Intellectual Property Law

China's Chief Justice Discusses China IP Law at Microsoft Symposium

By Michael Atkins

Here’s one more post from last week’s excellent symposium on “Trademark Law and Its Challenges in 2011' (previous post on Prof. Tom McCarthy’s keynote speech here).

The program opened with an introduction to Chinese IP law from none other than Judge Kong Xiangjun (left), Chief Justice of the Intellectual Property Tribunal of China’s Supreme Court. That’s the highest court handling civil IP cases. Suffice it to say, Judge Kong represented quite an authority to provide such a briefing.

Here are a few things I learned:

• China’s civil system is a bit different than ours. Two trials are standard. The first starts at a given level of authority, with a second trial at a higher level, which provides the binding decision. The complexity and amount in controversy determine which level hears the first trial. An unhappy litigant can appeal the second court’s decision. Each case is decided by at least three judges.
• The IP Tribunal handles both second trial cases and retrial cases. Each year, it hears approximately 10 second-trial cases and more than 300 retrial cases.
• The number of IP cases in China has increased dramatically. From 2009 to 2010, the percentage of IP cases increased by 36.3%. Copyright cases make up half the case load. Each year, the court hears 7,000 trademark and 8,000 patent cases. It also decides cases involving antitrust and unfair competition.
• Only 5% of China’s IP cases involve foreign companies, most of which involve a foreign entity suing a Chinese entity, though there are increasing cases of Chinese entities suing foreign entities. Most IP cases involve disputes between Chinese companies.
• The volume of trademark registrations has increased. Indeed, the increase is probably the world’s largest. China also sees more trademark disputes each year, which corresponds with its increased protection of marks.
• Chinese lawyers, academics, and those in industry have begun discussing the need to revise China’s trademark laws again. Such laws have been revised three times since the 1980s.
• One thing revisions would seek to improve is the length of time needed to register a trademark. There is a big backlog of applications, which causes complaints. China wants a simpler and more efficient system for registering marks.
• China believes it has a problem with malicious individuals who preempt the registration of third parties’ trademarks. People want that to change.
• People are also talking about increasing trademark protection. Currently, it’s hard to prove plaintiffs’ damages and defendants’ profits. People are calling for a stipulated amount of damages to further protect trademarks.
• These issues are still in discussion. It’s unclear how or whether revisions will be made.

 Photo credit: China Daily

Full post as published by Seattle Trademark Lawyer on February 07, 2011 (boomark / email).