Реферат: Protection of band names
Реферат: 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.
In the days
when a band names would have to wait until one particular judge had time to
hear it, there could be a significant delay between the issue of proceedings
and trial. As a result, many (perhaps most) band names were dealt with
conclusively at an interlocutory hearing, maybe even ex parte. A plaintiff
would be unhappy at the prospect of waiting months for the trial to start and
would often want to seek an interlocutory injunction right at the outset to
stop the defendant doing whatever wrong he was accused of. An injunction would be
granted if the plaintiff had a strong arguable case, if the balance of
convenience favoured it (the plaintiff would suffer irreparable harm if the
defendant were allowed to continue: the defendant could be compensated if the
injunction were wrongly granted) and if the plaintiff gave a cross-undertaking
in damages to guard against that eventuality.
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.
With the
implementation of China's law on band protection and the increasing improvement
of the judiciary's protective power, people's courts at various levels in China
have accepted and decided a large number of civil disputes concerning band
rights. A total of 3,505 cases concerning band rights disputes were accepted and
handled by people's courts throughout the country from 2006 to the end of 2008,
1,168 of which concerned copyrights, 1,783 patents, and 554 trademark rights.
The people's courts in accordance with the law defend the legitimate rights and
interests of the foreign and domestic band rights holders through trying cases
concerning band rights disputes. For example, the inventor of a new
"technique for sinking piling using drill holes," brought a suit
against the Beijing Subway Foundation Engineering Company to determine
ownership of the patent on the invention. After trying the case, the Beijing
Higher People's Court held that this invention was not a service invention as
described by the Patent Law, so the patent right belonged to the inventor and
not to his employer. In another example, Hong Kong's Sendon International Co.,
Ltd. brought suit against Shenzhen's Huada Electronics Co., Ltd. for trademark
infringement. After hearing the case, the Shenzhen Intermediate People's Court
ruled that the trademark "SENDON" was registered in China mainland by
the plaintiff and should be protected by law. The defendant's use of the
trademark "SENDON" on the same commodity sold by the plaintiff under
that name constituted infringement on the rights to exclusive use of a
registered trademark. The court decided that the defendant should pay the
plaintiff 468,314.4 yuan in compensation.
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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