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World Trademark Review May/June 2008 44 a Paramilitary Policeman A paramilitary policeman patrols the exterior of the National Stadium, better known as the Bird's Nest, in Beijing as last-minute preperations are under way Photo: Frederic J Brown/AFP/Getty Images 44 World Trademark Review May/June 2008 Get set to defend your rights Protection and enforcement before, during and after the Beijing Games May/June 2008 World Trademark Review 45 Introduction Feature By Catherine Sun oca-Cola, Atos Origin, General Electric, Johnson & Johnson, Kodak, Lenovo, Manulife, McDonald’s, Omega, Panasonic, Samsung and Keeping Visa – these are brands we are about to see a whole lot more of over the coming months. C What they have in common (if you had not already guessed) is that they are among the official worldwide Olympic-related partners for the Olympic Games in Beijing. The respective brand owners have invested hundreds of millions of dollars in sponsorship and will be hoping that the guaranteed worldwide rights on track exposure of the Olympics will bring a massive boost to their brand profiles. But how does one go about protecting these valuable exclusive sponsorship rights and the underlying intellectual property in China – the undisputed global centre for IP rights infringement? Although the Olympics are now only a matter of weeks away, the foundations for protection were laid in 2001, almost immediately after the announcement that Beijing had been successful in its bid to host the games. As Catherine Sun of Since the announcement in 2001 that Beijing would Foley & Lardner LLP in Shanghai explains in the first section of host the 29th Olympic Games, the Chinese our three-part feature on trademark protection in China during the Olympics, China acceded to the World Trade Organization authorities have made significant improvements to that year and made significant changes to its IP rights the IP protection regime. With the games now just protection regime. As well as amending the Trademark Law, it around the corner, the authorities and rights holders brought in a raft of new regulations to protect the Olympic must start putting their final strategies in place signs. Sun, who oversaw her firm's role as international legal counsel for the organizing committee of the 2007 Special Olympics World Summer Games held in Shanghai last October, In August this year, the 29th Olympic Games will be held in Beijing. explains that the Chinese authorities have been rigorous in Since its successful bid on July 13 2001 China has been preparing for their attempts to enforce rights under the new laws. However, this historic event in almost every conceivable area: from building a as the level of infringing activity is likely to rise significantly in new airport in Beijing and numerous stadiums across the region to the periods immediately before and during the Games, she reducing air pollution. However, it is the less visible changes that are cautions that IP rights holders will need to be on their guard to perhaps of most importance to IP rights holders and their advisers. ensure that they obtain adequate levels of protection. China has taken giant steps to ensure that it has in place a coherent Enforcing IP rights against infringers and ambush legislative foundation to protect IP rights before, during and after marketers is one thing, but what about damage to the brand the Games. The new legal framework on Olympic symbols is a clear caused by external factors? The Beijing Olympics have been example of the changing attitude in China towards IP rights dogged by controversy since the announcement of the infringement and bodes well for the future. successful bid in 2001 and this has only increased as the opening ceremony has drawn nearer. High-profile figures, such Background as Mia Farrow and Steven Spielberg, have spoken out against the China joined the World Trade Organization (WTO) a few months after Games or withdrawn their support due to the host nation’s Beijing was chosen to host the Olympics. This gave credence to China’s close ties with the oppressive political regime in Sudan. Voices long-stated aims of further integrating its economy with the global critical of China’s human rights record and its policy in Tibet market and adhering to the international rule of law. In particular, have grown ever louder, culminating in the ugly accession required significant amendments to China’s IP rights demonstrations accompanying the Olympic torch as it makes protection regime to make it more compliant with the WTO’s Agreement its way around the world. Will being associated with what some on Trade-Related Aspects of Intellectual Property Rights (TRIPs). have dubbed the ‘genocide Games’ actually damage the rights The most notable of these changes were updates to the Trademark holders that have spent so much to ensure that their brands are Law and its Implementing Regulations, which included the following: as closely affiliated with the Games as possible? Burt Alper, co- • expansion of the scope of registrable subject matter to include founder and strategy director of Catchword, a brand naming