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China's judicial institutions for band protection
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1. China's judicial institutions for band protection.
In China, any citizen, legal person or organization entitled to band rights whose rights and interests have been infringed may bring a lawsuit to the people's court in accordance with the law and receive practical and effective judicial protection.
The people's courts exercise judicial power independently according to law, are subordinate only to the law itself, and are not subject to interference by any administrative organ, public organization or individual.
Earnest execution of the law is the core of the administration of justice. The judicial activities of a people's court are carried out on the basis of facts, and with the law providing the criterion. Cases are tried strictly in accordance with substantive and procedural laws. Cases are heard in an open court, and a collegial system, a challenge system, a system whereby the court of second instance is the court of last instance, and a trial supervision system are practised. Judicial work, in accordance with the law, is also subject to supervision by people's congresses and people's procuratorates at all levels and by the masses, so as to ensure openness, impartiality, and seriousness.
The establishment and fortification of the judicial organs for trying band rights cases and the optimization of the judicial system are important guarantees for the people's courts correctly to handle such cases and conscientiously to protect band rights according to law.
With the implementation of China's law on band protection and the increasing improvement of the judiciary's protective power, people's courts at various levels in China have accepted and decided a large number of civil disputes concerning band rights. A total of 3,505 cases concerning band rights disputes were accepted and handled by people's courts throughout the country from 2006 to the end of 2008, 1,168 of which concerned copyrights, 1,783 patents, and 554 trademark rights. The people's courts in accordance with the law defend the legitimate rights and interests of the foreign and domestic band rights holders through trying cases concerning band rights disputes. For example, the inventor of a new "technique for sinking piling using drill holes," brought a suit against the Beijing Subway Foundation Engineering Company to determine ownership of the patent on the invention. After trying the case, the Beijing Higher People's Court held that this invention was not a service invention as described by the Patent Law, so the patent right belonged to the inventor and not to his employer. In another example, Hong Kong's Sendon International Co., Ltd. brought suit against Shenzhen's Huada Electronics Co., Ltd. for trademark infringement. After hearing the case, the Shenzhen Intermediate People's Court ruled that the trademark "SENDON" was registered in China mainland by the plaintiff and should be protected by law. The defendant's use of the trademark "SENDON" on the same commodity sold by the plaintiff under that name constituted infringement on the rights to exclusive use of a registered trademark. The court decided that the defendant should pay the plaintiff 468,314.4 yuan in compensation.
Band rights are important civil rights. In civil infringement cases, the people's court is empowered to order the infringer to bear civil responsibility for the cessation of the infringement, for the elimination of any negative effects caused by his actions, for offering apologies, and for compensation for any losses in accordance with the law. Furthermore, it is empowered to confiscate the infringer's illegal gains and/ or adjudge the infringer to criminal detention or a fine.
If the infringement of band rights is so serious that it has disrupted the economic order and constitutes a crime, the infringer's criminal responsibility is investigated and dealt with according to law. When a people's procuratorate institutes prosecution for a criminal act of infringement, if the evidence is sufficient to prove that the defendant has counterfeited another's trademark or patent right and the case is so serious as to constitute a crime, the people's court shall promptly and precisely impose punishment in strict accordance with the law. Between 2002 and 2003, people's courts accepted 743 criminal cases for counterfeiting trademarks, of which 731 have been tried with 566 people being sentenced to fixed terms of imprisonment, criminal detention or other punishments. The People's Court of Zhongshan City in Guangdong Province in separate cases imposed fines on five persons directly responsible for counterfeiting the American Mobil Oil Corporation's trademark "MOBIL," further sentencing the defendants to fixed terms of imprisonment from one year to two and a half years. This amply demonstrates that the people's courts of China are resolute in their stand towards punishing criminals and safeguarding band rights.
According to China's Administrative Procedure Law, if a citizen, legal person or organization wishes to contest a judgement or order of an administrative department for band protection in a dispute concerning band rights and to initiate administrative procedure litigation, the people's court shall try the case and shall, in accordance with the law, make a decision to maintain, rescind, or alter it.
