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August 27, 2007
Beijing: Analysis of a Left Turn
You will appreciate this fine analysis of left turn in Beijing. With thanks to Emperor B for the onpass. Then watch a video of traffic patterns at an intersection in Guangzhou here.
No, really, it's fascinating!
Posted by Richard at 1:09 PM | Comments (0)August 23, 2007
China Law Reporter Looking for Articles
Qiang Bjornbak, editor of the ABA's China Law Reporter, is soliciting articles on two timely topics.
1. China's much anticipated anti-monopoly law: its major features and potential for influence upon unfair competition behaviors, such as price fixing.
2. Product safety issues. Ideally, CLR is looking for two articles on this subject -- "one from a lawyer from the Chinese perspective and one from a non-China-based lawyer taking the importer's perspective. Lots of topic possibilities with this one.
For further information, contributors should contact Qiang directly with their proposal.
Posted by Richard at 10:35 PM | Comments (0)August 21, 2007
Kiwis Say "Blow Me Down! Poison in Kids Clothing From China?"
In New Zealand, high-levels of formaldehyde have been found in children's clothing imported from China. Calls are issued for Parliamentary investigations.
Just how does the formaldehyde find its way into the bloodstream? Curious, but I was unaware that Kiwis ingested woolens and cottons. Never saw them served at a bun-fight, have you?
Then, some dag comes along to report more formaldehyde can be found in food and drink, a by-product of aspartame, than in clothing.
Dieters of New Zealand, beware. Never, NEVER! sweeten your cardigan with NutraSweet.
[Editor's note: Many thanks to Miss Johnson from London for the tip.]
UPDATE (August 22, 2007): Now all in ANZ can sleep restfully. Thank goodness it's turning warmer.
"Chinese-made blankets containing high levels of formaldehyde have been recalled across Australia and New Zealand, the distributor said Wednesday, amid rising global concern over the safety of products from China."Posted by Richard at 5:11 PM | Comments (0)
August 20, 2007
Registration and Enforcement of IP Rights in Korea: A Brief Introduction (Part 4)
[Editor's Note: We present our fourth and final installment of our review of the Korean intellectual property system. Prior installments: Part 1, Part 2, Part 3. Once again, let me thank Drambuieman, the author, whose bio you may read in Part 1 of the series.]
Common Scams
Speaking of cyber-squatters, I thought it might be useful to give some tips I have picked up on trademark squatting. Due to issue above with what is considered a famous mark, there are a few bad-faith registration scams in Korea that a company, especially a small or mid-sized one, should be aware of.
At one time, Korea was a very restricted market. Back then, about 10-15 years ago, a distributor, particularly one distributing a foreign mark, needed to be registered at KIPO as such. This aspect of Trademark Law has since been appealed and although the system is no longer mandatory, the registration system still exists in its dusty, bureaucratic, inert way.
While the numbers are declining rapidly, some bad actors still scan this distributor register to identify marks without a distributor listed. Lack of one either signals a mark vulnerable for counterfeiting, or a mark vulnerable for other actions to be mentioned later. So I recommend companies, partially ones without much business (for reasons you will see), register a Korean distributor with KIPO or at least raise the idea with their Korean attorneys.
Another common tactic is what I like to call distributor blackmail. In this a person who hopes to be a distributor of a foreign good (or even an existing one) registers the mark in THEIR name with KIPO. They then use this to gain a distributorship from the company, or use it as a tool to gain a better bargaining position with the foreign maker. Unfortunately the only protection against this is early registration and vigilance.
The last scam can be particularly deadly if used in combination with the two above. Korean law allows a trademark to be cancelled for non-use after three years. So if you register a mark and do not sell of market goods with the mark, the mark could be canceled by anybody and then they would have an exclusive right to apply for that mark for three months. So if you have minimal sales in Korea and are vulnerable, it can helpful if you have Korean sales materials, import records (even if only samples) and perhaps an officially registered Korean distributor (see above).
Like the guy waking up in a bathtub of ice in his Las Vegas hotel room missing a kidney, the above are not guaranteed to happen to you. However, these are some common scams you may want to be aware of. If you have specific concerns, contact your local Korean representation.
