A lesson in Chinese law from Donald Trump

President-elect Donald Trump is, apparently, litigious, with, it is said, at least 3500 in the US federal and state courts.

He has also been a litigant in China – indeed the first president elect of the United States as litigant – where he lost. 

Some years ago, Trump had attempted to register his TRUMP trademark in China but missed out to a prior registration under China’s ‘first to file’ trademark system.

That and other aspects of Chinese trade mark law are often misunderstood, with a different concept applying in relation to much of intellectual property. Trade mark piracy is also common.

China

For one thing, a trademark registration overseas – in the EU or the US – provides no protection in China, save for “well known brands”, with a high threshold of proof applying even there.

For another, a third party can register “your” trademark in China, and if they do so before you, under the first to file system for trademark registration, then you are prevented from using your own trademark.

One let-out in your favour can be if the person’s registration of your trade mark was made in bad faith, but this is a narrow concept.

You will usually have to just grin and bear the use of your trademark for someone else’s commercial gain.

Information for this came from the website of the Supreme People’s Court Monitor.

Australia

As Trump found out, in conducting your business in China, prompt registration of your own trademark, as you perceive it, and other intellectual property, is important.   

IP Australia gives good advice on this aspect of doing business in China, in relation to trade marks, and also designs, patents and other IP rights. It advises to have these registered, in China, before you enter into any discussions with Chinese parties or exhibit your products at international trade shows. 

“If you don’t, someone else could register your IP and stop you from exporting your product”.

IP rights in China are registered through several government bodies: patents and designs through the State Intellectual Property Office (SIPO) and trade marks through the China Trademark Office (CTMO). Copyright protection applies automatically, but can be registered through the National Copyright Administration.

The China-Australia Free Trade Agreement (ChAFTA) came into effect on 20 December 2015. The full agreement as well as helpful information and factsheets are available on the Department of Foreign Affairs and Trade website.

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