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"The truth is rarely pure and never simple"

-Oscar Wilde

Customs on intellectual property violation

In response to an increasing number of goods confiscated by Customs for intellectual property right infringement, Legal Daily reports that Customs has issued an announcement detailing regulations on manufacturers of goods destined for export addressing intellectual property infringement issues:

1. Manufacturers are now responsible for checking on intellectual property rights before accepting an order. If Customs determines that manufacturers have infringed intellectual property rights, the goods will be confiscated and the manufacturing company will be fined. Moreover, the manufacturer will be criminally liable for the infringement.

2. Customs will impose obstacles for companies known to violate intellectual property rules. Customs ranks manufacturers from grades A through D. A company with grade A has no history of intellectual property infringement and goods produced by an A-rated company will be rapidly cleared through customs. However, should Customs discover three instances of intellectual property infringement in a single year, an A-rated company can be immediately downgraded to D-grade and face substantial delays in the clearance of their goods for export.


Source: http://www.legaldaily.com.cn/0705/2008-05/26/content_865194.htm (Chinese)

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China News 0 Comment May 28, 2008, 2:28 pm

PSA - Earthquake Relief

The following organizations are currently accepting donations in support of earthquake relief in Sichuan:

Red Cross Society of China

Oxfam Hong Kong

Mercy Corps

World Vision

Pandas International - relief for the veterinarians, researchers, keepers, stranded up in the mountains near the epicenter of Dujiangyan.

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China News 0 Comment May 15, 2008, 8:49 am

Early advice is good advice

All readers of this blog should be aware we are one of the foremost intellectual property law firms in China. I do not say this for self-promotion but rather because I want talk about one of the most common things we see in our daily practice ¨C the failure by organizations to register their trademarks in China.

We are constantly engaged by clients to prevent abuses of their trademarks in China. Unfortunately, many clients assume that, since they have registered their trademarks in other jurisdictions, their trademark is protected in China. We have had clients who have engaged in business in China for several years based on this assumption. This becomes a significant problem when someone else decides to profit from the client¡¯s ignorance and registers the mark. Usually, the sole reason why these people register trade marks is so that they can blackmail the legitimate business.

If we become aware of this early, there are legal mechanisms available to remedy the situation ¨C this comes at cost that could have easily been avoided. However, worse is when considerable time has lapsed and the client¡¯s rights are barred by statute. This makes it extremely difficult to achieve an effective solution for the client that does not involve purchasing the trademark from person who has registered it, and nobody likes meeting a blackmailers demands.

This reiterates the importance of obtaining comprehensive legal advice prior to venturing into China. Not considering intellectual property issues when establishing your presence will leave you open to a sea of troubles at a later date; troubles that could have easily been avoided by seeking some prudent legal advice.

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China Law 0 Comment May 7, 2008, 4:35 pm

NDRC to Post Policy Information Online

Consistent with its aim of improving transparency in the government's policies, the National Development and Reform Commission has launched an initiative to post government policy on its website (Chinese). Any information not available on the website can be requested by submitting the NDRC's information request form (Chinese), which the NDRC guarantees will be responded to within fifteen business days.


Source: Xinhua/China Daily

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China Law 1 Comment May 5, 2008, 5:10 pm

Cafferty and CNN

A controversial issue in the last few weeks in China has been the comments made by CNN commentator, Jack Cafferty, where he labeled the Chinese as ¡°thugs and goons¡±. In late April a group of Beijing lawyers instituted legal proceedings claiming that Cafferty¡¯s comments ¡°seriously violated and abused the reputation and dignity of the plaintiffs as Chinese people, and caused serious spiritual and psychological injury to the plaintiffs.¡± MSNBC

Under China¡¯s case management system the case still needs to be accepted by the court. Many people have laughed off the claim as a frivolous suit with little grounds of success ¨C a mere publicity stunt. However, those with a more thorough understanding of Chinese defamation law recognize that it is not as hopeless as it first seems.

Article 101 of the General Principles of the Civil Law provides that insult or slander that harms individuals or citizens is prohibited. The Explanation of the Supreme People¡¯s Court Regarding Some Questions in the Trial of Cases Concerning the Right of Reputation outlines three situations in which defamation will be found: (1) where the content of news reports is ¡°seriously mistaken¡± or, in the case of critical news reports, where the ¡°basic content¡± of such reports is incorrect, and such mistakes or inaccuracies result in harm to reputation, (2) where insulting or slanderous language results in harm to reputation, or (3) where unauthorized revelation of personal details causes harm to reputation

Accordingly there is no doubt that a person can bring a claim in respect of the publication of false and derogatory material in China. Further, in the case of a claim based on points 2 and 3 above, it appears that the truth of the comments will not provide a defense to the claim.

The interesting issues in this case, if it is accepted and ultimately litigated, will be whether expressions of opinion can infringe Article 101, and whether an individual has standing to bring a claim where the expressions are directed at a large group. Chinese

Chinese law does not provide a fair comment defence to defamation and, as such, the prevailing view is that an opinion may be defamatory for the purposes of Article 101. Whether an individual can bring a claim for defamation of a group is not clear.

If this case is accepted by the court (it may not be for political reasons) then it may answer some interesting questions about the state of China¡¯s defamation laws.

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China Law 0 Comment May 5, 2008, 12:07 pm