由Maarten Roos

仿冒的持續的瀰漫在中國是法律的不僅問題，而且一个執行。 當中國的法律和章程依照關於知識產權(旅行)時和其他寬被接受的國際原則的與換相關的方面的協議，中國的保護機制的某些部分證明了無效。 共同的例子是高標準為了作贗品者的犯罪責任，證實奸詐註冊的證據的高負擔和困難能證明損傷在民事訴訟。 另一方面，它非常清楚警察、行政管理負責人和法院經常缺乏資源、知識或者決心有效地與違反交戰。

中國的自己繼續的發展和較小程度國際壓力，將逐漸導致改善關於上述問題，但這不是處理各自的知識產權(IP)所有者能影響。 然而所有者能保證他們有專有權對他們的IP在中國根據中國法律，并且最佳的決定是否可以迅速做出採取行動反對被察覺的違反。 這樣保護，通常低廉和很少費時，是最基本的元素到組織的IP戰略。

辨認IP經理

每個組織應該任命某人到同等的IP興趣。 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.