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By He Sheng (China Daily)
Updated: 2006-03-27 08:20

Trade fairs and commercial exhibitions are good venues for doing business, and they provide companies with an opportunity to market their products, look for potential partners or simply share information. This is particularly true in China, where trade fairs and exhibitions have long been one of the major places from which to market new products and technologies. These venues are also susceptible to intellectual property rights (IPR) infringement, and companies often find that products at exhibitions have violated other their valid patents, trademarks and copyrights.

In response to these problems, four ministerial authorities in charge of IPR protection and exhibition administration under the central government jointly issued IPR regulations on January 10 specifically aimed at exhibitions and trade fairs. The Measures Regarding Intellectual Property Rights Protection at Exhibitions and Trade Fairs went into effect on March 1, and will cover exhibitions, trade fairs, and conventions operating within the realm of trade and technology (see Article 2). These measures also cover patents, trademarks and copyrights, and are generally seen as an effective means of bringing different administrative bodies together to fight IPR violations.

Complaint centre

One of the guidelines calls for the establishment of complaint centres at exhibitions to handle any disputes regarding alleged IPR infringements. Article 6 states that events running three days or longer may set up a complaint centre in the exhibition venue, provided that the relevant administrative authority generally the Ministry of Commerce or one of its local offices deems it necessary. Complaint centres are to be staffed by government officials in charge of IPR protection, the exhibition administrative authority and the exhibition organizer.

Organizers of exhibitions that do not fall under this category are still required to post contact information within the venue for the IPR protection authorities.

Complaint centres will generally act as a liaison between the petitioners and the IPR protection authorities. All complaints and related evidence should be forwarded to the authorities within 24 hours. If an investigation reveals that IPR have been violated, the authorities can order the offending enterprise to stop. They can also confiscate or destroy the infringing articles and impose fines on violators.

Precautions

Complaint centres can provide easier and faster access to administrative solutions to IPR violations, but every party concerned should still take precautions.

Centres are authorized to prevent questionable articles from being displayed, for example. This might be an effective way to minimize the negative impact of violations at an ongoing exhibition, but the event organizer could end up exposing itself to lawsuits by the alleged violator if they are eventually found to be innocent.

The complaint centre, by nature, is a temporary entity set up by the organizer according to the said meatures. It is not an official government office with the power to enforce IPR laws. Rather, it can be viewed as an internal body of the organizer, and as such it is expected to close when an exhibition ends.

Innocent exhibitors might be justified in suing organizers for losses if their products are wrongly removed from an exhibition. It would therefore be wise for exhibition organizers to include a clause in their agreements with exhibitors allowing them to exercise the powers outlined in the said meatures

The onus of proof placed upon the petitioner, however, is by no means less stringent. With alleged patent infringements, for example, petitioners are required to submit:

i) Evidence of the petitioner's status as a lawful holder of the patent in question, in the form of a patent certificate, patent publication document, petitioner's identity certificate, or documents showing the legal status of the patent (normally, a receipt of the annual fees paid would suffice);

ii) Basic information on the alleged infringer; and

iii) Reasons of claim against an infringement and evidence.

This essentially means a company has to bring all documents showing its status as a lawful rights holder. Foreign exhibitors must also provide an official Chinese-language version of these documents. Whether such requirements will affect, and how quickly and efficiently infringements are handled remains to be seen.

Apart from the administrative solutions the IPR protection authorities provide, exhibition administrative authorities can also publish rogue exhibitors' names and ban them from future exhibitions if they are found guilty of a violation twice in a run. This provision will hopefully intimidate would-be violators.

Double-track procedures

Companies that find their IPR have been infringed upon at an exhibition may also choose to turn directly to the courts if they wish to, as IPR protection authorities' decisions are not final and they are subject to judicial review. But concerns may arise that the judicial relied is not always readily available before an exhibitio, which may last only several days, comes to an end. Several judicial interpretations passed by the Supreme People's Court on IPR case adjudication in 2001 and 2002, however, address this issue to a certain extent. A court can grant pre-litigation injunctive measures to stop imminent or ongoing IPR infringements, It is required to make an order within 48 hours of acceptance of an application. Injunctions are enforced immediately.

A bond is requested for these applications, but this is not required under the administrative procedures. Time limits are another important factor to consider. Applicants are required to file a suit within 15 days after an injunction is carried out. For punitive decisions by the IPR authorities, the time limit for seeking judicial review varies from 15 days (for patents and trademarks) to three months (for copyrights).

This article represents the opinion of the author, and does not necessarily reflect the views of this publication.

(China Daily 03/27/2006 page9)