By Jiang Ling, Partner, King & Wood’s Trademark Department

The term "works" used and protected under the Copyright Law refers to original intellectual creations in the literary, artistic and the scientific domain, in so far as they are capable of being reproduced in a certain tangible form. As for literal works, this refers to the works manifested in text form, no matter how long it is or what type or format of literature it uses. As long as it is original, it should be within the scope of protection by the PRC Copyright Law (as well as Trademarks as previously discussed). Therefore, it can be concluded that an advertising slogan is in principle not excluded from copyright protection on the condition that it is original. However, the Copyright Law does not define what "original" is. Judging by judicial practice, the expression of original works may not necessarily be unprecedented, and re-creation based on previous intellectual works of others is not forbidden either. In general, works possess originality as long as it is created by the author independently rather than plagiarizing others’ works which bears some personalized characteristics. Thus, it is possible for slogans to be copyrighted.

Continue Reading Just Do It!? Protecting Advertising Slogans in China Part II

China’s rapid economic development and its emerging middle class allow franchises to operate in China under the following model:

The franchisor
• owns a well-known brand with a global reputation;
• has a strong desire to expand its brand in China;
• currently lacks sufficient capital and the traditional franchising model is no longer suitable to support such expansion.

The franchisee:
• has a well-developed distribution network;
• already owns second-line brands for the same or similar products which have already established certain market share in China;
• has ready capital and other operational resources.

By Cecilia Lou, Partner at King & Wood’s Intellectual Property Group

Continue Reading Franchising Challenges in China Part II

Ting Xu, Associate, Trademark Department

On May 26, 2008, the China Trademark Review and Adjudication Board (“TRAB”) of the State Administration for Industry and Commerce (SAIC) made a decision in favor of Changyu Winery Group, upholding its exclusive use of the mark “cabernet” in Chinese 解百纳 as a registered trademark. The decision further found that Changyu established “解百纳”  as one of its trademarks through its use and did not consider “解百纳” the generic name for these cabernet grape varieties.  This means other wineries such as China Great Wall Winery, Dynasty Fine Wines Group Limited and Yantai Weilong Grape Wine Co. are prohibited from using the mark “解百纳”, which may certainly cause damage to these wine makers in marketing their products.
Continue Reading Wine Confusion: Trademark Dispute over Cabernet

Successfully handling rejection reviews, based on a prior similar mark, in the past has proven difficult.  Rather than simply giving up registration of an important trademark, recent China Trademark Review and Adjudication Board (TRAB) decisions indicate that an effective alternative for applicants is trying to reach a co-existence agreement with the owner of the cited