Domain Name Registration and Protection in China

matrix-2502958_1920Today’s blog post on domain name registration and protection in China has been kindly shared with us by China IPR SME Helpdesk external expert Daniel Albrecht from Starke Beijing. The article first appeared on the Starke Beijing website. In this article, Mr. Albrecht gives a comprehensive overview of how and why to register and protect internet domain names in China. 

With the development and usage of World Wide Web, mobile internet and mobile phones, the Chinese E-Commerce market got an enormous growth. According to “Chinese E-Commerce Market Data Monitoring Report 2016”, the E-Commerce transaction amount reached 22.97 trillion RMB in 2016.

For both Chinese and international enterprises, to join this market is a trend but also a necessity. As one of the mainly path for entering E-Commerce market, the meaning of domain name registration is therefore getting more and more important.

Worldwide exist 330 million registered domain names currently. In China is the number in the amount of 50 million. China is becoming the second largest domain name market in the world. This market is interesting for both domain name service providers and enterprises as domain user. The foreign providers need to know the policy and rules for running a domain name business in China. And how to register and protect domain name in China is now an important issue that the enterprises should pay attention to.

Chinese government is trying to improve their laws and rules of internet administration service. The Ministry of Industry and Information Technology of the PRC (MIIT) released a new version of the “Measures for the Administration of Domain Names on Internet” on September 1, 2017. These new measures took effect on November 1, 2017. The rules should further promote the foreign investment to come into the Chinese registration market on one hand; on the other hand encourage the user to choose the registrar, which is a in China registered legal person. At the same time the rules accelerate also the development of domain name with Chinese characters. Continue reading “Domain Name Registration and Protection in China” »

IP Considerations in Fashion, Design and Lifestyle industry in South-East Asia

fashion2In today’s blog post we are discussing IP protection in fashion, design and lifestyle sector, as this sector is offering more and more business opportunities to  European SMEs in South-East Asia. You’ll learn how to protect your brand in South-East Asia as well as how to protect your design and other creative works.  

The fashion, design and lifestyle sector is a significant driver in South-East Asia’s creative economy. The global fashion industry has traditionally been one of the most lucrative industries, with sales generated in the trillions globally. This is especially true in South-East Asia, where consumers gravitate towards fashion and do not shy away from paying top dollar for luxury fashion products. Singapore, for instance, holds a 2% share of the world apparel market and their fashion industry generates sales of USD3.6 billion[1] (approx. EUR3.1 billion). In Indonesia, it contributed about USD49.3 trillion (approx. EUR42.8 trillion) to the GDP, with the fashion industry alone accounting for 28% of total earnings in the creative economy[2].

Among the South-East Asian countries, the design and lifestyle industry is classified as emerging industries especially in Singapore where, an ad hoc organization, the Design Singapore Council, was established in 2003 to help develop the nation’s design sector, following the Economic Review Committee’s report which identified the creative industry as one of the three new sectors for economic growth of the country.  Similarly, the Thai government is making investments to further strengthen its fashion industry, as for example it is actively supporting the “Bangkok Fashion City” project launched in February 2004, which aims to turn Bangkok into a fashion hub in the South East Asia region and into a world fashion centre.[3]

Given the potential for growth in the fashion, design and lifestyle economy in the South-East Asia region, there is tremendous value in understanding how SMEs can protect their intellectual property in the region. Even though, IP laws and regulations have been considerably improved in most South-East Asian Countries, counterfeiting and other IP violations are still commonplace in the region and thus a comprehensive IP strategy is needed before starting business in the fashion and lifestyle industry in South-East Asia. Continue reading “IP Considerations in Fashion, Design and Lifestyle industry in South-East Asia” »

Marking Your Territory: Choosing a Trade Mark in China

trademarkChoosing a Chinese equivalent for your brand name can oftentimes be a challenging task.  In today’s blog post we’re taking a closer look at what you need to know when choosing your trade mark in China.  We are using the famous New Balance case to offer some tips on how to choose a good trade mark in China. 