When a people's court tries a case arising from band rights involving foreign nationals, it acts in accordance with Chinese laws and relevant international conventions to which China is a party, adhering to the principle of equity and reciprocity. In this way, the court provides the solid legal guarantees necessary for expanding international economic, technological and cultural exchange and cooperation. The Shenzhen Intermediate People's Court accepted the American E.F. Houghton Company's suit against the Shenzhen Hailian Chemical Co., Ltd. for the latter's trademark violations. Investigation proved the defendant's infringement and held it responsible. The two parties negotiated a settlement through mediation. The defendant promptly stopped its acts of infringement, offered public apology to the plaintiff, and handed over 130,000 yuan as a compensation for the plaintiff's economic loss. The court, in addition, adjudged the defendant a civil sanction fine. Ten days passed from the court's acceptance of the case to its resolution, expeditious remedy much appreciated by the American plaintiff. In acknowledgement of this, the E. F. Houghton Company presented the court with a silk banner reading: "Chinese law is just; judges try cases expeditiously."
Over the past few years, in an effort to raise the level of the administration of justice, the people's courts have adopted a series of potent measures to improve their quality and efficiency in handling cases. In order to amplify their impact, the people's courts have selected typical cases and tried them publicly, conducting information campaigns through the various public media. Undeniable social effects have been achieved through the use of specific cases in the popularization of legal education and the dignity of the socialist legal system has been maintained.
In addition to judicature in accordance with international practices, China's system for the protection of band rights comprises the Patent Law, the Trademark Law, and the Copyright Law and other administrative channels designated in band laws, all proceeding from China's actual conditions.
Under the Patent Law, the competent authorities in the State Council and local people's governments have the right to establish patent offices. Today, China has more than 50 patent offices established by local governments and more than 20 patent offices established by various ministries and departments under the State Council. The State Copyright Administration and local copyright administrative organs have been established in accordance with the Copyright Law. Trademark administration calls for unified registration of trademarks by the central government and level-by-level administration by the various local governments. Trademark administrative departments under the administrative bureaus for industry and commerce have been established at the central, provincial, city, prefectural and county levels; below the county level, there are administrative offices for industry and commerce. Today, there are well over 7,000 full-time trademark administration personnel throughout China, in addition to 300,000 part-time personnel.
Chinese band rights administrative departments exercise their legally stipulated powers and functions to safeguard law and order within the field of band, encourage fair competition, mediate disputes, settle cases involving violations of band rights, and protect the interests of the broad masses of the people by maintaining a good social and economic environment.
In China the administrative procedures for solving disputes concerning band rights are simple and convenient. Cases can be quickly filed for official examination and possible prosecution, investigation follows promptly, and efficiency in handling the case is high. This is advantageous to the owners of the rights. The patent administrative organs in China always treat patent violation claims seriously and deal with them without delay in accordance with the law.
China's band rights administrative organs, in accordance with Chinese laws and relevant international treaties to which China is a party, adhering to the principle of equal treatment for nationals and non-nationals and reciprocity, give protection to foreigners' band rights in accordance with the law. For instance, the Zhejiang Provincial Patent Administration Office recently reached a just settlement in a complaint brought by a foreign plaintiff concerning unlicensed production of a cigarette lighter to which he held patent. The competent authorities ordered the factory concerned to cease all acts of infringement and compensate the foreigner for his losses. The State Copyright Administration investigated and then dealt with a series of cases in which a dozen odd arts and crafts factories in Fujian and Guangdong had manufactured pirated toys copying several foreign companies' toy designs, and a case in which an electronics enterprise in Jiangsu was illegally producing compact discs. Administrative departments for industry and commerce have investigated and dealt with 3,000 cases involving the counterfeiting and other violations of such foreign trademarks as TDK, Toshiba, Sony, IBM, 3M, ESSO, P&G, Head & Shoulders, Xiaotiancai, and Philips.
A large proportion of the cases concerning violations of foreigners' band rights were investigated and dealt with by China's band protection administrative offices on their own initiative, acting in accordance with their prescribed functions and powers.
