Does Changsha Windows of the World Infringe Angry Birds' IPRs

The online game Angry Bird is a hit but as China Hearsay's Stan Abram notices not only online. He is asking whether the software developer of Angry Birds, Rovio, should not become well, angry when its IPRs are being infringed in China (most probably also at the Windows of the World Park in Changsha, Hunan province). Read Stan's article here.

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Exposed Fake Kunming Popular News Story Debunked

Now that Kunming officially is the fake capital of China, IP Dragon sent a stringer there and in the name of genuineness and gonzo journalism we break the following shocking news. The reputable China Hearsay, got a tip from an anonymous blogger in Kunming. China Hearsay's intern Kiki confirmed the news. That all the people that sit in the press room of the highly popular Popular News in Kunming are actors, read here.

As said, IP Dragon did some research of its own: "We got news from our stringer in Kunming, that the anonymous blogger that informed Mr Abrams was in fact Wolfgang Wang." 

The very same Wolfgang Wang started an affair with Kiki, China Hearsay's intern. It became clear that together they fabulated the news that the Popular Press was not a foreign bureau. However, when we tried to  translate the transcripts of  their official reaction we were unable. That foreign. And a background check on Wolfgang Wang demonstrated the following: Wolfgang Wang was misleading Kiki about the origins of the Popular Press, while making a fortune from speculating that its stock price would plummet. And worst of all distracting her from making any real discovery about his fake Kunming BMW dealership.

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Press Conference: DaVinci Furniture GM's Nose Grows Longer Than Pinocchio's

Honest Pinnocchio by Mike He, a Chinese designer
"It is your pencil that makes him lie"
Source: Yatzer

One night, the wood carver Geppetto general manager DaVinci furniture Panzhuang Xiahua had a dream. He She dreamed that the marionette would come to life company would import high quality furniture from Italy.

Well it seems now exactly that, just a dream. It turned out that the products where made in China and after an export-and-import scheme sold in China as Italian furniture. Stan 'China Hearsay' Abrams asserted that the item was covered in the media erroneously as an IP in China subject because there was no IP infringement, see here. If you interpret the term strictly he is right. However, one can interpret IP in China a little bit broader (if only to cover this over-the-top dramatic press conference, see videos via Kenneth Tan's Shanghaiist post here). This news does put the origin function of the trademarks, coupled to the quality function in the spot light. Instead of blaming the allegedly greedy purchasers of extremely expensive furniture I propose that even the very well to do should be protected from confusion about the source of the products. And the course of events might have damaged the reputation of the Made in Italy label, see The Made In Italy Portal here.

More about Pinocchio's allegory (on those darned 1880s) see here.

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Shake or Crush Your Hand: Huawei versus ZTE versus Huawei

Photo: Danny Friedmann
Shake Or Crush Your Hand, you choose. 

What if you are developing a product but your competitor has patented some technology needed to achieve the technical result? And at the same time you have some patents that you know you competitor likes to use? You might consider to cross-license. However, from a patent strategy point of view, excluding your competitor from some crucial technology might be the best thing to do.

Bien Perez reports in the South China Morning Post (April 30, 2011): "Huawei had also invited ZTE on many occassions to enter into cross-patent licensing negotiations, but was unsuccessful."

Then April 28, Huawei sues ZTE in Germany, France and Hungary for alleged patent infringement related to its data card and Long Term Evolution standard (candidate for 4G mobile communication standard) technologies, and trademark infringement.

April 29, ZTE counter sues Huawei for alleged patent infringement on Long Term Evolution.

"Proxy PRC Courts" in Europe and now also China

China Hearsay's Stan Abrams is not surprised that the legal fight "in a most non-harmonious fashion" between two Chinese giants took place overseas, see here.

It is interesting that Chinese competitors fight some patent and trademark issues abroad. But I think it becomes really interesting now that ZTE has sued Huawei in China. ZTE also threaten to take a series of legal actions globally to protect its IPR rights.

UPDATE:  The Hungarian site Portfolio.hu has a picture provided by Huawei that it uses to proof that ZTE is infringing its trademark. See Porfolio.hu's article Huawei files patent, trademark lawsuits against ZTE, rival rejects charges.

