Does The Chinese Clothing And Footwear Industry Have Intellectual Property Rights? How To Protect Their Intellectual Property Rights?

At present, our country is at the crossroads where the intellectual property system is perfect.

Although the protection of far from being in place and the limitation of rights which are still lacking, in general, that is, before and after the authorization, the problem of intellectual property rights protection needs to be resolutely pursued.

The protection of intellectual property rights in garment enterprises is one of the important aspects of shaping a good business environment.

However, the importance of clothing enterprises is different, resulting in the negative impact and economic losses caused by intellectual property disputes.

Clothing enterprises themselves should establish and strengthen the awareness of intellectual property protection, and should take protective measures rooted in every aspect of production and operation of enterprises.

In August 2016, a 27 year old designer, Tuesday Bassen, from Losangeles, USA, accusing the famous clothing brand Zara of plagiarism on Twitter. The designer immediately won the support of more than 20 famous designers.

Designers who claim to be plagiarized are competing for pictures and accusations on the Internet. They again stamp the soft rib of fast fashion brands, and also make the protection of original clothing design the focus of public opinion.

Generally, the importance of intellectual property protection is high.

Enterprises in the industry, and the importance of clothing industry (manufacturing and retail) enterprises to this piece has not been high or even dispensable, especially clothing retailers.

However, the negative impact and economic losses caused by intellectual property disputes are very large.

Whether it is the loss caused by the infringement to the obligee or the sanction of the judgment on the infringer, both parties will suffer losses due to intellectual property cases.

These data and the causes of each case dispute, the focus of controversy and the trial results reflect the biggest legal risk of Chinese clothing enterprises at present stage, namely, intellectual property legal risks.

External legal risks of enterprises

This aspect mainly refers to the risk caused by the external environment of the garment enterprises.

It mainly includes the following two categories:

(1) "near brand" behavior

Near name brand is a phenomenon of unfair competition, unauthorized use of the name, packaging, decoration of well-known commodities, or the use of similar names, packaging and decoration with well-known commodities, resulting in confusion with well-known products of others.

[1]

The fifty-third provision of the current regulations on the implementation of the trademark law stipulates that the trademark owner may apply to revoke the name of the enterprise by registering the competent authority of the enterprise name for the purpose of registering the well-known trademark as an enterprise name, which may deceive the public or cause misunderstanding to the public.

The authorities responsible for the registration of enterprise names shall be dealt with in accordance with the provisions on the administration of the registration of enterprise names.

The thirteenth provision of the cognizance and protection of well-known trademarks stipulates: "if a party considers that another person's registration of his well-known trademark as an enterprise name may deceive the public or cause misunderstanding to the public, he may apply to the authorities responsible for registration of the enterprise name to cancel the name of the enterprise, and the registration authority of the enterprise name shall be dealt with in accordance with the" Regulations on the registration of enterprise names ".

(two) whether clothing is a practical art, should it be protected by the copyright law?

Whether the clothes can be made up of works or not, the works listed in the second article of the Berne Convention on the protection of literary and artistic works are not included in the works.

The practical works of art are not clearly enumerated in the types of works protected by the copyright law. However, in the definition of fine works, the copyright law implementation Ordinance adopts a non exhaustive way, that is to say, "fine arts" refers to "painting, calligraphy, sculpture, architecture and other lines or colors or other forms of aesthetic or graphic art works."

There is no specific provision in the copyright law, but in judicial practice there are cases affirming and negating.

Therefore, it is precisely because the law does not expressly stipulate whether clothing is a practical art work, and what kind of clothing is to achieve the realm of works of art is benevolent and benevolent.

Two, internal legal risks

This aspect mainly refers to the risk caused by clothing enterprises themselves or omission.

(1) first issue products, then apply for patents.

Clothing has a strong timeliness, a style may only be popular one season.

If you first publish the product and apply for a patent, the patent certificate is likely to become waste paper immediately.

In the fortieth article of the current patent law, the patent right for utility model and design will come into force from the date of announcement.

Therefore, the effective date of the design patent is the date of the announcement, starting from the date of announcement.

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(two) infringing on business secrets and vicious competition

The definition of trade secrets in the Anti Unfair Competition Law refers to technical information and operational information that is known to the public, can bring economic benefits to the obligee, and is practical and protected by the obligee.

In technological information, processes, procedures, recipes, designs, materials, equipment, or combinations of them are included.

In practice, in the clothing industry, every new product needs a large amount of initial research and development cost.

