Protection of band names
Content
Introduction 2
Part 1. Concept
of band names 4
Part 2. The
courts and judges in USA 5
Part 3. Band
Protection in China 7
Conclusion 16
Bibliography 18
Introduction
The band protection system emerged as a product of the
development of human civilization and commodity economy and, in various
countries, it has increasingly become an effective legal tool for protecting
the interests of the owner of intellectual products, promoting the development
of science, technology and the social economy, and allowing international
competition.
Since the 1980s, bands and the management of bands have
attracted an enormous amount of interest. Companies became acutely aware of how
their band image could mean the difference between success and failure. Band
Management: A theoretical and practical approach gives insight into this
phenomenon, moving from the history of the band to how to develop, manage and
protect bands. Band Management: A theoretical and practical approach takes a
decision-making approach to the subject, structured around the decisions a band
or product manager would face when considering their own band strategy,
covering topics such as design, judicial protection, adverse publicity and
financial-band valuation.
How do you overhaul and reorganize more than 3,000 trademark
registrations owned by an $11 billion global corporation?
That was the question faced by Ingersoll-Rand several years
ago when it sized up its trademark situation.
Ingersoll-Rand, founded in 1905, was long known for its tools
and machinery, which carved the faces on Mount Rushmore. The company now is a
diversified company that makes refrigeration equipment (under bands ThermoKing,
Hussmann); compact vehicles such as small loaders, excavators and golf cars
(under bands Bobcat, Club Car); locks and security systems (under bands
Schlage, Kryptonite); construction equipment such as pavers, compactors,
portable compressors; and industrial equipment such as generators, turbines.
The benefits in preserving our band integrity were more far
reaching, particularly in terms of avoiding band dilution. Many new product/
service offerings were accompanied by a new name, so in many instances, the
promise of core bands might confused by the marketplace. For instance, if the
promise of a strategic band is technological innovation, would you then really
need a new sub-band for the next generation of a product family? In this case,
does a new name really provide a competitive differentiation, or just create
confusion?
Part
1. Concept of band names
Band is the image of the product in the market. Some people
distinguish the psychological aspect of a band from the experiential aspect.
The experiential aspect consists of the sum of all points of contact with the
band and is known as the band experience. The psychological aspect, sometimes
referred to as the band image, is a symbolic construct created within the minds
of people and consists of all the information and expectations associated with
a product or service.
People engaged in banding seek to develop or align the
expectations behind the band experience, creating the impression that a band
associated with a product or service has certain qualities or characteristics
that make it special or unique. A band is therefore one of the most valuable
elements in an advertising theme, as it demonstrates what the band owner is
able to offer in the marketplace. The art of creating and maintaining a band is
called band management. Orientation of the whole organization towards its band
is called integrated marketing.
Careful band management seeks to make the product or
services. Therefore cleverly crafted advertising campaigns, can be highly
successful in convincing consumers to pay remarkably high prices for products
which are inherently extremely cheap to make. This concept, known as creating
value, essentially consists of manipulating the projected image of the product
so that the consumer sees the product as being worth the amount that the advertiser
wants him/her to see, rather than a more logical valuation that comprises an
aggregate of the cost of raw materials, plus the cost of manufacture, plus the
cost of distribution. Modern value-creation banding-and-advertising campaigns
are highly successful at inducing consumers to pay, for example, 50 dollars for
a T-shirt that cost a mere 50 cents to make, or 5 dollars for a box of
breakfast cereal that contains a few cents' worth of wheat.
Bands should be seen as more than the difference between the
actual cost of a product and its selling price - they represent the sum of all
valuable qualities of a product to the consumer. There are many intangibles
involved in business, intangibles left wholly from the income statement and
balance sheet which determine how a business is perceived. The learned skill of
a knowledge worker, the type of metal working, the type of stitch: all may be
without an 'accounting cost' but for those who truly know the product, for it
is these people the company should wish to find and keep, the difference is
incomparable. Failing to recognize these assets that a business, any business,
can create and maintain will set an enterprise at a serious disadvantage.
A band which is widely known in the marketplace acquires band
recognition. When band recognition builds up to a point where a band enjoys a
critical mass of positive sentiment in the marketplace, it is said to have
achieved band franchise. One goal in band recognition is the identification of
a band without the name of the company present. For example, Disney has been
successful at banding with their particular script font (originally created for
Walt Disney's "signature" logo), which it used in the logo for
go.com.