Back to the beginning
So what would I recommend to the parts maker? Well, the first idea is to assess what intellectual property rights he currently holds in Korea. If he does not own the trademark, register it as soon as possible. If the current maker owns the trademark, he could argue he is the rightful owner given the fame of his mark internationally, but you may gather from the above that I would not be hopeful of success.
If the parts maker does own the mark in Korea, first, I would contact the customs service with everything I know (name, part type, shipping information, etc.). This would help isolate the problem to Korea. Ideally, the Korean Customs Service will hopefully block any exports and imports of possible counterfeit parts used in the final product.
Second, would be to send a C&D to the Korean manufacturer for either IP infringement and anti-competitive acts (depends on the specifics). Lack of compliance would lead to a criminal complaint.
All this would hopefully stop the problem short to mid term. After that I would be very vigilant about local usage and exports. Unfortunately for Korea, if it happened once, it can happen again.
Posted by Richard at 1:08 PM | Comments (0)August 15, 2007
Audio: Baby-bibs Made in China Test Positive for Lead
The New York Times editorializes on the safety of Chinese imports and what should be done, in its own inimitable fashion. Rich Kuslan attempts to interpret. WARNING: This podcast may contain sarcasm.
Baby-bibs Made in China Test Positive for Lead
Lead, again. The New York Times -- "everything that fits, we print" -- opines obliquely this morning on the subject of Chinese imports. Portions are intelligble. Let me endeavor to translate Times-speak to American English (I am not yet certified but well-acquainted with the slant of the handwriting.)
“That’s the price of doing business,” is the too-often-heard excuse from American companies that choose to overlook China’s loose business ethics and tight, verging on strangling, political controls.
We sit on this high moral perch of ours. (Stop whispering among yourselves about goings-on inside the Times!) American businessmen dealing with China -- look up at me as we speak to you! Gavel bangs. Guilty!. Gavel bangs. Order, we must have order! The convicted will now listen to our solution to the whole import safety megillah.
It is definitely not in America’s interest — economic, political or strategic — to erect a barricade against Chinese imports, which could spark a mutually destructive trade war. American businesses and the Bush administration must send a clear message to Beijing that it has to clean up its act or its export-led boom will falter.
Don't fight. Who wants a black eye? But everybody start yelling.
What China needs is an effective and transparent regulatory system to enforce product safety standards. The United States and other countries can help with technical advice and warnings about what would happen if Beijing refuses to take it. But the dangers are too immediate to wait.
Maintain the status quo. Let's get in there and continue to assist the competition to the American workforce do a better job than they're doing now, as we did elsewhere in Asia for the last 40 years. Golly, do you think lead in my gavel can cause brain damage?
Companies like Mattel may need to station their own full-time inspectors with their Chinese suppliers — and make clear that they’ll take their business elsewhere if those suppliers refuse to go along.
We don't care if Chinese are so darn smart they can evade just about any restriction placed upon them. Stop talking! Gavel bangs. We don't care if inspectors can be paid off. (Can they do that? Don't we have the Foreign Corrupt Practices Act of 1976?) Let's simply be straightforward about it and make another demand.
Unfortunately, the Bush administration, which disdains America’s regulatory system, has cut personnel and squeezed budgets at both the Food and Drug Administration and the Consumer Product Safety Commission, impairing their ability to monitor the quality of products made in China or, indeed, anywhere else.
It's Bush's fault.
There are some signs that China’s government may finally be getting the message. And for the sake of its own children, as well as America’s, China must establish an effective regulatory system and guarantee the safety of its own products. But American consumers can’t wait for that to happen. American businesses and American regulators have to provide the first line of defense.
America - it's up to you! Well, just industry and government, two major bees we've carried in our bonnet since time immemorial. Inspect everything. Help China. And to the masses of American consumers: you may continue buying whatever you please.
Posted by Richard at 1:30 PM | Comments (0)August 14, 2007
Registration and Enforcement of IP Rights in Korea: A Brief Introduction (Part 3)
[Editor's Note: We continue from Part 2.]
Quicksand and Other Surprises
First, a present surprise, again contrary to reputation due to the past: Korea’s IP system is largely free of corruption or domestic favoritism. In my five years of working in this field, both in and outside the Korean Intellectual Property Office, the number of times when I suspected there was something nefarious I could count on one hand. Most allegations boil down to either tough calls or a disagreement with the practice and administration of IP law.
