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Protecting well-known trademarks
By Wang Ying (China Daily)
Updated: 2004-12-05 23:18
The country's trademark watchdog has stepped up its
efforts to improve the administration of trademarks, protecting their exclusive
rights of use and maintaining the reputation of well-known brands.
The State Administration for Industry and Commerce (SAIC)
and its local branches conducted a nationwide campaign from mid-July to
September, targeting trademark violators.
The
campaign has cracked down on more than 7,770 trademark violations and shut down
around 1,150 factories and workshops which made fake products.
Special efforts have been made in seven areas where large
amounts of counterfeited products are sold -- Beijing and Shanghai
municipalities, Zhejiang, Jiangsu, Shandong, Guangdong and Fujian provinces.
Industrial and commercial administrations have
harshly dealt with infringements involving products such as foodstuffs, drugs
and agricultural materials that are closely related to public safety and health.
Law enforcement officers have seized a number of
counterfeit products related to domestic famous brands including Great Wall,
Wuliangye, Tsingtao, Yili and Jianlibao.
Apart from fake domestic brand-name products, a number
of counterfeits of foreign famous brands including Nike, Boss, Gucci, Louis
Vuitton, Adidas, Samsung, Honda, Bosch, Polo, Sony, Burberry, Lancome, Playboy
and Panasonic were also seized.
For example, the
Beijing Industrial and Commercial Bureau has taken steps to ensure trademark
protection at Xiushui Street (Silk Alley), Yaxiu, and Hongqiao, some of the
shopping areas in Beijing that are popular with foreigners.
The Beijing authorities have suspended 40 stands in the
capital's Hongqiao Market which sold fakes with famous foreign trademarks. Any
shops or stands that sell Louis Vuitton, Givenchy, Fendi, Chanel, Burberry and
another 20 foreign trademarks will be regarded as trademark violators and
seriously punished.
A hotline --
12315 -- has opened to the public to report trademark violations.
According to statistics from the SAIC, local authorities
checked more than 80,000 shops and stands in more than 27,660 markets across the
country by mid-September. Officials have discovered 1,493 foreign-related
trademark violation cases and seized more than 2 million counterfeit products.
Officials have also confiscated around 6.5 million
fake foreign trademark labels which are ready for use on counterfeit products
and 10,000 items of equipments to make fake trademark labels.
Trademark matters
Since the country joined the
World Trade Organization (WTO) three years ago, China has revised its trademark
laws and regulations to bring them more in line with WTO rules and to provide
companies with a better business environment with regard to intellectual
property protection.
China employs a centralized
trademark registration system. The Trademark Office within the State
Administration for Industry and Commerce is responsible for the registration and
overall administration of trademarks.
The local
administrations of industry and commerce have established trademark offices to
handle local trademark administration and enforcement.
The Trademark Review and Adjudication Board under SAIC is
responsible for handling trademark registration disputes.
China employs a "first-to-file" system for trademark
registrations, rather than the "first-to-use" system generally adopted in
countries such as the United States.
China's
requirements for obtaining a trademark registration are basically the same as
those in most countries, namely, the trademark must be distinctive, and must not
conflict with an existing registration.
The
Trademark Office has a centralized database of all registered or applied-for
trademarks.
A trademark application which passes the preliminary screening
will be published in the Trademark Office's gazette for public objection for a
three-month period.
Leeching on well-known
trademarks
According to China's Regulation for Evaluating and Managing
Famous Trademarks, famous trademarks refer to those registered trademarks that
are well-known to certain groups of people and have a higher fame on markets
and, therefore can enjoy both administrative and judicial protection in
China.
In China, SAIC is responsible for evaluating
famous trademarks.
Holders of domestic and foreign
famous brands can apply with SAIC for protection. Brand holders could also
appeal to court for recognition of their famous status.
Corporation names, however, are regarded as a seperate
intellectual property, and are approved by corporation registration offices
under SAIC.
