Links » Crème » Piss-poor Media Coverage of Malicious Trademark Registration Rules

---

• Piss-poor Media Coverage of Malicious Trademark Registration Rules
• Mid-Week Links: New Year’s Eve party guide, another official undone by his mistress, and today is Mao Zedong’s 119th birthday
• Prominent Korean Scholar Says DPRK Provocation Is Imminent
• Father Of Murdered Daughter Upset With Court Ruling Runs Down 23 Middle School Students

Piss-poor Media Coverage of Malicious Trademark Registration Rules Posted: 26 Dec 2012 06:08 AM PST Apologies for a long, cranky post during the holidays, but this topic deserves some attention. As you know, I've been writing about trademark squatting and other registration issues for a long time, and the subject has been particularly hot in the past couple of years with disputes involving famous brands and names like iPad, Hermes, and Michael Jordan. However, we cannot simply lump all of these cases together, label them as trademark infringement or trademark squatting, and look for a quick legislative fix. That being said, it appears as though China will be addressing the issue of malicious registration in an amendment to the Trademark Law; Xinhua reported the news earlier this week: The top legislature on Monday began deliberating a draft amendment to the Trademark Law that would prevent the malicious registration of trademarks that are already in use. "Applications should not be accepted if the applicants know beforehand that the trademarks to be registered are already in use by other companies," says the draft, which was submitted to the bimonthly session of the Standing Committee of the National People's Congress (NPC) for review. The draft is intended to curb the malicious registration of trademarks by individuals who have insider knowledge of other companies using said trademarks. OK, a bit of explanation is in order. China's current trademark law says that between multiple applicants, the first party to apply for trademark protection wins. This is the so-called "first-to-file" concept. There are, however, some exceptions to the rule, including special protection for well-known trademarks and "bad faith" registrations. As to the latter, if it can be shown that the registrant had knowledge of the mark prior to the application, then a bad faith argument might be successful. Note that both arguments may be used with respect to both trademark oppositions (during the application process) as well as cancellations (after the mark has been registered). All right, so why am I disgruntled? Two things: one a minor irritant, and the other a substantive criticism. I'll start with the minor issue first and pick on Reuters, which ran a story on this issue with the following lede: China plans to change the law to crackdown on "malicious" trademark registrations, state media said on Monday, after a series of cases in which well-know [sic] international brands and individuals have had their names or copyright misused. Three problems with that sentence alone: 1) the typo; 2) the unforgivable sin of mixing up copyright and trademark (the above was the first of two such references in the article); and 3) the substantive issue (I'll get to this in a minute). I know I tend to go on and on about this, but is it really so hard to grasp that patents, trademarks and copyrights are different things? Are they conceptually that difficult to distinguish? Do editors actually do anything these days aside from coming up with inaccurate, inane but pithy headlines? OK, rant over. On to the real problem. The Reuters coverage, which as usual was aped by some other journamalists, suggests that this proposed amendment is a response to recent high-profile trademark cases, including (they say) Hermes, iPad and Michael Jordan. I find this rather odd. Both the Hermes and Michael Jordan cases involved trademark squatting. Hermes lost (I assume) because of evidentiary problems, not because the law does not set forth a procedure by which the owner of an unregistered mark can mount a cancellation action based on well-known mark status. In the Michael Jordan case, which is ongoing, there is an added wrinkle of name rights, but even so, Jordan should not have too much trouble proving his fame at the time of the application. The iPad case had nothing to do with trademark squatting, and the registration by Proview pre-dated the launch of Apple's iPad tablet. Using the Apple-Proview dispute as an example of trademark squatting clearly reveals the Reuters reporter's ignorance (in addition to the copyright references, that is). CNET also ran an article on this topic, along with a photo of an iPad, with a really inexcusable subtitle/blurb: "China says it will make a greater effort to stamp out companies such as Proview, which sued Apple earlier this year for the use of the iPad name." {sigh} Of the three cases cited by Reuters, one involves name rights, another is a straightforward well-known mark case, and the third was a contract dispute. I'm at a loss to explain how any new set of rules could apply to all of those situations. Judging by the headlines, which include language like "China to crack down on," "China to curtail," and "China to stop" trademark squatters, it sounds like China law has a huge hole in in that needs to be filled. Nonsense. The legal system here has dealt with malicious registrations for years; it's not perfect, but neither is it useless or nonexistent. This begs the question: just what are we likely to see in these amendments? I don't think we're going to have any new causes of action; again, the law already allows brand owners to assert well-known and bad faith arguments during cancellation and opposition proceedings. This hint in the Xinhua article is quite odd: The amendment also offers protection for renowned trademarks, giving their owners the right to ban others from registering the trademarks or using similar ones — even if such trademarks are not registered. In such a case, the trademark in question must be determined to be well-known, with results to be valid only for that specific case, the amendment states. What's the problem? Well, that's pretty much just a restatement of the current law as it is today. Hey, maybe the "amendments" will be nothing more than a legislative reminder to everyone out there that these issues have already been addressed in past trademark law reforms. This isn't to say, though, that winning such cases is always easy. Hermes, and many others, have lost because they were not able to prove well-known mark status at the time of registration. I suppose evidentiary standards could be loosened up a bit with some new rules. But that's hardly a game changer. With respect to bad faith, these cases are also often difficult to prove. Just look at the current fight involving Tencent and the "微信" (wei xin) mark. The squatter in that case filed an application just one week prior to Tencent's! This was before the product launch, so any well-known mark argument will be extremely difficult to win. That leaves a bad faith argument, which the suspicious timeline definitely points to; whether Tencent has enough evidence to make its case remains to be seen. This may be one of those "insider knowledge" type cases referenced by Xinhua. On the other hand, Xinhua tells us that the new rules would "prevent the malicious registration of trademarks that are already in use," so it's not even clear that these amendments would apply to the 微信 dispute. They definitely would have had no bearing at all on the iPad case. Let me attempt a summary and exit here. Trademark squatting is a problem, and it looks as though the government wants to tighten up some rules in that area. It isn't at all clear, though, that this is being pushed because of a few high-profile foreign-related {cough cough conceit cough} disputes, one of which is not even remotely applicable. Moreover, as the law already addresses malicious trademark registrations, this is not ground-breaking legal reform here. And it has nothing at all to do with copyright! © Stan for China Hearsay, 2012. | Permalink | No comment | Add to del.icio.us Post tags: Hermes, ipad, proview, Tencent, trademark infringement, trademark registration, trademark squatting