Consumers may look on banding as an important value added
aspect of products or services, as it often serves to denote a certain
attractive quality or characteristic (see also band promise). From the
perspective of band owners, banded products or services also command higher
prices. Where two products resemble each other, but one of the products has no
associated banding (such as a generic, store-banded product), people may often
select the more expensive banded product on the basis of the quality of the
band or the reputation of the band owner.
Part
2. The courts and judges in USA
The judges, and the courts in which they sit, are a good
starting point. Band names causes are invariably assigned to the Patents Court,
part of the Chancery Division of the High Court (the only exception being those
that are started in the Patents County Court, which in some ways is barely
distinguishable from the High Court equivalent). The Patents Court, which for
years had a single judge assigned to it (Whitford, Aldous, Jacob, Laddie and
Pumphrey JJ will become familiar names to the student of this area of law), now
boasts seven (Lewison, Mann, Kitchin, Floyd, Arnold, Morgan and Norris JJ ). A
number of practising barristers also sit as deputy judges, and there is also a
need for practitioners to exercise their judicial talents as appointed persons
to hear appeals from decisions of the UK Band Office.
At that early stage in the proceedings, the defendant might
be restrained from carrying on the business from which he earned his living,
obliging him to find an alternative, clearly non-infringing, source of income.
The injunction would remain in place for months, until trial, and the fact that
it had been granted indicated that the judge liked the plaintiff's case. That
added up to a strong indication that a settlement would be a good idea.
Likewise, a plaintiff denied an interlocutory injunction
would receive a loud message discouraging him from further litigation. Band
names cases have always been notoriously expensive, and going full steam ahead
after an indication had been given that the judge was not convinced about the
strength of the case would give the plaintiff pause for thought.
Nowadays, with more judges to hear band names cases, despite
there being more and more band names cases to hear (in contrast with other
divisions of the High Court since Lord Woolf's civil justice reforms), cases
come to trial much more speedily. An application for interim, or urgent, relief
may be met by the judge (charged by the same civil justice reforms with being
more proactive in the management of his cases) setting the case down for a
speedy trial. And in the post-Woolf environment, if the parties get to trial
they might find their counsel being summoned to the judge's chambers at an
early stage to hear how he expects the case to go and to receive a clear, if
not explicit, exhortation to settle.
Part
3. Band Protection in China
As a whole, China, however, for a variety of historical
reasons, began work on its band rights protection system at a comparatively
late date. After China started reform and opening to the outside world, it
accelerated the process of establishing an band rights protection system in
order to rapidly develop social productive forces, promote overall social
progress, meet the needs of developing a socialist market economy and expedite
China's entry into the world economy.
Today, band protection is an issue of universal concern in
the international political, economic, scientific, technological and cultural
exchanges. International bilateral and multilateral negotiations on this topic,
especially the reaching of the Agreement on Trade-related Aspects of Band
Rights in the General Agreement on Tariffs and Trade (GATT), have raised
worldwide band protection to a new level.
In today's world, great importance is attached to band
protection. What is China's specific position regarding this question? What is
China's current legislation on band rights and how is it enforced? What
measures has China taken to ensure its international commitment to band
protection? A brief introduction to these issues will prove useful.
It is the Chinese government's view that the band protection
system plays a significant role in promoting progress in science and
technology, enriching culture and developing the economy. It functions both as
an important institution ensuring the normal running of the socialist market
economy and as one of the basic environments and conditions for conducting
international exchange and cooperation in science, technology, economy and
culture. China considers the protection of band an important part of its policy
of reform and opening to the outside world and of the building of its socialist
legal system.
The basic framework for China's band rights protection legal
system was completed for the most part in the 1980s. In the 1990s,
international economic relations and the international economic environment
have already undergone great changes.
The Chinese government's sincerity in its efforts to
scrupulously abide by international conventions and bilateral agreements
regarding the protection of band rights, and its capacity to fully implement
its international obligations have been appreciated and supported by world
opinion.
Along with its progress in reform and opening up, China has
made big strides in band protection. In accordance with its national conditions
and current tendencies in international development, China has formulated and
finetuned various laws and regulations on band protection, thereby constructing
a socialist legal system for band protection with Chinese characteristics. The
scope of the band rights protected in China and the degree of protection
afforded have gradually conformed with international practices and the high
degree of legal protection for band rights has been realized.
