TRADEMARKS IN CHINA
Roberts says the improvements show that China is keen to be recognised globally as a country that takes IP seriously and where it is “worth obtaining IP protection”.
“Not only are they strengthening the creation of innovation but also the enforcement of the IP thereaſter, for local and overseas companies.”
China’s increased respect for both IP protection and enforcement should be a bare minimum for a country signed up to an international trade agreement such as the WTO’s TRIPS Agreement. It should be normal and completely uncontroversial for a member state to implement rules and practices that seek to maximise the value of innovation.
But China is different. It’s a country that has long struggled to shake off its reputation as a copier rather than a creator, where Western rights owners have oſten struggled to navigate, as well as one that offers so much to businesses and traders.
Tere was a certain view 10 years ago, says Wolfe, that Western party A would see no point in filing IP in China because “I won’t get it protected and if I do I can’t enforce it. And I don’t care that
Chinese party B can file in China because he can’t use it to stop me”.
“Now, all those sentences are wrong,” she says. “Te very fact that we are talking about improvements shows how far China has come. Tey’ve done more in IP in the last 15 years than we in Britain have.”
Roberts adds: “China is pulling itself into line with the global standards, and the positive spin is that they have managed to do it in less than 30 years. It’s taken Britain since 1624. People have been critical, but the important thing is that China has listened and responded.”
Of course, there are outstanding worries for rights owners. Tere should be better communication between the IP offices and attorneys, says Wu, “because in lots of other countries there are routine meetings between examiners and attorneys, discussing core issues and whether there should be changes in practices—that is very helpful”.
Despite being heralded as IP owner-friendly, the new trademark law will be seen as successful only if it is applied properly and fairly. Te increase in damages and other provisions are a step forward for prominent problems such as tackling infringement
and squatting, but in reality fines, especially against domestic infringers, tend to be low and much is leſt to the discretion of local officials, says Tomas Pattloch, partner at Taylor Wessing LLP.
“Whether the new law can produce the desired effect of a better trademark environment will depend on local officials’ willingness to change old perceptions and actively apply it,” he says.
While most Chinese companies would quietly admit that Western companies get a level playing field in the major cities—Beijing, Shanghai and Guangzhou—Roberts says that when you get outside these places the outcome of a case is still “a little bit up in the air”.
“China knows it has to deal with that,” he says.
No IP system is perfect and China’s, like all others, will always have its faults. What is encouraging is that China has made great strides to improving its stance towards IP and swatting the stigma about infringement. More importantly, and in the face of the constant hurling of insults, China has done this relatively quickly. It has a huge potential as a stronghold for IP owners seeking to unearth lucrative business opportunities. Te future is bright; the question is: how far can China go?
www.worldipreview.com
World Intellectual Property Review September/October 2013
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