Mid-Week Links: New Year’s Eve party guide, another official undone by his mistress, and today is Mao Zedong’s 119th birthday Posted: 26 Dec 2012 05:00 AM PST Chongqing has a pretty amazing subway station, via Sina I think we know the "real you" well enough, sir. "The deputy secretary-general of Zhanjiang City in Guangdong Province has been removed from his post after local Party discipline watchdog confirmed online allegations about his having a mistress and a second child in violation of China's one-child policy. // Zhanjiang's Party discipline inspection committee confirmed the online allegations against Deng Wengao and also opened a graft investigation in his case, Yangcheng Evening News reported yesterday. The discipline watchdog released no other details. // Deng's only response, the paper reported, was to say, 'You can go around and know the real me.'" (Shanghai Daily) Another Mo Yan piece from Perry Link. "The awarding of the 2012 Nobel Prize in Literature to the Chinese novelist Mo Yan has given rise to energetic debate, both within China's borders and beyond. Earlier this month, ChinaFile ran an essay by Chinese literature scholar Charles Laughlin called "What Mo Yan's Detractors Get Wrong." That essay was, in large part, a critical response to an earlier piece in The New York Review of Books by Perry Link. We invited Link to respond." (Perry Link, China File) 355 suspected child abductors arrested, 89 children rescued. "A national operation in China has busted nine child abduction gangs, arresting 355 suspects and rescuing 89 children. // China's Ministry of Public Security said Monday that it conducted the nine-province operation in December after receiving reports of child abductions from southern China's Fujian and Yunnan provinces." (AP) "Why are Chinese versions of Santa Claus almost always playing a saxophone?" (Max Fisher, Washington Post) Corollary: "When the article was translated into Mandarin for Chinese Web portal Sina.com, it attracted thousands of comments trying to puzzle it out. The most popular theory seems to be that Santa is perceived as Western, cool, and a bit romantic, so the saxophone fits. Christmas in China is more about having fun with friends or a romantic date than it is about reverence and family as in the Western world. // I would like to add the theory that President Bill Clinton may be partly to blame for this trend." (Washington Post) Mao Zedong's 119th birthday is today. "In Shaoshan, countless people sang "The East is Red" together to mark Comrade Mao Zedong's 119th birthday, notes People's Daily online. Another activity on December 25 was a fitness marathon, in reply to Mao's call to 'develop sports to strengthen the people's physical shape.' Nearly ten-thousand people from provincial departments colleges and universities, and from all over the province (i. e. Hunan Province) reportedly participated." (Just Recently) Baseball in China is good, though it doesn't stand much chance for development now that it's no longer an Olympic sport. "The Chinese mainland welcomes the proposal to establish a cross-Strait professional baseball league with Taiwan, a mainland spokeswoman said Wednesday. // Fan Liqing, spokeswoman for the State Council's Taiwan Affairs Office, said the mainland is willing to increase cooperation and exchanges on athletics with Taiwan, where baseball has a longer development history." (Xinhua) More vehicle recalls. "Jaguar Land Rover China will recall 337 cars due to substandard fixings in their rear calipers and steering boxes, the country's consumer quality watchdog said on Tuesday." (Xinhua) Mao Zedong's birthday interlude: Finally… Party guide to New Year's Eve in Beijing. (the Beijinger) "China is building a motorway across the Tibetan plateau. For some, reaching Lhasa by road is the ultimate dream." (The Economist) Bike ride from Hong Kong to Paris. (SCMP) More Mao festivities. (Global Times) Finally, finally… Shanghai skyline, by Harvey (@JapanNewbie):

