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How to Protect your IP in Creative Industries in China and South-East Asia
China & South-East Asia IPR SME Helpdesk
Giovanni F. Casucci
China and South-East Asia IPR SME Helpdesk External Expert
Date: 21 September 2016
Welcome to the Webinar!
Helika JurgensonProject Executive
South-East Asia IPR SME Helpdesk
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Enquiry Helpline
IP Guides, Country Factsheets & NewslettersE-learning &
Business Tools
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Snapshot: Helpdesk Free Services
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Name: Mr. Giovanni F. Casucci
Firm: Bardehle Pagenberg
Location: Milan, Italy
Email: giovanni.casucci@bardehle.eu
Giovanni F. Casucci is the founder of the Italian branch of the Bardehele Pagenberg. IP litigator inItaly since 1992. From 1999 to 2005 director of a Master program in IP Management at thePolitecnico of Milano University. Since 2008, director of the Master program of ICE (Italian TradeCommission) on IP and China (“Ideacina”) and member of the faculty of the MBA programs of MIPPolitecnico of Milano.
Current Coordinator of the Commissions “Design” and “Trade Fairs” at CNAC (Italian NationalAuthority for Anti Counterfeiting)
He was active in the training seminars in China within the IPR2 program. In particular, in September2006 (within the EU-China Trade Project) lecturer at the National Judge College of Beijing (oneweek seminar), 2010 Chinese road show seminar about EXPO IP enforcement, and Mock trial at theEXPO 2010 in Shanghai.
Main contributor to the IPR2 Study on “Protecting IPR at EU Trade fairs and Exhibitions”, 2008.
Author of several publications on IP Rights and active in several training courses on IP.
Speaker’s Bios
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Agenda
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Legal Framework
Patents
Design
Trade marks
Enforcement
Trade Fairs
Take-away Messages
China: Shanzhai = Slavish Imitation?
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Painters compete in a facsimile match in Dafen Village, Shenzhen City, in south China's Guangdong province. Photo: AP Photo/Xinhua, Feng Ming
Means “a remote mountain village”, implying “a group of people living in the mountain and taking it as theirs without governmental rules, who are really independent and fight for themselves”,
Appearance
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(Pat) ® ™® © (UC)
Intellectual Property
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Patents
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Poll I
Have you ever verified the Chinese patent database before exporting your technology to China?
A. Yes
B. No
C. No, I don’t know where verify it
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Patents
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TRIPS: Design
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• SECTION 4: INDUSTRIAL DESIGNS
• Article 25
• Requirements for Protection
• 1. Members shall provide for the protection of independently created industrial designs that are new or original. Members may provide that designs are not new or original if they do not significantly differ from known designs or combinations of known design features. Members may provide that such protection shall not extend to designs dictated essentially by technical or functional considerations.
• 2. Each Member shall ensure that requirements for securing protection for textile designs, in particular in regard to any cost, examination or publication, do not unreasonably impair the opportunity to seek and obtain such protection. Members shall be free to meet this obligation through industrial design law or through copyright law.
Design
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Poll II
Do you consider China an interesting market for design products?
A. Yes
B. No
C. I don’t know
D. No, I don’t have design products
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Time Table Comparison
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Industrial Design and Applied Art on Commercial Products
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Trade Marks
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Poll III
Have you ever verified the Chinese trademark database if your trademark is already registered in China ?
A. Yes
B. No
C. No, I don’t know where to verify it
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Trade Marks: the Chinese Language Way
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• Creating a literal translation of a brand’s name into Chinese:
• Apple Computers - Chinese name ‘Ping Guo’ (苹果) – literally the Chinese word for ‘apple’;
• Creating a phonetic translation:
• Siemens’ ‘Xi Men Zi’ (西门子);
• Combining a literal and a phonetic translation
• Coca-Cola: ‘‘Ke Kou Ke Le’ (可口可乐), which means ‘taste and be happy’).
Case Study I: Tenax Case
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Case Study II: Tenax Case
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Enforcement I
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Enforcement II
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Poll IV
Have you had any case of IP infringement in China or in South-East Asia?
A. Yes, in China
B. Yes, only in South-East Asia
C. Yes, in both regions
D. No
E. I don’t know
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Administrative Authority
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Case Study III: Panda/Peri
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Italy / China
Case Study IV: Silk Market
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Beijing
Case Study V: Ferrero Case
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Case Study VI: New Balance Case
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Case Study VII: Moncler Case
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Moncler awarded three million yuan (€420,000/ $470,000) in damages as a result of trademark infringements by a company called Beijing Nuoyakate Gourmet.