China has a complete legal system for the protection of band
rights. China's band law stipulates the legal responsibilities to be borne by
anyone who violates the law, including civil liability, criminal liability and
exposure to administrative sanctions.
China's Patent Law provides that in the case of infringement
arising from the exploitation of a patent without authorization of the patentee,
the patentee or other affected parties may request the patent administrative
authorities to deal with the matter or may directly file suit in a people's
court. In investigating and dealing with the matter, the patent administrative
authorities are empowered to order the infringer to stop all acts of
infringement and compensate for any losses. Whoever counterfeits a patented
product or wrongly appropriates a patented technique will be ordered by the
patent administrative authorities to cease all acts of counterfeiting, to
provide the public with notification of his or her violation, and to pay a
fine. In the case of serious violations, the criminal liability of the person
directly responsible shall be investigated through application of relevant
articles of the Criminal Law, and if found guilty, the person directly
responsible shall be sentenced to fixed-term imprisonment of not more than
three years, criminal detention or a fine.
With the implementation of band laws, band rights are
effectively protected in China. These laws are also actively encouraging
invention and other forms of creation and fair competition. For instance, the
protection of the right to the exclusive use of registered trademarks has
resulted in the rapid growth of the number of trademarks registered by Chinese
and foreign businessmen in China. By the end of 1993, the number of effective
registered trademarks had exceeded 410,000. Of these, 350,000 were domestic,
with the remaining 60,000 coming from 67 countries and regions. Companies from
the United States, for example, had only 122 trademarks registered in China
before 1979; by 1993 that number had soared to 16,221, more than a hundred
times the earlier figure. In 1993, there were 170,000 applications for
trademark registration annually in China, including more than 130,000
applications for new trademarks registration, among the highest number in the
world. In addition, the Patent Law of China has greatly encouraged inventions
and other creations in China, and has proved a magnet to patent applications
from other countries and regions. On April 1, 1985, the first day the Patent
Law came into effect, 3,455 applications for patent rights were submitted. By
the end of 1993, the Patent Office of China had handled over 360,000
applications for patent rights. Of those, 27.5 percent were for inventions,
62.8 percent for utility models, and 9.7 percent for exterior designs; domestic
applications accounted for 86.4 percent, while 13.6 percent were applications
from 70 countries and regions. By the end of 1993, 175,000 patents had been
approved, including more than 20,000 invention patents, more than 130,000
utility model patents and over 20,000 exterior design patents.
China has formulated comprehensive band rights laws and
regulations. Today, it is earnest and fair in executing these laws, and much
has been accomplished in this regard.
These great achievements in the execution of the band rights
protection laws and regulations are above all the product of comprehensive
judicature and administration provided for in these same laws and regulations.
1. China's judicial institutions for band protection.
In China, any citizen, legal person or organization entitled
to band rights whose rights and interests have been infringed may bring a
lawsuit to the people's court in accordance with the law and receive practical
and effective judicial protection.
The people's courts exercise judicial power independently
according to law, are subordinate only to the law itself, and are not subject
to interference by any administrative organ, public organization or individual.
Earnest execution of the law is the core of the
administration of justice. The judicial activities of a people's court are
carried out on the basis of facts, and with the law providing the criterion.
Cases are tried strictly in accordance with substantive and procedural laws.
Cases are heard in an open court, and a collegial system, a challenge system, a
system whereby the court of second instance is the court of last instance, and
a trial supervision system are practised. Judicial work, in accordance with the
law, is also subject to supervision by people's congresses and people's
procuratorates at all levels and by the masses, so as to ensure openness,
impartiality, and seriousness.
The establishment and fortification of the judicial organs
for trying band rights cases and the optimization of the judicial system are
important guarantees for the people's courts correctly to handle such cases and
conscientiously to protect band rights according to law.
Band rights are important civil rights. In civil infringement
cases, the people's court is empowered to order the infringer to bear civil
responsibility for the cessation of the infringement, for the elimination of
any negative effects caused by his actions, for offering apologies, and for
compensation for any losses in accordance with the law. Furthermore, it is
empowered to confiscate the infringer's illegal gains and/ or adjudge the
infringer to criminal detention or a fine.
