Shadow Of "Shanzhai" Made In China

Whether in

Or

In other areas, the "Shanzhai" situation has always been there, of course, "Shanzhai" enterprises will not agree with this statement.

How to clarify the intellectual property disputes in the manufacturing field? Yang Ming, associate professor of Law School of Peking University, admitted that imitation is impossible to eliminate, but it should be limited.

"For example, someone can engage in chain operation, you can do it, but it can not be exactly the same in service mode.

The court can describe a relatively clear behavior boundary for enterprises through a series of precedents.

Otherwise, China's manufacturing industry will hardly have strong vitality.

The legal meaning of "Shanzhai"

In fact, "Shanzhai" is not a legal concept, but a news vocabulary used in the news media's reporting process.

The so-called "Shanzhai" situation contains many legal implications.

Ming told reporters that the word "Shanzhai" was not intended to be a license. It was used to describe "imitation of the mountain as king and mountain king". People now use it to express imitation, deliberately causing confusion and free riding, which is actually "imitation".

Another kind of expression is "plagiarism", commonly known as plagiarism, which refers to stealing other people's works or pieces of works as their own, which is the expression in the field of copyright law.

Therefore, the phenomenon of "Shanzhai" is correct in terms of trademark: it can easily lead to confusion or mislead consumers.

Of course, trademark identification may have copyright, so we can also use plagiarism to describe some form of trademark infringement.

Du Xiujun, a lawyer and patent agent of the Beijing declaration law firm, expressed the same view.

The "cottage" commonly used in news is actually a vague concept, which is not clearly defined by law. In life, it generally refers to the products produced by small manufacturers copying and copying famous commodities.

However, whether it is "Shanzhai" or "plagiarism", there will be some cases of infringing on other people's intellectual property rights.

For example, "Shanzhai" products may infringe upon others' rights of patent, copyright, trademark and so on. "Plagiarism" may infringe upon others' copyright and related rights.

What legal problems exist in Shanzhai?

It is understood that there are three types of legal basis for intellectual property protection in China.

First, the special legal basis includes the patent law, the trademark law, the copyright law, the anti unfair competition law, and the relevant administrative regulations and departmental rules under these legal frameworks.

Two, as a general rule of civil and commercial activities, the general principles of civil law, the property law, the Tort Liability Act and the contract law are also applicable to the protection of intellectual property rights.

Three, the relevant provisions of intellectual property crime are stipulated in the criminal law of the People's Republic of China, and criminal responsibility for relevant personnel can be investigated for serious violations of intellectual property rights.

In 2013, the 5 year lawsuit between sports brand "ADI king" and Adidas, a German sporting goods company, was finally terminated on the basis of reconciliation between the two sides, Adidas Wang's abandonment of their trademarks and Adidas's abandonment of claims.

Du Xiujun believes that this is a traditional case of trademark infringement of trademark rights.

The legal provisions of this case are relatively perfect, and there are many precedents in practice. It is easy to reach a common understanding between right and wrong. This is also why the king of ADI is willing to give up his trademark to reach a settlement.

In contrast, the dispute between basketball star Michael Jordan and Chinese sporting goods enterprise Jordan sports is different from the traditional trademark cases.

Yang Ming pointed out that the case of Jordan sports and Adi Wang is not the same. Michael Jordan itself is not a registered trademark, but Adidas is a trademark, that is to say, the prior rights are different, so the legal issues of disputes are different.

From the legal point of view, the main difference is that Michael Jordan and Michael Jordan advocate different rights. Michael Jordan advocates his right to name and portrait, while Adidas advocates his trademark right.

Yang Ming said that the focus of Jordan's sports case is whether it constitutes the basis for the plaintiff's right of name.

The Beijing high court dismissed the appeal or thought it would not infringe upon Michael Jordan's right to name, that is, "Jordan" does not constitute the only correspondence of Michael Jordan.

