EU Experience and Practice Must Show China The Way Concerning IPR Protection At Exhibitions

It is crucial for companies to showcase their new products to the world at trade fairs and exhibitions. Hower, these places welcome potential customers but also IPR infringers.

To make the bonafide exhibitors less vulnerable to IPR infringements and deal with the IPR infringers that also have come to the trade fairs, the IPR2 (EU-China Project on Protecting Intellectual Property Rights, 10.85 million euro provided by the EU and 5.425 million euro by China) has written a 36 page study that must show the way to the Department of Treaty and Law of the Ministry of Commerce of China on 'How to Protect Your Intellectual Property at Trade Fairs', based on the experience and practice of France, Germany, Italy, the Netherlands, Spain, Switzerland and the United Kingdom, see pdf here.

Negative peculiarities in IPR protection during exhibitions mentioned in the study are:

• Timing; because of the short period it can be hard to execute an ex parte order;
• There can be a lack of availability of experts;
• Risk of double prejudice for both the IPR owner and alleged infringer.

The study comes up with the following positive peculiarities in IPR protection during exhibitions:

• Move evidence available;
• An extra jurisdiction option;
• Deterring effect, because of the public perception of an intervention.

The study was written by:
Jean-Frédéric Gaultier (Clifford Chance, France);
Reinhardt Schuster (Bardehle Pragenberg Dost Altenburg Geissler, Germany)
Giovanni Casucci (Casucci Studio Legale, Italy) who also coordinated the study;
Montserrat Lopez-Bellosta (Clifford Chance, Spain);
Carlos Rivadulla (Clifford Chance, Spain);
Johannes Jabocus Brinkhof (Brinkhof, the Netherlands);
Philippe Azzola ( Philippe P. Azzola, Switzerland).

A condensed version of the study was provided to some 200 companies in a training run by the Ministry of Commerce at China's most important trade fair, 104th China Import and Export Fair in Guangzhou, Guangdong Province (15-19 Oct; 24-28 Oct and 2-6 Nov 2008).

The report came a year after a EU-China Seminar on the Protection of IPR at Trade Fairs in Beijing and Shenzhen in November 2007. IPR2 supported a study tour by MOFCOM officials to Paris, France; Berlin, Hannover, Germany and Milan, Italy in November 2008 to assess the methods and practices employed at several of the largest European trade fairs. Read more about the study tour here.

The Protection Measures for Intellectual Property Rights during Exhibitions of the People's Republic of China, formulated according to the Foreign Trade Law of the PR China, Patent Law of the PR China, Trademark Law of the PR China, Copyright Law of the PR China and relevant administrative regulations, however, is already in force since 2006, see here.

UPDATE: The powerpoint presentation 'Stakeholder briefing www.ipr2.org, March 6, 2009, can be seen here.

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Comparison Between The IPR in China Relevant Provisions Of the Foreign Trade Law 2004 and 1994

I have just added links to the Foreign Trade Law of the People's Republic of China 1994 and 2004 on IP Dragon's blogroll ( under "IPR in China Laws and Regulations").

The IPR relevant article 6 Foreign Trade Law 1994 is almost identical to article 6 Foreign Trade Law 2004 (most favoured nation treatment and national treatment because of articles 4 and 4 TRIPs, respectively, before 2001 because of article 5 (1) Berne and aricle 3 Paris Conventions)

Article 14 Foreign Trade Law 1994 is similar to article 13 Foreign Trade Law 2004 (the departments that get information from the foreign trade operaters should keep business secrets to themselves, see pages 15-16 Thesis).

Article 27 (2) Foreign Trade Law of 1994 prohibits explicitly infringing upon intellectual property rights and article 27 (5) Foreign Trade Law 1994 "other acts violating laws or administrative rules and regulations" can also be used to base a prohibition against IPR infringement.

It can be concluded from article 14 Foreign Trade Law of 2004 that import and export of goods is not free if law or administrative regulation provides otherwise.
Different from Foreign Trade Law 1994 is that Chapter V of the 2004 amendment is dedicated to Foreign-trade-related Intellectual Property Protection. Article 29 Foreign Trade Law 2004 includes: "Where any of the import goods violates any intellectual property right and, at the same time, endangers the foreign trade order, the foreign trade department of the State Council may take such measures as prohibiting the import of the relevant goods that the infringer has produced or sold for a certain period of time." No word about export goods that violate IPRs. This is in compliance with TRIPs, since article 51 TRIPs only obligates that WTO members shall adopt procedures to enable a right holder that has valid grounds that counterfeit trademark or pirated copyright goods import may take place, to lodge an application. Article 2 Regulations of the People's Republic of China on Customs Protection of IPRs 2003, however, goes beyond this obligation and applies to both import and export.

Article 30 Foreign Trade Law 2004 is to give the foreign trade department of the State Council the legitimacy to take measures in case of an IP right holder that hinders the licensee from questioning the validity of the IPR involved in the license agreements, conducting forced package license or providing exclusive selling back conditions in the license agreement, etc.

Picture: threecee

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