If the infringement of band rights is so serious that it has
disrupted the economic order and constitutes a crime, the infringer's criminal
responsibility is investigated and dealt with according to law. When a people's
procuratorate institutes prosecution for a criminal act of infringement, if the
evidence is sufficient to prove that the defendant has counterfeited another's
trademark or patent right and the case is so serious as to constitute a crime,
the people's court shall promptly and precisely impose punishment in strict
accordance with the law. Between 2002 and 2003, people's courts accepted 743
criminal cases for counterfeiting trademarks, of which 731 have been tried with
566 people being sentenced to fixed terms of imprisonment, criminal detention
or other punishments. The People's Court of Zhongshan City in Guangdong
Province in separate cases imposed fines on five persons directly responsible
for counterfeiting the American Mobil Oil Corporation's trademark
"MOBIL," further sentencing the defendants to fixed terms of
imprisonment from one year to two and a half years. This amply demonstrates
that the people's courts of China are resolute in their stand towards punishing
criminals and safeguarding band rights.
According to China's Administrative Procedure Law, if a
citizen, legal person or organization wishes to contest a judgement or order of
an administrative department for band protection in a dispute concerning band
rights and to initiate administrative procedure litigation, the people's court
shall try the case and shall, in accordance with the law, make a decision to
maintain, rescind, or alter it.
When a people's court tries a case arising from band rights
involving foreign nationals, it acts in accordance with Chinese laws and
relevant international conventions to which China is a party, adhering to the
principle of equity and reciprocity. In this way, the court provides the solid
legal guarantees necessary for expanding international economic, technological
and cultural exchange and cooperation. The Shenzhen Intermediate People's Court
accepted the American E.F. Houghton Company's suit against the Shenzhen Hailian
Chemical Co., Ltd. for the latter's trademark violations. Investigation proved
the defendant's infringement and held it responsible. The two parties
negotiated a settlement through mediation. The defendant promptly stopped its
acts of infringement, offered public apology to the plaintiff, and handed over
130,000 yuan as a compensation for the plaintiff's economic loss. The court, in
addition, adjudged the defendant a civil sanction fine. Ten days passed from
the court's acceptance of the case to its resolution, expeditious remedy much
appreciated by the American plaintiff. In acknowledgement of this, the E. F.
Houghton Company presented the court with a silk banner reading: "Chinese
law is just; judges try cases expeditiously."
Over the past few years, in an effort to raise the level of
the administration of justice, the people's courts have adopted a series of
potent measures to improve their quality and efficiency in handling cases. In
order to amplify their impact, the people's courts have selected typical cases
and tried them publicly, conducting information campaigns through the various
public media. Undeniable social effects have been achieved through the use of
specific cases in the popularization of legal education and the dignity of the
socialist legal system has been maintained.
In addition to judicature in accordance with international
practices, China's system for the protection of band rights comprises the
Patent Law, the Trademark Law, and the Copyright Law and other administrative
channels designated in band laws, all proceeding from China's actual
conditions.
Under the Patent Law, the competent authorities in the State
Council and local people's governments have the right to establish patent
offices. Today, China has more than 50 patent offices established by local
governments and more than 20 patent offices established by various ministries
and departments under the State Council. The State Copyright Administration and
local copyright administrative organs have been established in accordance with
the Copyright Law. Trademark administration calls for unified registration of
trademarks by the central government and level-by-level administration by the
various local governments. Trademark administrative departments under the
administrative bureaus for industry and commerce have been established at the
central, provincial, city, prefectural and county levels; below the county
level, there are administrative offices for industry and commerce. Today, there
are well over 7,000 full-time trademark administration personnel throughout
China, in addition to 300,000 part-time personnel.
Chinese band rights administrative departments exercise their
legally stipulated powers and functions to safeguard law and order within the field
of band, encourage fair competition, mediate disputes, settle cases involving
violations of band rights, and protect the interests of the broad masses of the
people by maintaining a good social and economic environment.
In China the administrative procedures for solving disputes
concerning band rights are simple and convenient. Cases can be quickly filed
for official examination and possible prosecution, investigation follows
promptly, and efficiency in handling the case is high. This is advantageous to
the owners of the rights. The patent administrative organs in China always
treat patent violation claims seriously and deal with them without delay in
accordance with the law.