Xiu army believes that this case also involves the plation of English names. The legal provisions in China are not perfect enough, and there are no precedent precedents and judges are required to create rules.

Recently, Anke Martin, a sporting goods company in Fujian, launched the UncleMartian brand on the Internet. It was commented by netizens that LOGO is similar to American brand Andemar (UnderArmou).

In Yang Ming's opinion, whether or not the infringement is determined by the court.

"My personal view is that the content of the logo is not the same from the logo, but the whole logo design of encore Martins is very similar to the overall design of Andemar."

Yang Ming said there were similarities between the two.

Therefore, whether or not consumers will be confused or misled will be the standard of judging in such cases.

According to the provisions of the Trademark Law of China, the use of trademarks that are identical or similar to registered trademarks on the same commodity or similar commodity without the permission of the trademark registrant is a violation of the trademark right.

To determine whether the two trademarks constitute trademark infringement, we need to consider the approximate degree of the products or services used by the two trademarks, the similarity of the two trademarks, the comprehensive recognition of the factors such as the reputation of the prior trademarks, the cognition of the relevant consumers, whether the confusion or misidentification has been caused or not.

It can be seen that the phenomenon of "Shanzhai" in China's sporting goods manufacturing industry is constantly increasing, but the specific legal issues involved are not the same. It is necessary to obtain evidence according to the specific circumstances and whether the infringement is determined by the court.

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Shadow of "Shanzhai" made in China

At present, Michael Jordan refuses to accept the final judgment of the Beijing high court to maintain the "controversial trademark", and applies for retrial to the supreme law.

No matter what the final judgment is, the case has affected the development of Jordan sports.

As early as 2011, Jordan sports was planned to appear on the market the following year before the end of March. In February 2012, the former US basketball star Michael Jordan filed a lawsuit against Jordan's sports, and the company's listing plan was dragged on.

According to the twenty-eighth provision of the China Securities Regulatory Commission's "IPO and listing management measures": "issuers do not have significant risk of debt repayment, and there are no major or contingencies affecting continuing operations such as guarantees, litigation and arbitration."

Du Xiujun explained to reporters that as a sports apparel enterprise, the "Jordan" brand is the lifeline of Jordan sports. If losing the "Jordan" series of trademarks, the impact on Jordan sports is fatal, so the trademark case is definitely a major matter affecting the continuous operation and will affect the listing process of Jordan Sports.

Adi Wang, who had created billions of wonders in sales, lost the trademark of "ADI king" because of infringement. The final result of Jordan sports is not yet known; the tfeilong sporting goods Co., Ltd., which caused controversy on the Internet, has also attracted the attention of Andemar, a sporting goods company in the United States. In response to the media interview, the headquarters of Ande Ma denied having any commercial contacts and related cooperation with Fujian Ting Feilong, and said it would take some commercial and legal measures to resist such blatant infringement.

Obviously, "Shanzhai" and "nearby famous brand" have brought huge legal crisis and even subversive risks to enterprises.

In recent years, the number of intellectual property cases in China has been on the rise. The statistics on the judicial protection of intellectual property in China's courts (2015) show that in 2015, the people's court handled 149238 cases of intellectual property rights and concluded 142077 cases, representing an increase of 11.49% and 11.76% respectively over 2014.

Among them, the number of copyright cases is up to 66690, and the number of cases of unfair competition has increased by 53.38%.

For manufacturing industry, disputes mainly focus on trademark and patent infringement disputes.

"At present, there are a lot of imitation phenomena in China's manufacturing industry, so there are many copyright infringement and patent infringement disputes, and in terms of commodity sales, the situation of brand names is also very common."

Yang Ming said.

There are sports goods enterprises that reflect the existence of "plagiarism benefit, loss of money in innovation, and difficulty in proving evidence" in the industry. The fast speed and the high degree of similarity of "Shanzhai" products make the enterprises lose the power of innovation.