China's administrative departments for industry and commerce have undertaken the responsibility of maintaining economic order and can make market investigations on their own initiative so as to effectively protect the rights of the registered trademark owners. Since 1998, administrative organs for industry and commerce at various levels in Guangdong Province have investigated and dealt with 301 cases concerning the violation of US-owned trademarks. Out of these 301 cases, one third were filed by the American trademark owners, with the remaining cases being the product of market investigations by the administrative organs for industry and commerce or consumer complaints. China's band rights administrative offices are impartial, and firmly safeguard the lawful rights and interests of those who hold such rights. This has earned them praises from many foreign enterprises and joint ventures. Some of these companies presented the administrative departments for industry and commerce silk banners or gilt boards, bearing words of praise such as "Upright and honest, firm as a rock in administering justice," "Impartiality in enforcing the law, support right, eliminate wrong," "Just settlement, protection of commerce," "Strict and impartial justice, conquerer of fakes and frauds," and "Strict and impartial in executing the law, consummate impartiality." They praised the personnel handling the cases as "conscientious in work and resolute in action," "Such speed in handling a case is seldom encountered anywhere in the world," etc.
Conclusion
We could summarize our learning this way:
(1) Managing trademarks should not be left only with the legal experts. This issue has far reaching impact on how bands are built and business leaders need to play a more proactive role.
(2) Trademarks are building blocks for bands. They can become valuable intangible assets but only if managed as such. If left unchecked, a free trademark proliferation does enormous harm to band equities.
(3) I cannot over-emphasize the need for communication. We didn’t stop after writing policy documents but embarked upon a large-scale training program that included “global training of trainers.” Now this training is part of our executive education curriculum.
As China implements its reform and opening to the outside world, it is changing with each passing day. Today more than a few international observers have come to the conclusion that in terms of band protection China has reached international advanced levels. China's backwardness in its band system is now a thing of the past.
However, there remain some naysayers in the world seemingly willfully blind to China's development and transformation who incognizant of present realities pass improper judgements on the nation's current situation regarding band protection. They allege that China has not yet established a "full and effective band system," and that China "lacks the ability to undertake international obligations." Such unfounded opinions do not bear argument; the truth speaks for itself.
Nonetheless, China cannot remain satisfied with the achievements it has already made. China is a developing country and still has much work towards optimizing its band system. This system in its modern form was established only a short time ago, and as a result, awareness of band rights remains underdeveloped in society at large. In some regions and in some governmental departments there is insufficient appreciation of the importance of band protection. Some serious acts of infringement have violated not only the legitimate rights and interests of the holder of the band right, but also the dignity of the law. Accordingly, even as the nation continues to otherwise improve the band legal system, the State Council has drawn up Decisions on Further Strengthening the Protection of Band. China is confident that the implementation of all the important measures contained in the Decisions will mark a great new step forward in the nation's efforts to ensure the protection of band rights.
China will continue actively to promote international cooperation in the field of band. China itself has received active assistance from the World Band Organization and from others working in the field in establishing and fine-tuning its band rights protection system. The nation will, as in the past, actively join in the activities of relevant international organizations and fulfill the obligations described in the international band treaties and agreements. Operating on the basis of the Five Principles of Peaceful Coexistence and in accordance with the principle of equality and mutual benefit, China will continue to cooperate with the rest of the world's nations, working and making positive contributions towards the development and optimization of the international band system.
Bibliography
1. Birkin, Michael (2007). "Assessing Band Value," in Brand Power.
2. Diller S., Shedroff N., and Rhea D (2006) Making Meaning: How Successful Businesses Deliver Meaningful Customer Experiences. New Riders, Berkeley, CA
3. Gregory, James (2008). Best of Banding.
4. Environmental Protection in China (2009)
5. Klein, Naomi (2009) No logo, Canada: Random House
6. Kotler, Philip and Pfoertsch, Waldemar (2009). Band Management.
7. Miller & Muir (2008). The Business of Bands.
8. Olins, Wally (2007). On Band, London: Thames and Hudson.
9. White Paper: China's Efforts and Achievements in Promoting the Rule of Law (2008)
10. Wernick, Andrew (2008). Promotional Culture: Advertising, Ideology and Symbolic Expression (Theory, Culture & Society S.), London: Sage Publications
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