Brand Protection, Business Tips, Copyright, Intellectual Property, Trade Marks, Uncategorised

Safeguarding Your Intellectual Property in China

China

By Kate Ritchie, Ethikate Principal Lawyer and Trade Marks Attorney

 

China. It’s one of the largest markets in the world and Australia’s primary trading partner, two attributes that make it extremely attractive to many Australian businesses looking to get their products to market affordably.

With its many benefits as a manufacturing capital, China is notoriously one of the world’s infringement capitals, which is why it is crucial that business owners expanding there understand how to protect their Intellectual Property.

With its many benefits as a manufacturing capital, China is notoriously one of the world’s infringement capitals, which is why it is crucial that business owners expanding there understand how to protect their Intellectual Property.

I have just returned from China after visiting with a client and the trip reminded me of some of the key differences when it comes to IP protection between that country and Australia.

Most important are the differences in trade marking. Unlike Australia, China is a ‘first to register’ not a ‘first to use’ state. This means that even if you are the first to use a brand in China, unless it has been registered via the lodgement of a China trademark application, it is not protected.  Therefore, anyone who is aware of your brand prior to its registration can obtain a trade mark and prevent you from using your product in China. This has caused headaches for well-known brands, including Tiffany & Co and Tesla.

Patent and design applications do not differ as significantly and the process is more comparable to Australia. In China, business owners have two patent options.

The first is an innovation patent that is equivalent to Australia’s standard patent and carries a term of 20 years. The second option is a utility or ‘mini’ patent, which carries a shorter term of 10 years. China’s utility patent option is somewhat comparable to Australia’s design registration system. It simply requires you to apply to register your design in China before you launch the product and the registration is valid for 10 years, the same as Australia.

Given counterfeit goods and cheap knock off products are commonplace, China is notorious for IP breaches and can be an extremely difficult country to do business in.

So before expanding your business into China there are some key steps you must take to protect your brand and your business:

 

  • Have potential business partners and manufacturers sign a confidentiality deed or non-disclosure agreement before entering into any discussions. Preferably have all documentation in both English and Mandarin or Cantonese.
  • Apply to register your trade marks, designs and patents in China as soon as possible and give consideration to registering the trade mark in both English and Mandarin or Cantonese.
  • Enforce your rights. Monitor the market and don’t be afraid to take action against infringers as it’s essential to maintaining the reputation and value of your brand. We work with reputable attorneys in China and can assist with this often daunting process.
  • Understand the manufacturing process in China. Verify the manufacturing company you are going to be working with and don’t settle for not having a proper manufacturing agreement in place. This agreement should also be in English and Mandarin or Cantonese, depending on the province in which your manufacturer is based.

Ethikate offers a range of affordable packages specifically designed for startup founders and small businesses, including our $199 Initial Consult. If you have any questions about small business law, including Intellectual Property, Trade Marks and Brand Protection, feel free to get in touch. We’d love to hear from you!

Business Law, Business Tips, Company Law, Consumer Laws, Internet and ecommerce, On the Blog, Partnership Law

Beware the Fine Print in Generic Legal Documents

Businesswomen Creative Inspiration Occupation Concept

 

By Kate Ritchie, Ethikate Principal Lawyer and Trade Marks Attorney

It is becoming increasingly common for Australian business owners to turn to the Internet when seeking legal information.

Falsely believing that legal documents are ‘standard’ and lured by lower prices and the immediacy of information, founders are unknowingly investing in extraneous documentation that is putting their business at risk.

Though generic, downloadable documents may appear to be a convenient and economical alternative to traditional legal advice, they are potentially harmful to businesses. Generic legal documentation may not be tailored to address a company’s specific needs and leaves business owners unaware of their liabilities and therefore open to possible litigation.

As the legalese in these documents can be difficult to decipher, it is not uncommon for information to be misunderstood and irrelevant material mistakenly selected by business owners. Use of contracts that fall under the wrong jurisdiction is a common problem. For example, a Melbourne based business using contracts and agreements with terms governed by the state of California. This makes it apparent that the information has been obtained from an unreliable source and leaves the company completely unprotected.  Another error often made is the publication and use of policies that the business may not legally require, such as a privacy policy. It’s risky, as the business is unknowingly accepting unnecessary responsibilities and may be making false statements.

Simple and avoidable mistakes made due to misunderstanding information can create a myriad of issues for businesses from both a legal and reputational standpoint. These oversights undermine a company’s credibility and will not go unnoticed by sophisticated clients, irreparably damaging the positive reputation business owners work tirelessly to build.  Additionally, costly litigation that may arise due to false claims or copyright infringements is financially and emotionally catastrophic and can destroy a business.

There is no one-size-fits-all legal documentation; every business requires tailored contracts and policies.  Savvy business owners need comprehensive advice and documentation to enable them to mitigate these risks from the outset and protect their two most valuable assets; their intellectual property and their brand.

Ethikate offers a range of affordable packages specifically designed for startup founders and small businesses, including our $199 Initial Consult package. If you have any questions about small business law, including Intellectual Property, Trade Marks and Brand Protection, feel free to get in touch. We’d love to hear from you!

About the Author:  Kate Ritchie is a strategically focused Principal Lawyer and Trade Marks Attorney with both commercial and business services and legal experience. Kate has broad ranging competency in all aspects of legal services including intellectual property law, brand protection, commercial and business transactions, negotiation and alternative dispute resolution, internet law, privacy, competition and consumer law and sports law. Kate has worked with top-tier commercial law firms such as Clayton Utz and high profile companies such as Thiess Pty Ltd and Tatts Group. Kate founded Ethikate in 2014 with a passion for providing specialist advice and services in Intellectual Property Law, Trade Marks and Brand Protection Strategies, business and commercial law and entertainment and media law for startups, entrepreneurs and small to medium businesses.