Yang Ming said frankly, the problem of tort compensation has always been a hot and difficult issue in the field of intellectual property.

"This problem is caused by both substantive law and procedural law, and, of course, the integrity of enterprises."

Yang Ming said that the current academic and judicial circles are discussing the institutional measures to improve the present situation.

In Du Xiujun's view, the main realistic reason for Shanzhai is interest driven.

From the legal point of view, the compensation for intellectual property infringement in China adopts compensatory damages instead of punitive damages, resulting in low amount of compensation in tort litigation, high cost of rights protection by the rights holders, little income or even negative income. The infringer has low illegal cost, and even if the accused is still able to make profits, he naturally flee.

Secondly, the power of obtaining evidence from lawyers is less, the power of obtaining evidence from the people's court is not enough, the execution of winning judgments is difficult, and the status quo of administrative law enforcement organs' nonfeasance is also the real reason for this problem.

Du Xiujun pointed out that the most fundamental reason for the emergence of "Shanzhai" and "plagiarism" is that China's market economy started late, and that the problems in the market economy were initially exposed. It has not yet formed a stable market economy and social rules, and the supporting legal system is not perfect. There are many loopholes in the system that can be drilled.

"If we do not crack down on" copycat "or" plagiarism "phenomenon and do not protect the innovation results of enterprises, we will seriously hurt the initiative of enterprises, which will eventually make Chinese manufacturing industry always at the bottom of the manufacturing food chain, and only rely on cheap labor force to get business opportunities.

Du Xiujun said.

In theory, whether policymakers, entrepreneurs or consumers know that innovation driven development is the development direction of China's manufacturing industry.

However, in the real business environment, entrepreneurs are faced with immediate interests and long-term interests, short-term development and long-term development. Facing the pressure of commercial competition, they face the pressure of sales directly. "Shanzhai" is not necessarily a "right" choice, but it is a useful choice.

Especially for small and medium-sized enterprises, the way to earn money is good method.

How can we cultivate the brand awareness and innovation consciousness of enterprises? Yang Ming said that in addition to the effective implementation of the existing laws, it should also constitute a credit system for the whole society and the market. Unfair competition and infringement of intellectual property rights are not only the problem of compensation for damages, but will also be difficult to make in the whole market, for example, there is a linkage constraint in the loan and enterprise annual examination.

"This is the so-called huge cost of illegal activities, so that enterprises gradually formed norms of conduct, integrity management."

Yang Ming said.

Du Xiujun also believes that the most fundamental thing to cultivate the brand awareness of enterprises is to improve the legal environment and increase the protection of intellectual property rights. In view of the problems of less compensation for intellectual property infringement, the difficulty of proving evidence and the low cost of infringement, we should adopt the judicial system of punishing compensation for intellectual property infringement, enhance the power of lawyers to collect evidence, and strengthen the enforcement of the people's courts, so as to establish a sound legal environment and guide enterprises to attach importance to brand building through interests.

In addition, we should give policy subsidies to innovative enterprises in policy, strike hard against "Shanzhai" and "plagiarism", and guide the market to guide the consumers to respect intellectual property rights.

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Yang Ming suggested that before the credit reporting system is available, enterprises can do the following things: timely acquisition of intellectual property rights and prevention of market risks, especially those involving overseas markets.

Du Xiujun suggested that enterprises should pay more attention to the protection of intellectual property rights, carry out intellectual property protection planning at the beginning of their business, set up an enterprise intellectual property inspection and reporting system, conduct intellectual property training for managers and staff regularly, and entrust lawyers to intervene in the event of intellectual property disputes.

Since China made 2025, the basic principle of "innovation driven, quality first, green development, structural optimization, and talent oriented" has become the leading direction of the development of manufacturing industry.

I believe that with the continuous improvement of relevant laws in China, the survival space of "Shanzhai" will also be narrower and narrower. Regardless of the size of enterprises, "innovation" is still the main theme of the "made in China" development of sporting goods industry.