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ABCOR speaker 11th China trademark Festival in Yinchuan

ABCOR speaker 11th China trademark Festival in Yinchuan

The annual CTA China Trademark Festival is one of the biggest IP conferences in China with over a 1500 attendees. MARQUES hosted the forum ’Chinese brands go to Europe’ in order to provide guidance on protecting and managing Chinese brands in Europe which was focused on administrative and enforcement procedures. Mirjam de Werd, trademark attorney at Abcor and vice chair of the Marques China Team, was one of the speakers and presented ‘enforcement of Chinese IP right in the EU’.

Her lecture was focused on case law and best practices regarding enforcement of Chinese brands in Europe. Her main objective was to provide our Chinese colleagues as well as Chinese brand owners some tips and tricks and the latest case law in order to assist them with enforcing their IP rights in Europe.

During the forum interesting topics were discussed including the most recent amendments to the Chinese Trademark Law and the consequences for brand owners regarding their IP rights in Europe due to Brexit. Also, the perspective from several Chinese and European companies regarding brand portfolio management and brand protection strategy was presented.

The forum was officially opened by Mr. Wu Dongping, the deputy general secretary of CTA and Dr. Uwe Over, corporate vice president of Henkel AG & Co. KGaA and past chair of MARQUES. The forum was moderated by Alessandra Romeo, MARQUES external relations officer, Mr. Yunze Lian, partner of Jadong IP law firm and member of the Marques China team and Julia Hongbo Zhong, vice president of Lee and Li – Leaven IPR Agency Ltd and chair of MARQUES China team.
Mr. Günther Marten, Minister Counsellor and EUIPO IP attaché at the EU Embassy in Beijing, provided a keynote regarding EU and China governments co-operation in IP in favour of business development and economic growth and focused on Geographical indications.

The forum consisted of 2 sessions where the following speakers presented:
• Betty Wang, Deputy IP director at Tencent and member of the MARQUES China team presented ‘trademark protection of Tencent in Europe’.
• Reinout van Malenstein, senior counsel at HFG law & Intellectual property presented ‘the dragon and the lady; best practices for IP enforcement in China’.
• Dr. Uwe Over, Corporate vice president of Henkel AG & Co. KGaA presented ‘Brand protection strategies for Chinese enterprises expanding to Europe’.
• Judge Zhang Xiaojin, Chief Judge in the Second Trial Division and Member of the Adjudicatory Committee of the Beijing IP Court presented some of the cases the Beijing IP court has dealt with in the past year.

If you want to receive a copy of Mirjam’s presentation and/or more information on regarding her experiences on this festival you please contact her directly at dewerd@abcor.nl (Source image: CTA photographers - Marques class 46)

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IP Quiz
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IP Knowledge Quiz Designs

The plaintiff specializes in online sales of children's bicycles. In safeguarding its rights, the company has registered the design of these bicycles under Community Design. Through a multiple design registration, the company secures the rights for 10 new versions of its children's bicycles simultaneously under Community Design. Subsequently, when the defendant introduces a similar bicycle, legal proceedings ensue. Among the various claims, the plaintiff alleges infringement of its design rights, which in turn is contested by the defendant. A design must possess novelty and individual character. The defendant states that the design lacks novelty, as elements of this design are already present in various existing bicycles. Essentially, the defendant's bicycles reproduce these elements, resulting in a lack of individual character. According to the defendant, the community designs are thus invalid. Even If the plaintiff's designs should be valid, the defendant argues that its bicycle deviates sufficiently. The defendant argues that the plaintiff has sought protection for more or less similar designs in the multiple design registration. Apparently, the plaintiff believes that these designs differ enough to create a different overall impression. The defendant's bicycles deviate just as much, thus creating a different overall impression (the so-called doctrine of equivalents argument). The question arises: are the plaintiff's bicycles valid designs despite comprising known aspects from various bicycles, or does the defendant's design exhibit sufficient deviation, thereby enabling the invocation of the doctrine of equivalents concerning the multiple design registration? The court determines that designers of children's bicycles enjoy considerable freedom in their designs. Consequently, if another bicycle lacks significant distinctions, it will quickly evoke a similar overall impression for the informed user, thereby lacking individual character. The comparison is drawn between the new design (the AMIGO bicycles from T.O.M.) and an older existing design (bicycle). To prove that a design is not new, you cannot, as Prijskiller (the defendant) asserts, mosaic together various elements. Therefore, as a defendant, you cannot argue that a design is not new because its characteristics are present in various different products (see also the judgment Karen Millen). If, as a designer, you combine different aspects from multiple designs for the first time into a new product, then this is simply a new and valid design. This is the case with the AMIGO bicycle. The design is upheld as valid. The AMIGO Magic bicycle features a unique tubular frame, rendering it novel. The bicycle is further distinguished by the name MAGIC, the chain guard design, and accessories such as a basket, handlebar streamers, and doll seat. Prijskiller contends that its frame shape differs (being thicker) and that the drawings are positioned differently. Additionally, Prijskiller highlights the distinct color scheme; however, TOM has registered the designs in line drawings, thus disregarding this element in the evaluation. Nevertheless, several similarities are apparent. Both bicycles exhibit an almost identical pattern of butterflies and flowers, positioned nearly identically on the frame. Furthermore, the name MAGIC is depicted in the same font and placement on the chain guard. Consequently, this bicycle fails to evoke a different overall impression for the informed user. The designer's extensive creative freedom in designing children's bicycles means that the differences highlighted by Prijskiller are minor and inconspicuous. Prijskiller's invocation of the doctrine of equivalents is likewise dismissed. The court opines that this case pertains to models concurrently deposited by T.O.M. This circumstance precludes the invocation of the "doctrine of equivalents" because, in compliance with the regulations regarding novelty, individual character, and the grace period, the various models cannot diminish each other's novelty or individual character, nor their scope of protection. In essence, in simultaneous (multiple) deposits, the "doctrine of equivalents" holds little significance. Consequently, these 2Cycle Magic bicycles fail to impart a different overall impression for the informed user. The designer's extensive freedom in designing children's bicycles and the minor differences highlighted by Prijskiller render the infringement claim upheld.
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