In one of the most famous trade mark infringement case, New Balance Trading (China) – the Chinese affiliate of US sports footwear brand, New Balance – was ordered by a Guangzhou court to pay RMB98 million in compensation (equivalent to approximately EUR14.3 million), and to publicly apologise to Chinese businessman, Mr Yuelin Zhou, for trademark infringement. The trade mark in question was “新百伦”, or “Xin Bai Lun”, a Chinese transliteration of “New Balance”. This case serves as a sharp reminder of how vital it is for foreign brands to register a Chinese trade mark in China, and how cutting corners may result in high financial penalties later down the line. This article takes a look at how to best choose a Chiniese name for your brand when doing business in China.

Chinese consumer culture: why choose a Chinese name?

China possesses one third of the world’s consumers and is the largest market for luxury goods in the world. Between 2010 and 2014, European Union (EU) imports to China grew by around 12% on average annually.

Taking time to carefully consider a Chinese trade mark when importing a brand to China is important for several reasons. Firstly, because foreign brands or company names are often difficult to pronounce – or carry different meanings – in Chinese. If a company fails to provide its own Chinese name or trade mark, Chinese consumers will choose their own. Secondly, in a country where each character holds its own distinctive meaning, the characters used in a foreign branded trade mark, along with the sound, tone and look of Chinese characters, can significantly impact a brand’s reputation. Continue reading “Marking Your Territory: Choosing a Trade Mark in China” »

China – Pak de Copycat

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Today’s blog post has been kindly drafted for us by China IPR SME Helpdesk external IPR expert Mr. Jurjen Groot and published in Dutch in the December 2017 issue of Globe Magazine

De blog post van vandaag is geschreven door de China IPR SME Helpdesk IP expert Meneer Jurjen Groot en werd eerder gepubliceerd in de December 2017 uitgave van Globe Magazine voor Internationaal Ondernemen. Het artikel “China – Pak de Copycat” gaat dieper in op de bescherming van intellectueel eigendom van Nederlandse bedrijven in China met onder andere tips & tricks met betrekking tot E-commerce, de douane in China, schadevergoeding en bewijs veiligstellen. 

Pak de Copycat!

Patent Protection in Myanmar

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Myanmar is an emerging market showing steady growth rates since the country set itself on a course of political liberalisation. Despite being one of the poorest ASEAN nations, the country’s economy grew at around 8.5% in the 2014/2015 fiscal year, with economic reforms bolstering consumer and investor confidence. The service sector was the main driver of growth thanks to expansions in telecommunications and transportation. Myanmar is an emerging economy with a GDP of $64.3 billion, which is 120px-Baganmyoattracting more and more foreign investments. Its 53.4 million strong population is mainly occupied in the agricultural sector. However, the garment and mining industries, as well as wood products also take up a significant part of the economy. 

EU imports for Myanmar are dominated by the textile industry, accounting for nearly 80% in 2011, making it the 29th largest trading partner for the EU for clothing. Agricultural products also play a significant role in Myanmar’s exports to the EU. EU exports to Myanmar on the other hand are dominated by machinery and transport equipment. EU exports to Myanmar have risen steadily since its increasing political liberalisation. 

Patents in Myanmar

Myanmar is not currently a signatory of the Paris Convention for the Protection of Industrial Property or any other treaty protecting patents. However, in accordance with the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), to which it has acceded, Myanmar is required to implement and comply with Articles 1-12, Article 19 of the Paris Convention and the terms of TRIPS by no later than 1st July 2021. Myanmar is now drafting IP laws such as the Patent Law to ensure its IP legislation is more in line with the TRIPS.

Although the Burma Patents and Designs (Emergency Provisions) Act 1946 came into force in 1993, there is presently no law in operation on patents. This implies that production, commercial use and trade in goods is possible without permission of the companies (or individuals), including those who may already hold the relevant patents outside Myanmar. At present, patent owners can file a Declaration of Ownership with the Myanmar Registry Office of Deeds and Assurances. There is no substantive examination or formality examination and once the declaration is registered, it is advisable to publish a Cautionary Notice in a daily English language newspaper such as the New Light of Myanmar, advising the public of patents’ ownership. The Declaration will be valid for 3 months with a possibility of renewal. However, the Declaration of Ownership does not grant any patent rights and currently there are very few options to actually enforce patents in Myanmar.

