IPR Issues

 

EXHIBITIONS AND IPR IN CHINA

While commercial exhibitions and trade fairs are excellent ways to connect with the Chinese market, they are also potential arenas for intellectual property rights (IPR) infringement. When planning participation in any such exhibition, IPR consideration must be an essential part of the preparation.

Regulations and measures issued by Chinese authorities provide a good framework enabling PRC rights holders to react to IPR infringement at exhibitions in a quicker and more effective manner.

However, to fully benefit from the existing IPR protections channels, it is important to be proactive and begin preparing well in advance. Do your homework on China IP, and consider seeking expert advice in drafting a comprehensive strategy best suited to your particular needs.

THE BASICS

The basis of any IPR protection action taken in China is the registration of your rights in the early stages of planning the entry into the Chinese market. The following basic actions provide a firm foundation for a good IP strategy:

TRADEMARKS:

• Apply for registration of your trademarks in China. The process takes about two to three years.
• If you have a valid international trademark registration covering China, you must obtain a Chinese confirmation certificate, before IPR enforcement action can be taken. The process takes about three months.
• It is important to note that where a trademark is first used for goods in an international exhibition sponsored or recognized by the Chinese Government, the applicant for the registration of the trademark may enjoy a six month priority right from the date of exhibition of the goods. Written claims for this priority should be made when the trademark is filed in China and evidence of such use submitted within 3 months. Failure to do so, it will negate any priority rights.

COPYRIGHTS:

• China is a member of the Berne Convention. Any copyright from Berne Convention countries will be automatically protected in China. Check to see if this applies to you. However, before direct IPR enforcement can be based on copyright at exhibitions, a recordal of the copyright is necessary. The process in China takes about one month.

PATENTS:

• Apply for registration of your patents in China. The process for registering a Design Patent takes less than one year, registration of a Utility Patent takes approximately 2 years, and an Invention Patent takes approximately 2-3 years.

IPR PROTECTION MEASURES AT EXHIBITIONS

The PRC “Measures Regarding Intellectual Property Rights Protection at Exhibitions and Trade Fairs” went into effect on March 1, 2006 and cover exhibitions, trade fairs, and conventions operating within the realm of trade and technology. The measures apply to the protection of trademarks, copyrights and patents and provide a framework for handling IPR violations observed during exhibitions.

An important aspect of the Measures is the regulation obligating the organizers of any exhibition that lasts longer than three days to set up an IP Complaints Office if required. This Complaints Office is intended to deal directly with infringements. The Complaints Office staff can obtain samples of suspected infringing goods as evidence on location.

Complaints received by the Office must be passed to the relevant local IP authorities within 24 hours of reporting. The authorities are then required to issue a decision according to the relevant laws and regulations, and promptly bring it to the attention of the parties as well as the exhibition organizers. Cases not finalized during the exhibition can be transferred to the relevant authorities for continued investigation.

Possible punishment decisions against infringement based on IP complaints can include an order to stop infringing activities, confiscating or destroying the infringing goods and promotional materials, or imposing of fines. Exhibitors that commit infringements twice will be banned from participating in further exhibitions.

Please note that when not personally present at the exhibition, foreign rights holders can entrust a local agent with the submission of complaints.

DOCUMENTS TO PREPARE

In order to take action against IPR infringements found at exhibitions, you should prepare the necessary documentation in advance. Exhibitions are usually short in length, which makes it difficult to supplement any missing documents on the spot.

The following documents are required in order to submit complaints to the Complaints Office at exhibitions:

1. A legitimate and effective certificates of IPR ownership as follows:

• Trademark: copy of any PRC trademark registration certificate or any PRC trademark confirmation certificate confirmed by means of the signature or seal affixed by the complainant and identity certification of the trademark owner (such as a Business Registration Certificate);
• Copyright: effective Copyright recordal notice (ideally PRC), identity certification of the copyright owner
• Patent: PRC patent certificate, text of patent announcement, identity certification of the patent owner, certification on the legal status of the patent

2. The basic information about the parties as suspected to have committed any infringement;

3. The reasons and evidences for any suspected infringement;

4. Where an agent is entrusted to file a complaint, the relevant Power of Attorney shall be submitted.

Please note that foreign rights holders may also be asked to provide official Chinese language versions of the relevant documents. Always have them prepared in advance.

Importantly, notice that if an agent is entrusted to act on behalf of the rights holder, a notarized and legalized Power of Attorney must be provided. The notarization and legalization processes can take several weeks. Take this into consideration when planning and preparing for exhibitions and trade fairs in China.

OTHER PRECAUTIONS

Apart from preparing for possible action against infringement at the fairs, IPR considerations should also affect the overall design of the exhibitor’s exhibition area.

Particularly where new designs and technologies are presented, it is important to be selective in how much is shown, and who it is shown to. Similarly, consider carefully what samples should be given to visitors. At present, it is common to set up enclosed booths, where visitors can be screened and the exhibits are not freely visible to all passers-by.

It is also important to have competent staff, including local experts, present at the exhibition and ready to deal with any arising issues promptly.

IPR notices can also be set up around any exhibition areas warning potential infringers of action against them and highlighting rights owned by exhibitors. This notice should be in several languages.

FURTHER INFORMATION

As from 2007, representatives of S&F Intellectual Property have been present at many events organized by Reed Exhibitions China Ltd. to advise on intellectual property matters on location. We welcome you to visit the S&F Intellectual Property booths and meet our experts.

We also invite you to contact us by email or telephone for all IP matters.

Contacts:

Mr. Edouard Schmitt zur Höhe (Beijing Office)
Email:edouard@sflaw.asia
Telephone:+ 86(0)10 8446 4788
Fax:+ 86(0)10 8446 4968

Ms. Chris Li (Shanghai Office)
Email:chris@sflaw.asia
Telephone:+86(0)21 6323 2619
Fax:+86(0)21 6323 2629

 

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