BIZCHINA / Patent
New alternatives
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)
(For more biz stories, please visit Industry Updates)
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