Updating IP: Shanghai Addresses its own Intellectual Property Concerns

By Alan Adcock, Rouse and Co. International, Shanghai

The people's courts in China have recently handed down decisions in three landmark intellectual property cases. The Beijing Higher People's Court held in the Lego case that in addition to normal protection as design patents, industrial designs that qualify as works of applied art will be afforded copyright protection in China as well. In Honda, the same court ordered the State Intellectual Property Office to reinstate a design patent; it thereby effectively adopted the international standard of the overall look of the product, as opposed to the Chinese standard of the overall look of the design to determine the question of novelty. Further, the Shenzhen Intermediate People's Court reached an important trademark decision in Nike, where the definition of "use" of a trademark was expanded to include OEM manufacture of goods made solely for export.

Most commentary that we've seen has applauded these decisions as important steps towards realization of China's promises to increase intellectual property protection pursuant to its WTO commitments. While the government made major updates to various intellectual property legislation in the run-up to WTO accession and thereafter, it seems to be the people's courts that are taking the lead in bringing China's IP laws up to international standards.