One of those disagreements is what constitutes a famous trademark under Korean or International Law. In a nutshell, if your mark is sufficiently famous, you have a de facto defendable trademark. The crux however is what is “sufficiently famous”. Korea sets a very high bar in determining what’s famous. In addition, Korea is strict as well as to the type of goods.
I was involved in a case regarding a very famous copyrighted character with multiple derivative movies, TV shows, and cartoons (some of which did multi-million dollars worth of business in Korea). Yet we were unable to prevent the unauthorized registration of the mark for pet toys and novelties since KIPO determined the character was famous, but not sufficiently so for pet toys.
Since Rich mentioned it in his original post, I think it’s a good idea to bring it up here. Remember Korea is in Asia. This means any contract you may have to ensure confidentiality, like any other contract in Asia, is not in stone. Be sure to keep this in mind as you meet to discuss technical issues. There are trade secret laws, but as always they are hard to prove and may upset your business relations.
Finally, a topical grey area: domain names. Korea is still grappling with the legal and administrative means to resolve national level domain names (e.g. “co.kr”). To be honest, I do not know exactly what to recommend in a general sense, other than saying expect this to be a problematic area.
Posted by Richard at 12:49 PM | Comments (0)August 13, 2007
Mattel's China Toy Subcontractor Commits Suicide?
Washpost claims that Zhang Shuhong of Lee Der Industrial Co., Ltd., the leaded toy supplier to Mattel, has committed suicide. Zhang's colleagues claim, apparently over the telephone, his death by hanging in his factory. Terrible, if true. But, true? Please, can I be skeptical of this one, too? This report strikes me very wrongly. I have emailed the writer of the piece, asking for corroboration.
UPDATE (August 14, 2007): Oh, boy. Mattel Recalls 8.8 Million Toys.
What effect on Chinese factory owners? (Did I hear a black cackle out there?) I can see the headline in the Asian edition of News of the World (sorry, even I won't provide a link to that site): Lee Der led in lead, leading to loads of ledge leaping!
By the way, why has no journalist yet gently knocked on the door of the bereaved Zhang (Cheung) family to confirm his death? A phone call to a local PSB (Public Security Bureau) appears to be the only follow up done by any writer. And that, of course, we can count on. Right, all you China-based journalists?
Posted by Richard at 1:28 PM | Comments (0)August 9, 2007
Registration and Enforcement of IP Rights in Korea: A Brief Introduction (Part 2)
[Editor's Note: We continue from Part I)]
Basic Overview of IP Enforcement Mechanisms
The first thing I can say about enforcing your IP in Korea is “forget civil courts and damages.” Such cases can be long, expensive, long, tedious, long, and can have anticlimactic rulings (oh, did I mention they were long?). For the latter, courts usually only award compensatory damages that can be meticulously accounted for and they almost never give punitive damages. To give you a time frame, an initial decision can take at least a year, and usually you can add another year or so for the appeals process to work out, and the latter makes the reward for patience rarely worth it. To make these options even more unattractive, while you may be able to recover legal fees, they are limited by law and rarely match the actual cost.
However, I actually should not be so dismissive. Civil courts can be a weapon in your arsenal. You will find your Korean lawyers treat it as a weapon of last resort. So should you.
A “dispute” could cover a variety of laws. It could be your standard patent or trademark case. In some cases, however, it may be better to proceed under fair trade laws, called anti-competition or unfair competition laws locally.
If you have an IP dispute, the first move you should normally make is to send a Cease and Desist letter to the infringer. An attempt to settle the manner amicably is seen as a good faith gesture by either the courts or prosecutors office (depending upon your route). It is also incidentally a good internal springboard for the next step, since in a C&D you have to explain what law was violated, how it was violated and show what evidence of the of the infringement you have collected. (You can always add violations and evidence later however if you need to).
The next normally recommended step would be to file a criminal complaint. While cases vary, you usually assert criminal offense based on the Patent Act, the Trademark Act, the Anti-Competition Act, or others (you can find the text at the Ministry of Legislation website). A criminal complaint is usually a statement made in person to the police covering much the same content as the C&D. The filing process for a criminal complaint can be rather involved, so do not be surprised at the cost quoted by local attorneys. Be assured the cost is to cover this time, not the enforcement itself as some erroneously conclude.