In order to save costs, plagiarism and imitation become the trend among businesses. In particular, enterprises are troubled by the fact that employees use their business secrets to produce infringing products and low price competition.

From the past year's criminal cases of infringement of intellectual property rights, employee leakage cases mainly include three categories: the first category is to clone patented clothing; the first is to use the mastered list of the original business customers after the employees leave, or to establish direct trading relationship with the original business customers, or to pull the original business customers to the new owners, resulting in the loss of the original enterprise customer resources and the decrease of their business income; the third category is the loopholes in the negligence of the employees and the secrets of the security measures by the incumbent employees, which is the latest state of affairs for the spy to disclose to the competitors, especially the fashion design style.

In particular, clothing accessories become the hardest hit areas of crimes of infringing trademark rights and infringing trade secrets, mainly due to low technology content, high profits, large social demand and good sales.

Three, avoiding intellectual property legal risks.

There are many practitioners, and it is not easy for enterprises in the industry to stand out.

In addition to improving traditional business models, we should also pay attention to brand building.

While protecting the brand advantage of an enterprise requires intellectual property assistance, how can we avoid the risk of intellectual property?

(1) conditional Chinese enterprises should set up enterprise names consistent with brand names.

Famous brands or rising brands in China, in order to prevent malicious third people from using their own brands to set up companies in the non mainland areas, they should rush to do the job as soon as possible. For example, companies registered with brand names in Hong Kong, Macao, Taiwan and other regions are the first to block the way of Third People's evil intent to rush, and second is to lay the foundation for their own brand development.

Moreover, the cost of application is not high, and the procedure is very simple.

(two) protection of patent right and copyright

Judging from the current situation of the domestic laws and the practice of judicial precedents, whether clothes belong to copyright protection works still need to be discretionary by judges, while clothing as a design patent can be protected by the patent law. However, because of the strong timeliness of clothing and the high similarity of clothing styles, the success rate of apparel patent application is relatively low, but enterprises should establish a sense of "design patent".

Second, if there is not enough time to apply for a patent, a garment designed to be listed will be able to seek copyright protection. The active measure is to apply for copyright registration for the pattern design of clothing.

Although copyright protection has always been controversial, copyright registration is beneficial.

The first is the exhaustion of preventive measures. No matter whether the copyright registration authorities have accepted the registration, they have applied for their own regrets. Second, it is clear that the subject of rights is, if the successful registration is infringed, the right person will not bother to prove that he is the copyright owner. Third, when the court examines whether copyright has been made, the copyright registration has undoubtedly allowed the judges to prefer copyright.

(three) actively adopt confidentiality measures to protect trade secrets

Secrecy is a long-term, arduous and comprehensive work. There is no magic trick. It can only be a comprehensive layout of the defense. It can not be mechanically expected that two strokes will be effective.

Enterprises should first have the awareness of protecting business secrets, and secondly, set up multi-level protection measures, including controlling the number of people who have core business secrets, managing personnel with trade secrets in a hierarchical manner, signing confidential agreements with all those who may be involved in business secrets, and making clear matters that need to be kept confidential according to the needs of enterprises, signing a competition restriction agreement with all those who may contact business secrets, and giving financial compensation within the time limit of competition after termination or termination of contracts.

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In addition to improving the relevant enterprise management system, there are confidential measures at the technical level, for example, the computer monitoring of the secret personnel and the monitoring of the USB interface and the monitoring of the external network connection. In the production stage before the listing of clothing, it is forbidden to enter the production workshop with unrelated personnel or foreign personnel in the workshop, strictly control the number of products and prevent outflow of enterprises.

(four) the Ministry of justice or the full-time anti-counterfeiting department will monitor the market trend at any time.

The Ministry of legal affairs or full-time anti-counterfeiting departments should keep sensitive to the market, monitor the competitors' movements and market trends at any time, discover products that infringe on their rights in time and enterprises that use unfair means and compete with themselves, carry out statistics and analysis in a timely manner, find the targets, and adopt different ways and strategies to combat them according to the specific circumstances.

Four, conclusion

In order to shorten the leap from manufacturers to brand dealers, the protection of intellectual property rights is imperative.

In addition to the need to strengthen the legislation of intellectual property rights in the apparel industry in the external environment, it is necessary for clothing enterprises to establish and strengthen the awareness of intellectual property protection, and to take protective measures rooted in every aspect of production and operation of enterprises.

For clothing with unique design aesthetics, it should be protected accordingly, such as copyright registration, ready for active rights protection.