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China enhances trademark administration
By Qin Jize (China Daily)
Updated: 2004-08-09 14:15

Trademarks are brand names, which are often critical to the success of a business.

The trademark watchdog in China has stepped up efforts to improve the administration of trademarks, protect the exclusive right to their use, and is encouraging producers and operators to guarantee the quality of their goods and services in order to maintain the reputation of their brands.

The Trademark Law of the People's Republic of China, which was first adopted in 1982 and then revised in 1993 and again in 2001, meets the country's obligations under the GATT/TRIPS (The General Agreement on Tariffs and Trade/Trade Related Intellectual Property) Agreement and brings China up to date with the latest international developments.

The establishment of a robust intellectual property legislative structures, coupled with improvements to China's administrative trademark enforcement procedures, will assist the country's economic development by encouraging investment by foreign companies.

"The administrative trademark enforcement is very unique and effective in China," said Lu Heben, official with the Trademark Office under State Administration for Industry and Commerce.

There are hundreds of thousands of law enforcers under the State Administration for Industry and Commerce, who inspect and regulate the market everyday.

Once a trademark infringement is reported, they will confiscate the commercial goods and fine the law breakers.

"Our aim is to provide the business community with a greater sense of security to ensure their intellectual property rights can be adequately enforced both through existing administrative means and through easier access to the courts," Lu said.

Unlike other forms of intellectual property, trademarks can theoretically last forever if they continue to be used.

Some of them are passed from generation to generation and that is the case of what we Chinese call "laozihao" , which refers to old and well-known brands.

In the new market economy, Lu suggested those shops which have been well-known for dozens of years must seek market-oriented ways to protect themselves.

And the first step is to register their trademarks, for in today's society, the trademark is the all important passport to the competitive market.

However, some of those shops missed the chance, while others took advantage and registered those old and well-known brands.

Once registered by others, it is very hard for the old shops to get the brands back, said Lu.

Fortunately, article 31 of the Trademark Law of the People's Republic of China says: An application for the registration of a trademark shall not create any prejudice to the prior right of another person, nor unfair means be used to pre-emptively register the trademark of some reputation another person has used.

With the help of the existing law, some old and well-known stores are able to get back their brands but the law is still far beyond their reach.

The only effective way is to improve the consciousness of trademark, Lu said.

When talking about well-known trademarks, Lu said that specific protection for well-known brands has been incorporated into the law.

The factors that will be taken into account are the level of knowledge of the trademark by relevant consumers, the length of use, the amount of publicity given to the trademark in China, and the history of the trademark.

In fact, China has officially been accepting formal applications to recognize trademarks well-known for years, according to the concerning regulation issued by the State Administration for Industry and Commerce.

However, said Lu, the incorporation of specific provisions concerning well-known trademarks in the Trademark Law was likely to add weight to the arguments of foreign proprietors seeking protection of their trademarks on this ground.

Lu said that generally speaking, China's entry into the WTO and its consequent obligations to comply fully with the GATT/TRIPS Agreement, will place more responsibilities on the authorities to enforce protection.

The Trademark Office under the State Administration for Industry and Commerce released the list of 26 newly recognized well-known trademarks in June.

Among them, 11 were recognized in trademark opposition cases from September last year to May this year, and 15 were recognized in recent enforcement cases.

Eleven of them were registered by foreign enterprises, including six American, and one French, German, English, Swiss and Italian.

In another development, a large printer counterfeiting case was cracked down in East China's Jiangxi Province in late July.

The case, involving 3 million yuan (US$362,760), is the largest of its kind in the province.

The police raided four workshops in different locations and confiscated a large amount of fake printers with globally well-known brandnames attached, including Epson and Cannon.

Two suspects and several of their employees were captured on the spot. It was not a simple counterfeit case since the suspects had arranged a complete operation system from purchasing raw materials to selling.

Most counterfeits were sent to South China's Guangdong Province, from where they were transported to the different parts of the country.

Some of the counterfeits were even "exported" to other countries.

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