由Maarten Roos

仿冒的持续的弥漫在中国是法律的不仅问题，而且一个执行。 当中国的法律和章程依照关于知识产权(旅行)时和其他宽被接受的国际原则的与换相关的方面的协议，中国的保护机制的某些部分证明了无效。 共同的例子是高标准为了作赝品者的犯罪责任，证实奸诈注册的证据的高负担和困难能证明损伤在民事诉讼。 另一方面，它非常清楚警察、行政管理负责人和法院经常缺乏资源、知识或者决心有效地与违反交战。

中国的自己继续的发展和较小程度国际压力，将逐渐导致改善关于上述问题，但这不是处理各自的知识产权(IP)所有者能影响。 然而所有者能保证他们有专有权对他们的IP在中国根据中国法律，并且最佳的决定是否可以迅速做出采取行动反对被察觉的违反。 这样保护，通常低廉和很少费时，是最基本的元素到组织的IP战略。

辨认IP经理

每个组织应该任命某人到同等的IP兴趣。 Whether it is an IP specialist, lawyer or manager, at least one person needs to maintain a clear perspective on the organization’s IP interests and rights, collect information on potential infringements, and be able to respond immediately in case of need.

Responding quickly and decisively to potential IP infringements is often a crucial part of the success of an IP enforcement action. Therefore the most effective IP Managers are people with authority, who are able to reach decision makers quickly. They build communication channels with sales persons and others in the organization to learn of infringements. And they ensure that a law firm is retained to support enforcement actions at short notice, with a valid Power of Attorney and relevant IP registration certificates in place.

Identifying your IP Portfolio

IP rights gain value during the course of one’s business. A regular review of an organization’s intellectual property to identify which are sufficiently valuable to protect will prevent an organization from being caught off-guard.

Logical moments to conduct such an IP audit are when a foreign company enters a new market or when it establishes a subsidiary. Thus foreign companies investing in China should make an IP review part of their due diligence. Furthermore, as China is a fast-developing market place, a yearly review is recommended. During this review, the IP manager should identify the old and new IP that the organization (and perhaps its affiliates) owns in China, and whether the corresponding rights are registered (in case of trademarks and patents). If not, then the IP manager should be able to proceed with registration at short notice.

Among the IP that should be reviewed are:

(1) Brand names, either developed by the organization or its affiliates abroad, or even those that have developed in the market – e.g. a Chinese version of an existing international mark;
(2) Domain names which correspond to the trade name and/or above brand names (especially those ending with .com, .cn and .com.cn);
(3) Patents, which are technical inventions developed by the organization or its affiliates abroad;
(4) Specific designs of industrial products which are distinctive and may be easily copied
(5) Copyrights, such as software, catalogues, webpages and articles; and
(6) Trade secrets, undisclosed technologies, confidential business information and other sensitive data to which the organization has rights through contractual obligations of employees or commercial counterparts.

All the above can be protected under Chinese law. However trademarks and domain names must be registered before another party does so, and for a patent filing to be granted the technique or design must be either novel (not publicized elsewhere before the filing date), or must be applied for within a certain period after the corresponding foreign application. This makes the timing of such applications crucial.

Registered trademarks, copyrights and designs may also be recorded with the Chinese customs authorities. As a consequence, if customs finds goods that are infringing on recorded rights, it will notify the owner immediately so that the latter can take action. If they know of a shipment of counterfeits, owners of recorded rights may also notify customs directly.

Maarten Roos, Wang Jing & Co

This is the first part of the article Protection vs. Enforcement. Next week we will publish the second part.