In a way, this is partly a negotiating step since it can be withdrawn. Being indicted in Korea is considered a social black eye, thus you may find people more willing to settle once an official criminal complaint is filed. As part of any settlement, you may ask for damages. However, my tip is to keep it minimal, if not a token.
Ultimately you will get an indictment, which is pretty much a conviction. Oddly the penalty the court will give will usually be slight, due to the Korean courts' penchant for lenience for first time offenders. (The conviction itself is usually seen as the big deterrent).
I have come across a few who think is an easy thing to conduct police raids (why, I do not know). In order to conduct a police raid, you need to have complied enough evidence and have a compelling argument to convince the Public Prosecutor’s Office to go before the court, and enough for a court authorize the police raid. I personally have never found a need to conduct one, but have heard that the burden of proof is quite high. A final note here, the cost for a raid is quite small, or even none, when conducted in conjunction with a criminal complaint.
And the last, but by no mean least, tool is the Korean Customs Service. Over the past few years the Customs Service has taken vigorous role in policing counterfeit goods going in and out of the country. If you have a suspicion your IP is being infringed either by import or export, you can inform the Korean Customs Service and they will do the best they can. You can approach them with a general concern, but obviously the more specific you are the more likely catch the goods. Such evidence can be used in a later criminal or civil action.
Posted by Richard at 12:30 PM | Comments (1)August 6, 2007
Registration and Enforcement of IP Rights in Korea: A Brief Introduction (Part I)
[Editor's Note: My scant treatment of Korea on this blog has not been intentional. Occasionally, I've dealt with the topic, blogging on fruitless plans to build highway and rail lines across the DMZ into the DPRK (North Korea); the now imprisoned flower-baron Yang Bin's involvement in resort casinos in Shinuiju across the border from Dandong （丹东）; and, if I remember correctly, something about bibimbap.
Alas, my mind has been elsewhere: in China, the case for these past 25 years. That is not to say that I am a sinophile. I am not. No - China made me a skeptic in the 1980s and I remain so, by experience, not by text. Nevertheless, the idea of it continues to tug gently at me. If ever there was a cauldron of fascination for those who seek to peer into it...
But readers of our next post will find somewhat more of Asia in Asia Business Intelligence than just China. Our next author prefers to remain anonymous, going by the happy epithet, Drambuie Man. You will find his bio in the first three paragraphs of his post. Those who may wish to contact him should contact me first.]
Registration and Enforcement of IP Rights in Korea: A Brief Introduction (Part I)
I first would like to thank Rich Kuslan for the honor of contributing this piece. His blog is one of my regular reads. I was asked by Rich to contribute something on IP law in Korea. As with anything you know a lot about, its tough to limit yourself to what is essential. Thankfully, one of the previous posts here as Chinese IP Law overview provides a good framework. Many parts of that post, particularly the discussion on business practices, goes for the Korean side as well.
The exact position I am in is somewhat unique, given I am not a Korean lawyer nor admitted to the bar anywhere. I started in the IP field on the practical end, first via working with high-tech companies in the US on Korea. While obstensibly doing marketing, I found my at the heart of matters relating to contracting, patents, IP valuations and IP transfers between companies.
For the past five years I have worked roughly as a paralegal (Korean has no exact analogous word in my experience) for the Law Offices of Book Chon, a Korean law firm specializing in all areas of Intellectual Property Law. Within that time, I have also worked for the Korean Intellectual Property Office, the Korean government office responsible for the review and registration of IP in Korea. While with the government, I worked on cooperative projects between KIPO, other national IP offices and multilateral groups, such as the World Intellectual Property Office, due to my knowledge of Korean IP law and the unique perspective I have as non-Korean. When I have time, I blog on Korean IP news at Dram Man, and on things in general at the Marmot’s Hole.
Below I may give what could be inferred as specific advice. It is not. Rather it is my unfortunately blunt style combined with my over eagerness to help when I can. If you have any practical concerns, contact Korean counsel. Your case is unique and special, and should be considered as such.
Rich’s original post found a US company in a problem. Somebody in Korea was counterfeiting its parts and shipping them to China. For obvious reasons, the story stopped there. However, I can give a practical conclusion for that story. First, an overview.
