1. Crystal J. Chen Admitted in New York State Admission Pending in Beijing, PR China IP Enforcement in China & Taiwan
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Editor's Notes
Coordination with different agencies
AIC is the largest agency to effectuate positive enforcement of trademark rights. AIC has the ability to confiscate and destroy infringing goods and the tools used to produce them. AIC takes action by (1) the filing of a complaint by a trademark owner or their authorized representative, (2) takes the initiative to investigate and contact the trademark owner to determine
Retrial, convened after a final ruling is made 31 high courts have discrepancies and inconsistencies in hearing criteria
The number proves that Chinese legal and judicial systems are more and more demanded by the IP owners. In recent years, there are 30% increase.
1. Find a safer city 2. The court can grant a preliminary injunction only if (1) the patent owner has evidence proving an infringment has occurred; (2) irreparable damages are likely if the infringement is not stopped immediately; (3) the patent owner has submitted the appropriate deposition Find a court that is historically less strict in issuing an injunction.
The Administrative fine, some may consider it as a cost for doing business. And each AIC has its geographic limits which cannot go far beyond it.
Effective as of April 1, 2010.
China’s Customs allows IPR recordation, including patent, trademark and copyright
1. Not affect the auction practice for those exported infringing goods. Also, the Customs still can transfer the confiscated goods to non-profit organizations for use in the public welfare. IP owners who would like to buy out, the Customs can transfer the confiscated goods to the IP owners with consideration 2. Allow IP owners to amicably settle the issue with the counterfeiter before Customs renders a decision. 3. Infringer being penalized, instead of goods simply being confiscated
A waste of Customs resources. Don’t become a black list.
1.The Customs border measure is specified under the Proposed Trademark Law Amendment. If any goods suspected of infringement are located, the customs will notify the trademark owner or agent, who must show up at the customs office to verify the goods within one business day. In the meantime, the Customs should notify the importer/’exporter to provide documents proving authorization within 3 working days. (and can be extended) - With or without right, the right holder can pay the bond to request a detention, or apply for preliminary injunction at the court – not do so, release the goods - After detention request, the right holder shall file a lawsuit within 12 days and notify the Customs. – not do so, abolish the detention and release the goods. (may extend another 12 days)
1. the function of which is covered by (1) “ Operational Directions for Customs Authorities in Implementing Measures for Protecting the Rights and Interests of Patent, Trademark, and Copyright ,” and (2) “ Customs Anti-Smuggling Act ” Since TEMS was abolished, …..Not affect random inspection for importing goods
After detention request, the right holder shall file a lawsuit within 12 days and notify the Customs. – not do so, abolish the detention and release the goods. (may extend another 12 days)
As for the issuance of preliminary injunction, the IP Court tends to be very prudent, it requires the applicant to prove the likelihood of infringement to the level of “likelihood of success on the merit” as it generally required by the U.S. courts. Therefore, it is hard to obtain an injunction, and thus very hard to get the Customs detention.
If the foreign court does not have a jurisdiction over the case as determined by the law in Taiwan. Normally do not challenge, as long as it is not subject to an exclusive jurisdiction of courts The defendant must be served a reasonable notice to commence a litigation in a foreign country. Can’t use personal delivery or mail delivery, must serve through judicial assistance in order to have a default judgment be recognized. However, service is valid if the service agent is recognized by the law of the foreign court for the service in that country. If the parties involving Taiwan choose a foreign forum in their agreement, and that foreign forum recognize the service agent, then the parties should make it in writing in their agreement. Discuss on the next slide The Supreme Court ruled that there is judicial reciprocity if it can be reasonably expected that the court of foreign country will recognize Taiwan Judgments. U.S. has no such a problem. China’s civil judgments can be enforced in Taiwan too.
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