Trade Mark Law in the People's Republic of China (review)

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Reviewed by: Trade Mark Law in the People's Republic of China Pitman B. Potter (bio) Tan Loke Khoon and Clifford Borg-Marks. Trade Mark Law in the People's Republic of China. Hong Kong, Oxford, and New York: Oxford University Press, 1998. xiv, 260 pp. Hardcover HK $425.00, ISBN 0-19-586660-6. The opening of China's economy to foreign investment has seen a steady expansion in the presence of foreign companies and products in the PRC. Protecting products and company goodwill has been a major concern of foreign investors since the earliest days of the "open-door" policy. Not surprisingly, therefore, among the first pieces of legislation enacted to encourage foreign investment was the 1982 Trademark Law. In the ensuing decade-and-a-half, an impressive array of legislative enactments and amendments, regulations, and administrative edicts have been issued governing the registration, administration, and protection of trademarks for Chinese and foreign businesses. As well, China has acceded to virtually all of the international treaty regimes pertaining to trademark protection. Khoon and Borg-Marks' Trade Mark Law in the People's Republic of China provides a useful survey of these and other activities pertaining to trademark law and practice in China. After an initial effort to provide historical and cultural context, the bulk of the volume is devoted to practical issues of registration and enforcement. Written by legal practitioners, and presumably aimed at a similar audience, the volume provides information on the administrative structure for trademark registration and enforcement. The authors offer an extensive discussion of the procedures governing applications for trademark protection and for challenging the trademark applications of others. Licensing and assignment issues are also dealt with, as are the all-important questions of infringement and trademark enforcement. The volume contains specific discussion of the administrative and judicial procedures for enforcement and notes the increased role of criminal penalties in trademark infringement. Also included are a few interesting case studies, although it is unclear how representative these are of broad patterns of performance. The authors address other issues of intellectual property rights—notably copyrights and patents, although the treatment here is rather cursory and the wisdom of including it in this volume is questionable. The book also offers helpful appendixes containing translations of the PRC Trademark Law and its Implementing Regulations, as well as a listing of related laws and regulations. As a general survey of existing rules and procedures for the registration and enforcement of trademarks in China, the book makes a useful addition to the practitioner's library. This is not a scholarly work, however. In their discussion of historical and cultural contexts, for example, the authors ignore (or least fail to acknowledge) the rich body of published work already available on the development of intellectual [End Page 462] property law in China. This not only does a disservice to other experts in the field, but undermines the authors' own credibility and the overall quality of the volume. Similarly, with their attempt to provide cultural context by discussing language issues attendant to trademark registration, the authors do little more than repeat (again without attribution) what many other experts on China and the Chinese language have written previously. This is not simply an issue of footnoting. For had they looked more carefully to the existing scholarly literature and had they endeavored to provide a more detailed analysis of historical and cultural contexts, they might have been able to explain better the specific linkages between these factors and trademark practices in China today. As well, there are significant omissions in the discussion of international and administrative aspects of China's trademark system. The treatment of Sino-U.S. negotiations on intellectual property is incomplete. The authors ignore the 1989 Sino-U.S. Memorandum of Understanding (MOU), which addressed the need for stronger protection of all intellectual property rights including trademarks, and which set in motion a process of negotiations over IPR that led up to the agreements of 1992 and 1995. The authors also fail to discuss the significance for trademark protection of China's application for accession to the GATT and the WTO, with the associated obligations of the TRIPs agreement on trade-related...