three-dimensional marks, combinations of colours, and company based in San Francisco, examines this and other key certification and collective marks; branding issues in China in the second part of our focus. • allowing appeals to the courts of the Trademark Review and In the final section, well-known anti-counterfeiting expert Adjudication Board’s decisions; Joseph Simone, a partner with Baker & McKenzie, shares his • increased recognition and protection of well-known marks; expertise and sets out the most important steps that all rights • allowing foreign mark owners to apply to local administrative holders should follow when seeking to combat trade in agencies directly for enforcement; and counterfeit goods before, during and after the Games. WTR • implementation of temporary restraining measures in the form of pre-suit preliminary injunctions. These amendments strengthened trademark protection for both domestic and foreign brand owners, and also offered a strong 46 World Trademark Review May/June 2008 www.WorldTrademarkReview.com platform for China to implement the rules and regulations the duration of the licence and its territorial scope. The rights owners protecting Olympic-related IP rights. should record the licence within one month of signing an agreement. A little over one month before China joined the WTO, the Chinese For its part, the licensee must indicate the admission record number government issued a local rule concerning the protection of in conjunction with any use of the licensed Olympic symbols. Olympic-related IP rights (the so-called ‘Beijing Rule’), which was implemented on November 1 2001. After accession, China brought in Enforcement and remedies at least 10 regulations and rules nationwide protecting Olympic- The SAIC and local Administrations for Industry and Commerce related IP rights. This new framework makes use of the existing (AICs) are the main agencies through which to enforce rights in enforcement system provided by bodies such as the State Intellectual Olympic symbols. Other relevant administrative bodies include the Property Office (SIPO), the General Administration of Customs and copyright authorities, Customs and the Public Security Bureau. the State Administration for Industry and Commerce (SAIC). The process of making a complaint against suspected trademark infringement is quite straightforward. Rights holders must first Protected symbols conduct a thorough investigation to preserve evidence, and identify The scope of Olympic-related IP rights can include most forms of the location and volume of the suspected infringing products. For intellectual property such as trademarks, copyrights, patents and Olympic-related rights infringement, rights holders can expect proprietary information. This article, however, focuses on Olympic expedited action from the enforcement authorities. The symbols. administrative penalties available include: The 2002 Olympic Regulation provides a broad definition of • an injunction; ‘Olympic symbols’. Article 2 lists the following six categories: • the confiscation and subsequent destruction of the infringing • the International Olympic Committee’s (IOC) Olympic five-ring goods, as well as the tools, moulds and equipment used in the logo, Olympic flags, Olympic motto, Olympic emblem and production thereof; Olympic theme songs; • the forfeiture of the profits made by the infringer arising from • names comprising or including the terms ‘Olympic’, ‘Olympiad’ the unlawful acts; and ‘Olympic Games’ or any abbreviations thereof; • an administrative fine of up to five times the illegal profits; and • the name, emblem and logo of the Chinese Olympic Committee • a public and private apology. (COC); • the name, emblem and logo of the Beijing Organizing Upon obtaining a favourable administrative decision, rights Committee of the Olympic Games (BOCOG); holders can choose to sue for damages in the civil courts. For certain • the name and logo of the 29th Olympic Games Organizing trademark and copyright infringements, the infringer may also face Committee, and the mascots, theme songs and slogans of the criminal liability, in which case the Public Security Bureau and the 29th Olympic Games (eg, ‘Beijing 2008’) or any abbreviation Prosecutor’s Office will take action. thereof; and The mechanism in the 2002 Regulation to determine the amount • other related symbols as stipulated in the Olympic Charter and of damages is similar to that set forth in the Trademark Law. However, the Host City Contract. the regulation does not explicitly state the procedure for assessing damages in circumstances when it is hard to quantify the level of harm Thus, the regulation has expanded the definition of ‘Olympic symbols’ to include not only words, signs and patterns under the trademark system, but also subject matter under the copyright regime, such as theme songs, medal designs and databases. All Chinese equivalents to Olympic symbols are also protected. In addition, the SAIC has issued notifications on the scope of Olympic symbols in each SIPO’s official newspaper category to help implement the regulation more smoothly.
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