It is also possible to register Technology Transfer Agreements with the Myanmar Scientific and Technology Research Department. Only registered agreements are enforceable in Myanmar. The law, however, doesn’t cover patent licensing.

As patent protection in Myanmar is extremely limited, in order to seek protection for their inventions, most entrepreneurs have to invest considerable amounts in protecting their trade marks through the means locally available in Myanmar so that they can at least protect their brand reputation and goodwill from illegal action related to their products and businesses.

New Draft Patent Law (year 2015)

Myanmar government has published the New Draft Patent Law in 2015 that is still pending for approval.  The Draft Patent Law will include procedural and substantive provisions found in patent laws of most Paris Convention countries (including EU countries).

According to the Draft Patent Law, in order to be patentable, the invention must:

(a) be novel (absolute novelty applies);

(b) involve an Inventive step; and

(c) be industrially applicable.

Those three requirements are in line with international standards of patent protection worldwide. The patent registration system will also be similar to many other ASEAN countries. Patent applications would be filed with the Myanmar Intellectual Property Office (IPO), the governmental body that shall be created to be in charge of all IP registrations in the country. Upon receiving the application, a preliminary examination of all patent applications will be performed by the IPO, and publication of the patent application will follow if the patent application is considered complete and does not contain information contrary to national security or public safety.

The IPO might delay publication of the patent application until it receives clearance from the responsible ministry. For patent applications determined to be contrary to national security or public safety, the responsible ministry shall have the right to transfer any and all rights in the patent application to the Myanmar government. The ministry however needs to provide sufficient compensation to the applicant.[1]

The Draft Patent Law will also provide an opposition period of 3 months, starting from the date when the patent application was published. The opposition period is followed by substantive examination and subsequent grant of patent or rejection of the application.

Patents will be protected for 20 years subject to annuity fees. However, regarding essential pharmaceuticals the Myanmar government will have the right to issue compulsory licenses, which means that the patent owner cannot object to other companies receiving the right to produce these pharmaceuticals. These licenses, however, would be subject to royalties.  According to the Draft Patent Law, essential pharmaceuticals are defined as those pharmaceuticals considered essential to the public, national security, or development of the country, or those pharmaceuticals which provide a monopoly to the patentee that is considered detrimental to national interest.[2]

In case of patent infringement, patent owners will have the right to pursue civil litigation and criminal prosecution. Additionally, patent owners may apply to relevant courts for preliminary injunctions.

Enforcement 

Currently, in the absence of a functional patent law, it is extremely difficult to enforce patents in Myanmar. Under the Specific Relief Act (1877) and under the Merchandise Mark Act (1889), there are provisions which might grant enforcement, however, it is advisable to discuss these options with local IP lawyers to see whether they are applicable to the specific case. It is also advisable to discuss patent protection strategies with an IP expert before bringing technology to Myanmar.

In order to seek protection for their products, companies can consider emphasizing trade mark protection in Myanmar to protect their brand reputation and goodwill from illegal action related to their business, since brand protection is currently more developed in Myanmar.

South-East Asia IPR Helpdesk

SEA IPR

The South-East Asia IPR SME Helpdesk supports small and medium sized enterprises (SMEs) from European Union (EU) member states to protect and enforce their Intellectual Property Rights (IPR) in or relating to South-East Asian countries, through the provision of free information and services. The Helpdesk provides jargon-free, first-line, confidential advice on intellectual property and related issues, along with training events, materials and online resources. Individual SMEs and SME intermediaries can submit their IPR queries via email (question@southeastasia-iprhelpdesk.eu) and gain access to a panel of experts, in order to receive free and confidential first-line advice within 3 working days.

The South-East Asia IPR SME Helpdesk is co-funded by the European Union.

To learn more about the South-East Asia IPR SME Helpdesk and any aspect of intellectual property rights in South-East Asia, please visit our online portal at http://www.ipr-hub.eu/.

[1] Baker & Mackenzie: http://f.datasrvr.com/fr1/315/70539/Myanmar_Publishes_Draft_Patent_Law.pdf

[2] Ibid.