Since working on the China IPR SME Helpdesk I have organised and attended scores of events on various intellectual property (IP) topics. Following presentations from legal experts we always allow some time for a question and answer session. The most common question asked by European businesses is a variation of the following question:
“If I have a (insert trade mark or patent) registered in (insert EU country). Is it valid in China?”
The answer is easy, it’s a resounding no. Intellectual property rights are territorial due to the fact they are offered and governed by each country’s legislation. Although some international treaties exist, they generally only facilitate the application process in different countries.
Adding to the confusion is the fact that China currently exists in a ‘one country, two systems’ situation whereby the IP systems in Mainland China differ from those in Hong Kong, Macau and Taiwan and different registration is required in each territory.
Through dialogue with many European Helpdesk users I have identified that one reason why many people presume IP rights skip borders is that intellectual property is sometimes considered a moral right. Additionally, with such easy access to information internationally through the internet it is very possible that a trade mark registered in Italy for example can easily be seen by a Chinese competitor if the Italian company uses the internet to sell or market their product.
Unfortunately this can lead to problems for your European business. China is a first to file system which means that the first person to register the trade mark is the legal owner in China even if the trade mark has been used by a different company in another country. Whether obtained morally or not, possession is not just nine tenths of the law, it is the law!
The best way to protect your intellectual property therefore is to protect it in every market you operate in (manufacture, sell, may move into in the future etc.). This can mean a significant, initial outlay of time and financial resources but the benefit is peace of mind that you can protect your rights no matter where you are in the world which ultimately could save you greater resources in the long run.
Has your trade mark been registered in China by someone else? Get in touch with us!