Op-Ed Commentary: Chris Devonshire-Ellis
Mar. 12 – Much media attention and legal opinion has been directed towards the on-going Apple vs. Proview iPad trademark case in China, with special mention for the extensive and detailed coverage provided by Stan Abrams on his China Hearsay blog. Stan is based in Beijing and is an IP lawyer.
One aspect that has been missing from the debate concerning the case is the position of the Chinese government. This is a significant omission, not least because the Chinese judiciary is not independent of the government. Judges are appointed with their political affiliation being counted as the most important item on their list of credentials. This leaning towards the political nuances of China’s ruling Communist Party is placed at a higher premium than any actual legal expertise. This means that in effect, party policy overrules the existing rule of law, on the basis that as the government makes the laws, it can also interpret them as it wishes. Hence the common, yet apparently contradictory judgments handed down to errant Chinese nationals who contradict or criticize the party line. The artist Ai Wei Wei is the most recent example, noted for outspoken criticisms of the Chinese regime, his detention and being fined for unpaid tax was viewed by many as an abuse of the laws concerning incarceration, and details concerning the exact circumstances over his unpaid taxes remain obscured.
The Chinese government will also be taking a keen interest in the Apple vs. Proview trademark case, but to date has seemingly remained out of the picture. No doubt there have been high-level talks about the matter, not least when China’s president-in-waiting Xi Jinping recently visited the United States. The case was almost certainly to have been discussed.
The Chinese government, though, is playing a strong hand. By seemingly remaining out of the sphere of influence, and letting the case roll on through the Chinese courts, it seems to be a message that the West will be familiar with – let the matter be brought to its conclusion through the Chinese legal process, and the correct result will prevail. In doing so, the government is being seen to allow the case, which no doubt is injuring concerns about IP rights in China, to be determined through the legal mechanisms that exist to deal with such disputes. China has far more to gain by appearing to act according to the rule of law rather than by directly influencing the outcome.
I am sure then, that Apple will prevail; it is not in the Chinese government’s interests for them not to. However, the government – by remaining aloof from the matter and allowing the legal process to dominate proceedings – is also being very smart. Showing the world’s lawyers and governments that due-process exists and works in China is a major benefit to them.
Whether or not this actually extends to any serious movement to separate the judiciary from the government remains to be seen. Those interested in the case may care to ponder that what on the surface appears to be a dispute working its way through a well thought-out and reliable legal system in China may be rather more a PR opportunity. This case offers the chance to smooth over the fact that when politics comes into China’s courts, the government is never very far behind, and the Apple vs. Proview case does not necessarily signify any actual shift of movement towards an independent legal system, or the reliability of the same.
Intellectual Property Rights in China (Second Edition)
From covering protocol for dealing with trade fairs, to the application processes for trademarks, patents, copyright and licensing, as well as dealing with infringements and enforcement, this book is a practical reference for those concerned with their IPR in China.
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In which we take the overseas executive through varying stages of legal, financial and operational due diligence and highlights common areas of concern. Importantly, the report discusses areas of manipulation that can exist in the examination of Chinese companies, including legal documentation, techniques of assessing financial statements, asset checks such as land use rights, fraud within human resources claims and how to evaluate government involvement and liabilities.