Can copyright replace trademark protection in China?AAA IPRIGHT2
Although it sounds like a bizarre thing to consider due to the difference in nature between the 2 aspects, however, can copyright replace trademark registration in China?
Trademarks sometimes can be hard to register and protected due to the long registration time that may take up to years.
However, when an idea arises, the businesses can’t afford to wait for years to have all their rights registered and protected. Time is of the essence and losing time means losing opportunities.
This situation is especially clear in China as this country has a large range of startups that come active each year. Most of these startup has trouble raising funds for their company, they certainly can’t wait for years for their trademark registration to be completed, or for other IP rights to be registered and protected.
Accordingly, during the pending process of the trademark application, as well as in some other rare cases, what can the rights holders do to protect their assets?
One of the methods that rights holders can utilize is with the Copyright Customs recordal – an effective last-minute protection replacement.
Specifically, the rights holders may file a copyright recordal with China Customs as an interim measure in the absence of a trademark right.
Protect rights through Copyright Customs recordal
An example of a case where rights have been protected through the Copyright Customs recordal system is a footwear brand in China who have difficulties registering its trademark.
As their trademark is a combination mark and its device element is subject to copyright protection, they have recorded the copyright with China Customs.
On the 3rd day after the recordal approval, Ningbo Customs halted two 40ft containers of counterfeit shoes based on this copyright recordal. These shoes were destined for sale in markets in South America.
From the Customs’s point of view in regards to IP rights protection, copyright recordal of this nature is functional and acts as a replacement for trademark rights against counterfeit goods.
Consequently, the goods were put to a halt and awaited careful inspection, just as with a trademark counterfeit inspection.
Specifically, Customs officers carry out ex officio inspections against copyright-infringing goods.
According to the CCGA (China Customs General Administration) 2021 IP report, there has been a total of 26,060 pcs (across 244 shipments) copyright infringing goods were seized in 2020.
In addition, there have been a total 5,290 copyrights recorded in China till December 22, 2021.
Utilizing the Copyright Customs recordal
However, in reality, copyright is actually tougher to enforce and protect than trademark. This is due to the nature of copyright which has always been a more subtle category.
The Copyright Customs recordal has also only been recent adapted to the fight against counterfeiters and copycats.
Of all the infringing goods seized by China Customs in 2020, 99% were made on trademarks and only 1% with Copyright recordal.
In addition, due to its difficult characteristic, the Officers in the Customs also tend to neglect the search for copyright infringements than trademarks.
So, to solve this problem, the IP rights holders need to proactively cooperate with port Customs officers, raising their awareness on the matters of copyright infringement detection.
This can be done through the IP owner’s own investigation to find out which is the likely route the infringers tend to take. After that, they can focus on that port and provide the Officers with the shipping information of the counterfeiters, among other measures.
– You could see How To Register Trademark in China here.
– You could visit here to see Procedure of Trademark in China.
– You could visit here to check Required documents of filing trademark in China.
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