Intellectual Property Rights of Foreign Companies Entering the China market

Update time:2016-01-27  source:

For foreign companies importing goods and services into China, their trademark is usually synonymous with the brand of their goods and services. For example, the trademark of International Business Machine is “IBM”. To consumers, this trademark represents world-renowned IT products with particular qualities. In China, although companies may use an unregistered mark (provided it does not infringe other people’s lawful rights), exclusive right of use is only given to those marks that are registered with China’s Trademark Office. In other words, only the owner of a registered mark has the right to request the relevant administrative or judicial authorities to stop unauthorised use of the mark by others. For unregistered marks, only those which have gained a fairly high degree of reputation in China may be afforded some protection by virtue of provisions on well-known marks in the Trademark Law or the provisions in the Anti-Unfair Competition Law. For instance, the trademark of Sotheby’s is not registered in China, but the Chinese court has held that the trademark “Sotheby” is an unregistered well-known mark and trade name. Thus, Sichuan Su Fu Bi Auction Company Limited was found to have committed trademark infringement and unfair competition because “Su Fu Bi” (苏富比) in Chinese represents the same characters as used by Sotheby’s.


Copyright. Foreign companies entering the China market can also be protected by copyright. As an illustration, Disney’s cartoon characters Mickey Mouse and Donald Duck are protected under copyright in China. These cartoon characters are very well-known and popular in the mainland and people who come across Mickey Mouse or Donald Duck would associate them with their creator, the Disney company. For Disney, such association is an invaluable asset.


Patent right. Patent covers inventions, utility models and designs. While invention and utility model patents grant protection to product technologies, design patent refers to the appearance of a particular product. Technology patent protects the inventions and research and development achievements of an enterprise and prevents them from being used illegally. Rights owners can produce and sell patented goods or transfer patented technologies on the market for economic gains. When consumers identify the design of a product with the brand of the product, the design is deemed an intellectual property warranting protection.


Trade name rights. Every enterprise is identified by its trade name. Since a trade name directly indicates the identity of an enterprise, many enterprises use their trade names as brands to attract consumers to choose their goods or services.


Domain names. A domain name (e.g. xxx.com) is actually a symbol used to indicate an address on the Internet. Every domain name is unique globally. With the development of the Internet, it is increasingly necessary for brand owners to use the Internet to reach out to their customers and potential customers. Therefore, domain names are also foreign companies’ important intellectual property requiring protection.


Apart from the above, civil rights such as rights of personal names and portrait rights are sometimes connected to brands imported by foreign companies into the Chinese mainland market. For example, the use of one’s name or portrait as a brand is regarded as an exercise of a person’s right in his name or portrait.

 

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