ANTI-COUNTERFEITING
in one to three months from a brand owner filing a complaint to the AIC rendering a decision. Administrative enforcement is very suitable for stopping an obvious infringing act.”
But there are downsides. “Administrative remedies are limited to stopping the infringing act, and confiscating and destroying the infringing articles and tools used specially for making infringing goods, and imposing a fine, but they do not include any compensation to the brand owner,” she says. “It is not unusual that infringement may recur.”
Despite the possibility of recurrence, a brand owner may see physical seizures of counterfeit products as a sign that its enforcement efforts are producing results. Li says that brand owners have high expectations of customs agencies because they can deter counterfeiters with high rates of seizures. “For instance, Chinese customs has seized more than 20,000 shipments of infringing goods and detained more than 100 million infringing commodities in importation and exportation,” he says.
It’s difficult to ascertain how effective or how much of an impact customs agencies—not just in China but everywhere in the world—have on brand protection efforts, says Abrams, but
undoubtedly training, co-operating and working with customs is a cost-effective tool in any anti- counterfeiting strategy.
Abrams explains: “We systematically train customs agencies in China, usually through the assistance of local counsel and a Tiffany representative. We usually see increased seizures following that type of training activity.”
Customs agencies need brand owners to share information with them if they are going to significantly aid brand protection efforts. “Customs has the power of enforcement and the brand owners have the information,” says Li. “Te brand owners should actively provide customs with the necessary information for enforcement.”
He explains: “Te information that brand owners can provide to customs usually includes the registration of trademarks, the identification of the infringing goods, the companies authorised to use the trademarks, and the importation and the exportation of the infringing goods known by the brand owners.
“When the customs finds that the recorded trademarks are used by the imported or exported
goods, customs will suspend the procedure of customs clearance and notify the trademark owners,” he says. “However, the interests of the importers and the exporters will be harmed if these suspended goods turn out to be legitimate.”
Te benefits of customs seizures mean that it pays to respond to requests for this type of information. “It goes both ways,” says Abrams. “Customs is willing to help well-known brands in China, provided that brands are willing to take the time to assist customs with the identification of counterfeit goods. Tiffany prides itself on being very responsive to customs and taking action and following up on seizures where it is afforded that opportunity.”
Establishing a business in China is manageable, but preserving a brand in the country is difficult. China is open to foreign companies and it is striving to help them protect their IP. Te problem is the presence of a successful brand in an environment such as China, because the country is home to so many people and so much land that it is difficult to police, meaning that counterfeiters have plenty of places to hide. A big budget coupled with a bold enforcement strategy is the most effective way of preserving a big brand in China.
www.worldipreview.com
World Intellectual Property Review May/June 2011
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