Prominent Korean Scholar Says DPRK Provocation Is Imminent Posted: 25 Dec 2012 11:04 PM PST Andrei Lankov, professor at Seoul's Kookmin University and one of the world's foremost North Korea experts (he blogs in Russian), has some chilling words about what the new year might bring for Korean relations. As quoted in The Globe and Mail: "The North Koreans will want to test [Ms. Park], maybe an overland intrusion, an artillery attack, shooting down an airliner – God knows what – and if she overreacts it could lead to a chain of escalations," said Andrei Lankov, an expert on North Korea at Kookmin University in Seoul. "We'll see newspaper headlines like 'Korea on the brink of war' with big pictures of smoke rising and soldiers rushing to the front line." Prof. Lankov feels that some kind of North Korean provocation is almost a certainty in the first few months of 2013. What's unknown is what Ms. Park will do about it when the time comes. Ms. Park is Park Geun-hye, South Korea's first female president, elected last Wednesday. Her father, Park Chung-hee, was a "Cold War strongman," according to Time, and her mother, Yuk Young-soo, was killed by North Korean agents. (Five years later, her father was also assassinated in the infamous 10.26 incident.) Lankov again: "The question is who will control her [North Korea] policy," he added. "She's likely to rely on experts, and a lot of the people in her camp are crazy hardline ideologues." There is a China connection, of course. As Oh Sung-il, a defector living in Seoul, put it: "The system is not changing, but the young people are changing," he said. Could that bring about change inside North Korea? "If China changes [its policy towards North Korea], these young people will be powerful within five years," he added. "If China doesn't change, it will take much longer." Remember when North Korea successfully launched a three-stage rocket into space earlier this month, and the happiness they tried to tell us the accomplishment engendered? Scientific advancements are most apparent in the military, and it's not hard to imagine that North Korea's leaders believe an armed conflict is just the thing to lift their people's spirits. For the sake of the rest of us, we hope their neighbors to the south don't feel the same way. Plot set for conflict in tale of two Koreas (The Globe and Mail)

Father Of Murdered Daughter Upset With Court Ruling Runs Down 23 Middle School Students Posted: 25 Dec 2012 07:40 PM PST On Monday, a father upset over a court's decision to not give the death sentence to four men who murdered his daughter took his anger out on middle school students on lunch break. Yin Tiejun, 48, drove a car laden with firecrackers into Fengning No. 1 Middle School in Fengning, Hebei province around noon. Xinhua has the story: Police said Yin lit a bottle of diesel, trying to burn down the car after hitting the students. Police officers, who put out the fire, found a gas tank and firecrackers in the trunk of the car. However, Yin said during interrogation that these were not for an attack. Police cleared Yin of driving under the influence of alcohol or drugs. They said he was upset with a court ruling that did not sentence all his daughter's murderers to death. Yin was detained on charges of endangering public safety on Tuesday. Ten students were hospitalized, including one with a fractured skull. Thirteen students suffered minor injuries. Associated Press adds these details: The local Fengning county government confirmed the incident in a written statement and said Yin was driving a Geely sedan. Citing eyewitnesses, the Beijing-based state-run Jinghua Times said the accident occurred when students were leaving school for noon break and that the car accelerated and knocked down students, many of whom were on bikes. Yet again, we are reminded that violence can occur anywhere — schools not excluded. Chinese man hits students with car, 13 hospitalized (Xinhua) Chinese man drives car into students, injuring 13 (AP)

You are subscribed to email updates from Update » Links » China 精文 Crème To stop receiving these emails, you may unsubscribe now.	Email delivery powered by Google
Google Inc., 20 West Kinzie, Chicago IL USA 60610