Moncler had discovered in 2013 that Nuoyakate was manufacturing and selling down jackets with counterfeit Moncler logos and that the Chinese group had attempted to register several fake trademarks and domain names in China and elsewhere.
http://www.thelocal.it/20151117/italys-moncler-wins-china-counterfeit-case
http://asia.nikkei.com/Business/Companies/Italian-clothier-Moncler-
wins-trademark-lawsuit-in-China
• Intellectual Property and the ASEAN Economic Community: 10 different countries
• Territorial nature of IP
• First-To-File system for IP
• Different SEA countries are at different stages of economic, commercial and legal development
• Enforcement challenges across all South-East Asia
• Non homogeneous IP landscape
33
Know your IP and know the IP landscape of the country you are interested in is key to plan a long-term strategy for your business to grow!
*Myanmar is the only ASEAN country not having enacted any IP laws
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IP Landscape n South-East Asia
IP Landscape in South-East Asia 2/2
The Association of Southeast Asian Nations -ASEAN
1.Singapore
2.Malaysia, Philippines, Thailand
3.Brunei, Indonesia, Vietnam4.Cambodia, Laos5.Myanmar
• Comprehensive legislation/ international standards and WTO obligations
• Issues in relation to IP registration procedures
• Issues in relation to enforcement
• Lack of IP laws and very weak enforcement
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South-East Asia: International IP Treaties
Country Accession to theBerne Convention
Accession to theParis Convention
Accession to theTrade Related Aspectsof IP Rights (TRIPS)
Brunei
Cambodia
Indonesia
Laos
Malaysia
Myanmar
Philippines
Singapore
Thailand
Vietnam
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Table 1: Status of Accession of South-East Asia Countries with key International IP Treaties and Agreements
Patent Cooperation Treaty (PCT)
Madrid System
Country Administrative Action Civil Action Criminal Action Customs Seizure
Brunei
Cambodia
Indonesia Option is legally possible, but not commonly used in
practice
Laos
Malaysia
Myanmar
Philippines
Singapore Option is legally possible by way of a special notice
issued by the IP owner to the customs office, but they do
not keep a database of registered marks or goods
Thailand
Vietnam
South-East Asia: Enforcement avenues
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Table 2: Summary of Available IPR Enforcement ActionsIn South-East Asia
Trade Fair Issues in China and South-East Asia
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Trade Fair Issues in China and South-East Asia
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South-East Asia IPR SME Helpdesk Guide:
Protecting your IP at Trade Fairs in
South-East Asia
Take-Away Messages
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• China and South-East Asia are rapidly growing in terms of quality of IP filing andprosecution as well enforcement rules and practice, so the first approach will beon acquiring knowledge about the opportunities offered (i.e. Administrativeenforcement) and being really aware about the current limits e.i.
Patents - China: the “relative novelty” requirement applicable still to patents /utility models filed before the October 2009
Trade marks: the lack of protection for unregistered trade marks in the majority ofcountries
Designs: the of grace period for novelty not consistent with the EU Directive andthe really limited term of protection (10 years) and the need to consider copyrightas alternative against identical
• South-East Asia – these countries are rapidly growing as sub-manufacturingregions, so in order to avoid risk or loss of any control of your IP rights it isessential to file and register your rights first. At the moment, only a select few ofthe countries offer good possibilities to obtain acceptable results under theenforcement perspective (Singapore, Malaysia).
Q&A
Name: Giovanni F. Casucci
Firm: Bardehle PagenbergLocation: Milan, Italy Email: giovanni.casucci@bardehle.eu
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Bi-monthly Helpdesk Newsletters
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Library of publications:
IP specific guides, incl. patents, trade marks
Industry specific guides, incl. textiles, machinery, creative industries
Business guides, incl. technology transfer
Country Factsheets, incl. Mainland China, Hong Kong, Macao, Taiwan and the 10 South-East Asian countries
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WE ARE HERE TO HELP YOU GROW...”
The China and South-East Asia IPR SME Helpdesk provides free, confidential, business-focused advice to European Small and Medium Enterprises (SMEs) relating to IPR in China and South-East-Asia.
To learn about any aspect of intellectual property rights in Vietnam or elsewhere in South East Asia, including Local partners Due diligence IP audits Or to simply learn about the local landscape and adapt your IP plan
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