"Technical problems and system
differences between the trademark and corporation registration procedures have
created an obstacle in trademark protection," said Zhang Ming, an official with
the Corporation Registration Office under SAIC.
There are more than 4,000 corporation registration stations
across the country.
Currently, the databases of all
these stations are not linked nationwide, which makes it hard for registration
officials to spot trademark infringements when dealing with an application for
corporation registration.
"To prevent companies from
registering using the similar names of famous trademarks, a well-known
corporation and trademark database needs to be established as soon as possible,"
said Lu Pushun, secretary-general of China branch of the International
Association of Intellectual Property Rights Protection.
The loophole in trademark and corporation registration
procedures has sparked a conflict between trademarks and the names of
corporations, yielding a group of companies which lean on well-known trademarks
as cash cows, said Liu Min, an official with the Fair Trade Bureau under the
State Administration of Industry and Commerce.
"The
administration has co-operated with other government departments to tackle this
hard rock and tried to protect famous trademarks," Liu said at a seminar on
intellectual property rights protection in Beijing in late November.
Organized by China Industry and Commerce News, the seminar
focused on stopping businesses from registering trademarks or company names
similar to brandname trademarks or products.
Experts
taking part in the seminar exposed the actions of dishonest companies which had
taken advantage of famous trademarks by trying to copycat the brand names.
Some misleading trademarks are reproductions,
imitations or translations of well-known trademarks, creating confusions among
consumers, officials said.
Some companies even
registered other famous trademarks as their corporate names on the Chinese
mainland and highlighted the company names when selling their own goods to
mislead consumers.
Some companies registered famous
trademarks as their corporate names overseas and sell goods on the Chinese
mainland in the name of the entrusted companies of those famous brand
names.
SAIC has received an increasing number of
complaints on unfair competition using others' famous trademark as corporate
names, Liu said.
Different departments under the
administration, including the Trademark Office, the Corporation Registration
Office, the Fair Trade Bureau, Foreign Corporation Registration Office and Law
and Regulation Department, have made joint efforts to crack down on dishonest
companies which leaned on well-known trademarks.
The
administration has been working with judicial departments and courts to
establish a unified standards to deal with the trademark violation cases.
The Supreme People's Court is preparing to issue a
judicial interpretation on trademark and corporate name conflicts, enabling
registered trademarks or corporations to own two or more formally legal
intellectual rights.
The Supreme People's Court has
made a draft on guidelines of intellectual property right disputes over
conflicted rights.
Hailing the principles of
honesty and credibility, protecting the first to file and fair competition,
courts at all levels have been urged to carefully define the parties' legal
rights in trademark and corporation name conflicts.
Before the launching of the draft guidelines, many local
courts have accumulated rich experience in handling intellectual property rights
cases.
Courts at different levels in Central China's
Hubei Province have heard more than 100 unfair competition cases in the past six
years, including 29 cases of well-known trademark imitation cases.
The High People's Court in East China's Jiangsu Province
have heard 21 cases of second-instance intellectual property rights conflicts,
including eight cases of conflicts between trademarks and corporation names.
Above all, the fundamental task in protecting
trademark rights is to prevent trademark infringement in advance through
stricter and more scientific registration measures, said Zhang.
Zhang said his office will study corporate name management
and has tried to input well-known trademarks into their system to prevent
companies from registering under others' famous trademarks.
To better protect famous trademarks, a standard national
bulletin platform will soon be launched to provide more information to related
companies and help improve their awareness of trademark protection, Zhang
said.
Sheng Jiemin, a law professor from Peking
University argued that more laws and regulations need to be made to better
protect intellectual property rights.
"The amendment to the present Anti-Unfair Competition Law is expected
to be launched soon to better tackle the emerging problems on the ever-changing
market," Sheng said.
Sheng called on courts and administrative bodies to
make more detailed regulations on intellectual property rights
protection.
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