Korea has a certain reputation for bias against foreign intellectual property applicants and rights holders; sometimes that reputation is deserved in individual cases, but on the whole not true. Things in Korea have radically changed with respect to IP Law, and today Korea boasts one of the more advanced IP legal systems.
Korean patent documents are considered so essential that they were included as Patent Cooperation Treaty (PCT) minimum documentation last year, a distinction shared with the US, EU, and Japan. As part of the PCT minimum documentation, Korean patent information must be searched for all PCT applications (method for gaining early recognition of certain rights and later patents worldwide).
Also last year, the Korean Intellectual Property Office became an International Search Authority for the USPTO, an ability shared with the EU. This designation intends to relive some of the workload for the USPTO. PCT applicants can now indicate that their initial international search for a US filed application can be done by KIPO, thus giving confirmation that the quality of patent examination done by KIPO in this area is on par with US and the EU.
IP Registration: Promise, Despite Pitfalls
Unlike China, Korea has one main office handling IP registration, the Korean Intellectual Property Office (KIPO). KIPO handles the registration of patents, trademarks, and designs, but not copyrights. Korea is also part of the Patent Cooperation Treaty and the Madrid Protocol, allowing international applicants to gain early priority.
A pitfall, however, is the seductive similarity of KIPO and its procedures on paper when compared to the US and Europe. For example, drug companies have a hard time with patents because, among many other things, molecules cannot be patented. Korean trademark examiners read English language marks quite closely, and may fail to see a turn of a phrase or unique wording.
For the latter, consider the booming use of the “e” prefix by marketers today (eFile, eBay, eFriend, etc.). Under Korean law a simple letter is considered to be non-distinct. So if you combine it another descriptive or non-distinct word, a KIPO examiner will likely fail to grasp the coinage of the word and reject the mark for being two non-distinct or descriptive words. So for example, consider proposing the mark “e-Pet Quality Pet Shops” for pet shops. A native speaker grasps the uniqueness of the mark, but to a typical KIPO examiner there is little more than the descriptive “Pet Quality Pet Shops” components and a non-distinct common letter “e,” making the mark unregisterable in Korea.
This is not to say necessarily that you will definitely have these problems in trying to register your IP. However, if problems do arise, take a deep breath and realize that Korea is not the US, the EU or even Japan.
If any problems cannot be resolved with written arguments to the initial examiner, you will find you can appeal a decision to the Intellectual Property Tribunal (a KIPO appeals board), then to the Patent Court and finally to the Korean Supreme Court. (A brief note, the Korean Supreme Court is really the highest appellate court circuit; it is not a “Supreme Court” in an American judicial sense.)
Copyrights fall under the Ministry of Culture and Tourism. The system is remarkably similar to the US. There is no requirement to register your gain a copyright, but you can if you wish.
Read Part 2 here.
Posted by Richard at 12:49 PM | Comments (0)August 3, 2007
2007 Angel Investor Conference in Beijing
2007 （第二届）中国天使投资大会
我们诚挚地要请您参加9月 22日在北京隆重举办的《2007 （第二届）中国天使投资大会》，此次大会将聚集中外著名实力天使投资人、中外顶级投资机构、门户网站创始人以及企业名人来共同探讨2007年中国投资热点，研究中国新经济的创新发展方向。 大会特别为创业项目准备了洽谈会，为欲创业、正创业、已创业的你提供融资平台。届时，你将和投资人对接洽谈。
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8．参加本次大会所有项目简介及联系方式将录入会刊发放到到场所有嘉宾。
论坛信息：
主 办：聚 网 新经济导刊
承 办：创业家园
支持单位：央视国际
时间：9月22日
地点：北京
规模：500人
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议程安排：
报到：2007 年9月21 日（9： 00—17： 00）
论坛：2007年 9月22日 （9：00 —12：00 ）
洽谈：2007年 9月22日 （14：00 —17：50 ）
会务组将安排分区商务洽谈会，以开展技术、经贸交流、宣传、介绍新项目。请投资方，项目方按各自的需求情况于2007 年9月10 日前，报会务组以便确定洽谈对象。
晚宴（合作意向签字仪式）：2007年 9月22 日（18： 30—21： 00）
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门票：500元／人（包中餐；项目简介录入会刊发放到所有嘉宾手中）
大会会务组：
传真：010-84405606-107
Email： Frank Su Xianya
联系电话： 010-84405606 苏先生
