Sword Is Going After The Counterfeit Source

"The Way of the Sword is from the beginning difficult to learn.

Like a Dragon or Rainbow it is subtle and mysterious.

Should it be used like a hacking Sabre, 

the immortal Zhang Sanfeng die of laughter."

Photo: Danny Friedmann

Remember the campaign that started in November 2010 and will end until the end of 2011, called Bright Sword (read How bright is Bright Sword here)? Well, the name is made a bit more prosaic: Bright Sword Action and the organisational structure has changed too: "From September 1 to December 31, 2011, nationwide public security organs under the deployment of the Ministry of Public Security will carry out the decisive Sword Action so as to combat IPR infringement and counterfeiting." Read at the site of IPR.gov.cn here.

As of July 2011, the results of the public security organs were according to IPR.gov.cn as follows: 

• The public security organs had solved 17,773 cases valued at 14,050 million yuan;
• arrested 31,392 suspects and identified 4,537 criminals;
• destroyed 13,124 illegal sites;
• dismantled 4,537 criminal gangs.

Although IP Dragon is not a big fan of mass enforcement campaigns that are announced so that the culprits are warned the decision to go after the source is definitely a good development. "In view of the features of counterfeiting, more intensive efforts should be focused on the destruction of the crime source."

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Negotiating With IP Infringers in China As A Last Resort

Mr Mark A. Lieberstein and Stephen W. Feingold (both working for Day Pitney LLP) were interviewed by Mr Albert W. Driver, editor of the Metropolitan Corporate Counsel.

The interview, which has the title 'Keys to Enforceing Intellectual Property Rights in China' includes an interesting quote from Mr Lieberstein:

"While not the preferred approach for enforcing IP in China, negotiation can work if you reach out through a third-party in China to approach the counterfeiter and work out a deal; it can also save time and money. Of course, this may be the only strategy available if a company slept on its rights and never registered its marks in China, unless it is lucky enough to have a brand that is well-known or famous in China. Recognition outside of China, however, is not relevant."

Read the interviewer Mr Driver and the interviewees Messrs Lieberstein and Feingold here.

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Thesis: Paper Tiger or Roaring Dragon, China's TRIPs Implementations and Enforcement

Thesis by Danny Friedmann,
thesis advisor Professor P. Bernt Hugenholtz, Professor Peter K. Yu:
Paper Tiger or Roaring Dragon
China's TRIPs Implementations and Enforcement

Abstract:
Thesis about whether China’s IPR enforcement laws are TRIPs compliant.

At least on paper most of China’s IPR procedural laws are compliant with specific TRIPs provisions. China’s IPR laws are certainly non-compliant to the more general provisions of TRIPs, due to incompatible extra-judicial factors. Nevertheless, no unequivocal preference for a WTO case against China can be given. Another option, although more complicated, to tackle China’s IPR enforcement challenges is to be preferred: to address China’s transparency, market access, uniform application of law, integrity and impartiality of the courts and expertise in and respect for IPR.

Read the thesis here (pdf). Your comments are very welcome at ipdragon at gmail dot com.

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TRIPs Council: China Advocates Disclosure Requirement, is Against Making Enforcement A Permanent Agenda Issue

Bridges of ICTSD gives excellent weekly trade news digests about TRIPs etc.

"At the 13 February meeting of the TRIPs Council, the group of developing countries -- Brazil, China, Colombia, Cuba, India, Pakistan, Peru, Thailand, Tanzania, Ecuador and South Africa -- that have tabled a draft article on disclosure (that requires patent applications to include disclosure of the origin of genetic resources and associated traditional knowledge along with evidence of prior informed consent and benefit sharing. IP Dragon) reiterated their call for an amendment. They said they now were ready to proceed with text-based negotiations."

"A number of developing countries, led by China, expressed opposition to making the enforcement issue a permanent agenda item for the Council. China noted that there is no mandate in either the TRIPs Agreement or the Doha agenda to pursue such work, and that a discussion on the topic would not be helpful in advancing other agenda items currently under negotiation or review."

"China, Argentina, Brazil, Cuba, India and South Africa reiterated the importance of Members' freedom to determine the appropriate means of IP enforcement, and the need to consider enforcement issues in conjunction with other TRIPs provisions, such as the non-discrimination obligation and the need to avoid the creation of unnecessary trade barriers. In addition, they cautioned against duplication of work already carried out by the World Customs Organisation and WIPO."

Read ICTSD's article here.

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