protection of traditional knowledge will be covered."

Classes are offered in an intensive Socratic format in the course of one week by experts in the field.
There are substantial concessions for students wishing to follow the whole week-and-a-half.

What Is the Superlative of Contributory Liability?... Local State Supervision Liability?

Managing IP magazine, had a link to an interesting China Daily article, see here in which a State Administration for Radio Film and Television (SARFT) official was quoted as saying that it is "working on the establishment of an internet audio-visual programs industry association (..)". The application has been submitted and it now waiting approval to the Ministry of Civil Affairs.

Also interesting in the article is that the government intensified supervision over major internet enterprises, a precautionary move to stop piracy spreading. "In 2009, the number websites being supervised by local copyright authorities, reached 3,029. They include Taobao.com, Baidu, Sohu and Youku."

That means that if infringement still took place in that period, it was under local copyright supervision.

Taobao is China's e-commerce platform. And where eBay is sued by trademark holders in the U.S. (Tiffany), France (Hermès and LVHM) and Belgium (Lancôme), in China Taobao was sued for example by Puma; read Lee, Won Hee Elaine. 'Online Auction Sites and Inconsistencies: A Case Study of France, China, and the United States.' American University Intellectual Property Brief, Spring 2010, 50-57, here.

Jesse London (who is the managing editor of Cornell Journal of International Law), wrote an interesting note on China's Approaches to Intellectual Property Infringement on the Internet for the Internet Journal of Rutgers School of Law, volume 38, 2010-2011, read here. Mr London is comparing the IFPI cases against Baidu and Yahoo China and comes to the conclusion that the degree of good faith of the online service provider is crucial, but so is the degree of reasonableness of the demands of the trademark holder by insisting in the measures against infringement.

Youku (the Chinese equivalent of YouTube) had a lot of pirated Hollywood movies. But I checked a few times and they indeed seem to have cleaned up a lot of copyright piracy.