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Paradox of Strong Brands in China: Cause And Cure of Counterfeiting

If you have a strong brand, chances are that your trademark will be counterfeited in China. The counterfeiter can simply manufacture unauthorised copies of a popular brand: no developing costs, no marketing costs, and certainty about the demand. Then again chances are very slim that a company with a strong brand will counterfeit your trademark. As I have pointed out earlier in China this is not necessarily good news, since these non-infringing companies can be even more apprehensive competitors. In principle this would lead to fair competition, if only there was fair market access for non-Chinese companies. Nevertheless, IP Dragon was happy to read Laurie Burkitt's article 'State of Things: What are China's Top 50 Brands' in the Wall Street Journal (December 15, 2010). It includes a slideshow of China's Top 10 Brands by Value: 4 banks, 2 insurance companies, 2 internet companies, 1 oil company and 1 telecommunication company are most valuable, see here. Hat tip to China Hearsay.

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IP Dragon Speaks on 7th Annual Asia-Pacific IP Forum 2010

September 1, 2010, Stan Abrams of China Hearsay fame, and I will speak on Social Media (such as Facebook, LinkedIn, MySpace, but also blogs) and intellectual property (especially trademark and copyright) issues, during the 7th Annual Asia-Pacific IP Forum 2010.

There is a lot to say about this subject. If you deem a related subject important or have a great example about this subject matter, please do not hesitate to tell me, so that I will use it in my presentation (ipdragon at gmail dot com).

Last year's event Asia-Pacific Forum was great and this year's event seems very promising. Organised by Managing Intellectual Property and chaired by IP Dragon's friends Peter Ollier, Asia editor of Managing Intellectual Property and Dan Cole, Group Publisher (Asia), Legal Media Group.

Hope to see you there. See the agenda of the two day seminar here.

Picture/Text Danny Friedmann

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Is It a Plane? Is It a Bird? No It is the Bleagle! Made in China

Stan Abrams of the China Hearsay (which has been totally upgraded) reports straing from the INTA in Boston about ... Geely's Gleagle. Mr Abrams is giving his always entertaining thoughts about trademarks that consist of made-up words.

Read more here.

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Is Coffee-Mate a Generic Term for Coffee?

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

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Fake iPhones: Rip-off or Innovation

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

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

It must be:

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

You can check out the interview here.

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Well Known and Less Known Aspects Of Well-Known Marks

In the USTR 2008 Report to Congress on China's WTO compliance on page 4, one can read the following remarkable sentence:
"...the promotion of famous Chinese brands of merchandise using what appear to be prohibited forms of financial support, ..."

So it appears to be a prohibited form of financial support, but the USTR is not totally sure about it? First China was encouraged to protect well-known marks, and now that they do...? What is happening?

The USTR alleges that China subsidises Chinese "famous brands" by

• including cash grant rewards for exporting;
• preferential loans for exporters;
• research and development funding to develop new products for export;
• and payments to lower the cost of export credit insurance.

Hui Boyang, deputy director of the quality management department of the General Administration of Quality Supervision, Inspection and Quarantine, denies the claim. Read the Xinhua article by editor Sun here. Stan Abrams of China Hearsay has a nice blog 'There Are No Coincidences - trade edition', about the coincidence of the expiration of the textile deal between the U.S. and China and this new allegation.

What are famous brands or well-known marks?

Intellectual Property Rights has two pillars

• Copyrights regulated by the Berne Convention, which come into existence without any formalities at the moment of creation of a work;
• Industrial rights (also called "registered rights"), regulated by the Paris Convention for the Protection of Industrial Property, and which, generally, need to be registered before they are protected.

Well-Known Mark Exception To Second Pillar (the European Community has another exception, the unregistered Community Design right)

However, article 6bis Paris Convention prescribes to its members "to refuse or to cancel the registration, and to prohibit the use, of a trademark which constitutes a reproduction, an imitation, or a translation, liable to create confusion, of a mark considered by the competent authority of the country of registration or use to be well known in that country as being already the mark of a person entitled to the benefits of this Convention and used for identical or similar goods." So this means that marks that are well-known in a country are protected, whether they are registrated or not. Registration of these well-known marks has its advantage, as we will see below.

