TRADEMARKS IN CHINA
T ose views may still hold true today in some quarters, but the tide is turning in China and washing away many of the Western criticisms. Slowly but surely, the fear and frustration have been replaced by a greater trust in China’s IP system and a willingness to maximise the benefi ts it off ers. Testament to this change, Microsoſt opened its fi rst ‘innovation centre’ on the Chinese mainland this year. T e World Intellectual Property Organization, eyeing the explosion of IP rights in China, is planning to open a new offi ce there within two years.
China has made a huge eff ort to shore up its IP system. Next year we can expect new trademark laws which, in their current draſt , will double the level of damages for infringement to 2 million RMB ($324,000). Single colours and sounds will be protectable as a trademark. T ere will be stricter deadlines for reviewing applications and oppositions. Damages will be tripled for wilful infringement.
Bad faith rules
The “huge” change under the draft law,
says Catherine Wolfe, president of
the UK-based Institute of Trade Mark Attorneys who has worked extensively in China, is on bad faith filing.
“T is in itself is perhaps not game-changing, but how it is implemented could be. What do we mean by bad faith? Do we just mean your agent—who really ought to know—fi ling in bad faith? In which case, that is not such a big change. Or do we mean, it is bad faith to fi le if you happen to discover that a company hasn’t yet fi led in China in a particular class?
“At the moment there is absolutely nothing wrong with noticing that famous company X has fi led all the way through from numbers 1 to 19 but hasn’t fi led in number 20, and saying ‘oh look, an open slot, I’ll have that, then’. T at entrepreneurial fi ling, if you will, is not a bad faith action.
“If the new law says that this entrepreneurial fi ling is bad faith, then at a stroke it is going to produce a very large number of oppositions, not only Western companies opposing Chinese applications but Chinese companies opposing Chinese applications. T is will have fundamental changes in the way the system works. If bad faith fi ling is interpreted to read on to entrepreneurial applications, then I would imagine some high profi le rulings will make that known very, very quickly. T at is a very exciting thing.”
Gloria Wu, partner at law fi rm Kangxin in Beijing, says that while the new trademark law bring welcome news for rights owners, it will take time before we can fully understand its benefi ts.
“We are going in the right direction, but it will still take a long time. It will take a while for examiners and judges to get used to the new practices and rules, for example on bad faith. T e change of law is just the beginning.”
China is going places, but the improvements don’t end in the trademark world. T e government is concentrating on improving the quality of patent examiners and the Chinese patent
reinforcing to local companies that “coming up with innovations that are going to sell
around the world” is important, says Gwilym Roberts, council member at UK group the Chartered Institute of Patent Attorneys.
“Across the board, the government has identifi ed that merely setting targets for patents isn’t enough, so they are looking to really stimulate innovation.”
Goal setting
In 2011, China began setting specifi c goals for improving the patent landscape. As fi gures by Chinese law fi rm Beyond Attorneys at Law show, the government’s aim for 2015 was for annual patent applications to exceed two million, the number of patent examiners to stand at 9,000 and the number of practising patent attorneys to number 10,000.
China already surpassed some of these expectations last year. As the fi gures show, in 2012 there were
2.05 million patent
applications, or 26 percent more than the previous year, handled by the patent offi ce. Chinese companies, which receive government subsidies for fi ling applications as well as state funding for research and development, accounted for the vast majority—1.9 million— of last year’s applications.
profession, as well as
But Roberts, a regular on business trips to China, says one of the eff ects of setting so many targets was that domestic companies were fi ling patents merely to receive relevant subsidies.
the
“It wasn’t really the point,” he said, noting that this was one of two factors behind
www.worldipreview.com
World Intellectual Property Review September/October 2013
27
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