China's band rights administrative organs, in accordance with
Chinese laws and relevant international treaties to which China is a party,
adhering to the principle of equal treatment for nationals and non-nationals
and reciprocity, give protection to foreigners' band rights in accordance with
the law. For instance, the Zhejiang Provincial Patent Administration Office
recently reached a just settlement in a complaint brought by a foreign
plaintiff concerning unlicensed production of a cigarette lighter to which he
held patent. The competent authorities ordered the factory concerned to cease
all acts of infringement and compensate the foreigner for his losses. The State
Copyright Administration investigated and then dealt with a series of cases in
which a dozen odd arts and crafts factories in Fujian and Guangdong had
manufactured pirated toys copying several foreign companies' toy designs, and a
case in which an electronics enterprise in Jiangsu was illegally producing
compact discs. Administrative departments for industry and commerce have
investigated and dealt with 3,000 cases involving the counterfeiting and other
violations of such foreign trademarks as TDK, Toshiba, Sony, IBM, 3M, ESSO,
P&G, Head & Shoulders, Xiaotiancai, and Philips.
A large proportion of the cases concerning violations of
foreigners' band rights were investigated and dealt with by China's band
protection administrative offices on their own initiative, acting in accordance
with their prescribed functions and powers.
China's administrative departments for industry and commerce
have undertaken the responsibility of maintaining economic order and can make
market investigations on their own initiative so as to effectively protect the
rights of the registered trademark owners. Since 1998, administrative organs
for industry and commerce at various levels in Guangdong Province have
investigated and dealt with 301 cases concerning the violation of US-owned
trademarks. Out of these 301 cases, one third were filed by the American
trademark owners, with the remaining cases being the product of market
investigations by the administrative organs for industry and commerce or
consumer complaints. China's band rights administrative offices are impartial,
and firmly safeguard the lawful rights and interests of those who hold such
rights. This has earned them praises from many foreign enterprises and joint
ventures. Some of these companies presented the administrative departments for
industry and commerce silk banners or gilt boards, bearing words of praise such
as "Upright and honest, firm as a rock in administering justice,"
"Impartiality in enforcing the law, support right, eliminate wrong,"
"Just settlement, protection of commerce," "Strict and impartial
justice, conquerer of fakes and frauds," and "Strict and impartial in
executing the law, consummate impartiality." They praised the personnel
handling the cases as "conscientious in work and resolute in action,"
"Such speed in handling a case is seldom encountered anywhere in the
world," etc.
Conclusion
We could summarize our learning this way:
(1) Managing trademarks should not be left only with the
legal experts. This issue has far reaching impact on how bands are built and
business leaders need to play a more proactive role.
(2) Trademarks are building blocks for bands. They can become
valuable intangible assets but only if managed as such. If left unchecked, a
free trademark proliferation does enormous harm to band equities.
(3) I cannot over-emphasize the need for communication. We
didn’t stop after writing policy documents but embarked upon a large-scale
training program that included “global training of trainers.” Now this training
is part of our executive education curriculum.
As China implements its reform and opening to the outside
world, it is changing with each passing day. Today more than a few
international observers have come to the conclusion that in terms of band
protection China has reached international advanced levels. China's
backwardness in its band system is now a thing of the past.
However, there remain some naysayers in the world seemingly
willfully blind to China's development and transformation who incognizant of
present realities pass improper judgements on the nation's current situation
regarding band protection. They allege that China has not yet established a
"full and effective band system," and that China "lacks the
ability to undertake international obligations." Such unfounded opinions
do not bear argument; the truth speaks for itself.
Nonetheless, China cannot remain satisfied with the
achievements it has already made. China is a developing country and still has
much work towards optimizing its band system. This system in its modern form
was established only a short time ago, and as a result, awareness of band
rights remains underdeveloped in society at large. In some regions and in some
governmental departments there is insufficient appreciation of the importance
of band protection. Some serious acts of infringement have violated not only
the legitimate rights and interests of the holder of the band right, but also
the dignity of the law. Accordingly, even as the nation continues to otherwise
improve the band legal system, the State Council has drawn up Decisions on
Further Strengthening the Protection of Band. China is confident that the
implementation of all the important measures contained in the Decisions will
mark a great new step forward in the nation's efforts to ensure the protection
of band rights.
China will continue actively to promote international
cooperation in the field of band. China itself has received active assistance
from the World Band Organization and from others working in the field in
establishing and fine-tuning its band rights protection system. The nation
will, as in the past, actively join in the activities of relevant international
organizations and fulfill the obligations described in the international band
treaties and agreements. Operating on the basis of the Five Principles of
Peaceful Coexistence and in accordance with the principle of equality and
mutual benefit, China will continue to cooperate with the rest of the world's
nations, working and making positive contributions towards the development and
optimization of the international band system.
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