In December 2008 I mentioned that I would come back to Brad Luo and Shubha Ghosh's paper 'Protection and Enforcement of Well-Known Mark Rights in China: History, Theory and Future' (74 pages PDF) after finishing reading it. As I already expected it is a great paper.

Article 13 Trademark Law 2001 PR of China stipulates:

Where a trademark in respect of which the application for registration is filed for use for identical or similar goods is a reproduction, imitation or translation of another person's trademark not registered in China and likely to cause confusion, it shall be rejected for registration and prohibited from use.

Where a trademark in respect of which the application for registration is filed fdr use for non-identical or dissimilar goods is a reproduction, imitation or translation of the well-known mark of another person that has been registered in China, misleads the pub1ic and is likely to create prejudice to the interests of the well-known mark registrant, it shall be rejected for registration and prohibited from use.

Take note that transliteration is not mentioned as ground for to oppose registration or prohibit use of a mark.

Messrs Luo and Ghosh explain the advantage of registering your mark as a well-known mark in China: "the owner of the mark can exclude others from registering or using the mark, may it be reproduction, copying or translation, in goods of all types, similar or dissimilar, identical or non-identical. If a mark is unregistered and has been deemed as well-known in china, the owner can still avail itself of the accompanying protection by preventing the use or registration in similar or identical categories of goods. Notably, the 2001 CTL gives equal treatment and protection to owners of service marks and trademarks. Furthermore, the owner of a registered mark has the right to oppose the unauthorized registration and use of the mark by its agent or representative, thus enjoying an added protection for the owner where the agency relationship goes sour."

I could add that it is always good to have a mark registered in a country, including China, so that this factor may be taken into account when you want your mark be recognised as a well-known mark in another country. See in the joint recommendation below how this works:

The Standing Committe on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT) has adopted a joint recommendation pages 1-12 (pdf) concerning provisions on the protection of well-known marks (June 7-11, 1999), which on its turn was adopted at a joint session of the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of the World Intellectual Property Organization (WIPO) (September 20-29, 1999). The provisions on the protection of well-known marks do apply to conflicting marks, business identifiers and domain names, but not to geographical indicatitions nor appellations of origin.The International Bureau of the World Intellectual Property Organisation (WIPO) made some explanatory notes pages 13-20 (pdf) about the joint recommendation. the SCT has agreed that the notes will not be submitted for adoption by the Assembly of the Paris Union and the WIPO General Assembly. In cases of conflicts between the provisions and the notes, the provisions would prevail (paragraph 17 document SCT/2/5).

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IP in China; Never a Dull Moment

As the previous message pointed out, IP Dragon was occupied, so when I resumed blogging I immediately was confirmed by the facts and developments that this field of law is dynamic and fascinating, indeed:

America's WTO case against China challenging deficiencies in IPR laws have reached a new status, the US Trade Representative announced today (August 13, 2007) in a press release: the request of a WTO panel, which will be considered by the WTO Dispute Settlement Body at its next meeting, scheduled August 31. The other WTO case, challenging unsufficient market access affecting copyright intensive industries, the United States has just completed supplemental consultations with China and is considering next steps. Read about the previous disastrous obligatory Sino-American WTO consultations, that lead to this new status of the dispute, here.

More news:

- Stan Abrams of China Hearsay, one of IP Dragon's favourite blogs, has moved from Lehman, Lee & Xu in Beijing to DLA Piper Beijing. Success at your new law firm.

- Dan Harris and Steve Dickenson of ChinaLawBlog won the China Blog Awards in the category business and law blogs in the contest organised by Chinalyst. Covering all law of China, and regularly producing great blogs, winning the award is well deserved. Congratulations.

- IP Dragon, also nominated for Chinalyst's China Blog Awards in the category business and law blogs, got to number 11 out of 30 nominees. Not too bad for a niche player specialising in the segment IP in China. Readers who voted for IP Dragon, thank you.

The other things relevant to IP in China that happened in this two weeks no-blogging interval are covered in my upcoming thesis (Paper Tiger or Roaring Dragon, China's TRIPs Implementations and Enforcement', which is evaluated at the moment for a grade, and will be published on this blog. They say patience is virtue.

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