Chinese Customs Enforcement of Trademark Rights
I. Introduction
Any party holding a registered Chinese trademark can request that the Chinese customs authorities detain and seize infringing product from any party that attempts to export such infringing product from China. This is a very powerful tool in combating product piracy in China. However, the procedure is only available for trademark owners who formally register their trademarks in China. Parties who have registered or used marks outside of China cannot use this powerful tool. Since it takes several years after application before a trademark is formally registered in China, we recommend to all our clients who manufacture or sell product in China to register their trademarks as soon as possible.
II. Sample Cases
The cases below illustrate the way that the Chinese customs authority can protect the exclusive right to use trademarks that have been registered in China. The source of these cases is the Shanghai Customs Intellectual Property Protection website.
Case 1: Shanghai customs discovers the attempted export of pirated YAMAHA trademarked motorcycles.
Quality Liability of Products in China
Digest:
Recently the product quality issues in China have caused great attentions worldwide. The industries for toys, clothes, foods, tires, and pharmacy, etc. have been considered as products which need to be controlled and examined strictly when being imported. The direct result is that foreigners are doubtful about whether China has a complete and effective system of quality control and product liability, and whether the products made in china need to obey some specific standards and rules. This article will give the explanation to those questions through the analysis of one detailed case.
Facts:
There is a pending case in Allen & John Law Firm in China. Party A: staff of one large enterprise of retail industry. Party B: domestic manufacturer of beverages. The event happened in 2006. The fruit juice made by party B was required to be returned by consumers. Party A and staff of Party B handled the related procedures according to the usual practice, and gave the returned products back to Party B for disposal. Just when Party A and staff of Party B checked the goods, suddenly, the bottle exploded and the cover of the bottle hit Party A’s right eye. The injured eye was swollen and ached at once. After being diagnosed by doctor, the eyeball was diagnosed as injured which would cause a bad influence to his eyesight. At last, Party A was determined by the relevant government department to be injured and disabled.
Legal Issues:
- Whether the Chinese domestic producer is liable for the product quality.
- Which warranty responsibilities for product quality shall be assumed by the producer.
- When the warranty responsibilities for product quality shall start to be assumed according to related Chinese law.
- The conditions of assuming the injury responsibility for product quality.
- Once the accident happens, whether there is legal grounds for making a claim for the injury in China.
- The limitation of subject matter for the claim for the responsibility of product quality.
- The substitute responsibility between producer and seller.
Analysis:
How to Prepare the Implement of New Labor Contract Law of China on Jan. 1, 2008
Digest :
This article focuses on un-fixed term labor contract and relating compensation issues in the New Labor Contract Law of People’s Republic of China, and list some solutions for the employer.
Facts :
One of our client is a JV service company with total 65 employees. Now it signs one year term labor contract with each employee annually. According to old Labor Contact Law of China, if employer continues hiring an employee over 10 years, it shall sign an un-fixed term labor contract with this employee. Until now, all employees’ working period in this company is less 7 years. There is no any un-fixed term labor contract. This company can terminate any employee’s labor contract when annually renewing term due at no reasons and no costs. However, after Jan. 1, 2008, new Labor Contract Law of China Article 14, term 3 said after two fixed term labor contacts, if no special reasons, the employer shall sign an un-fixed term labor contract with this employee. In this case, only after two years our client shall sign an un-fixed term labor contract with its employees. This new fact makes our client uncomfortable and it asks us for a solution.
Legal Issues :
- According to new Labor Contract Law of China, how can our client avoid to sign an un-fixed term labor contract as longer as possible?
- According to new Labor Contract Law of China, are there any other ways to avoid signing an un-fixed term labor contract?
- After signing an un-fixed term labor contract, how can the employer get rid of or terminate this contract with its employee?
- When the employer terminates its labor contract, is there any compensation or how much compensation for its employee according to New Labor Contract Law of China?
Analysis :