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Licensing or franchising your brand in China

China licensing lawyer

 

One of my US lawyer friend asked me a questions regarding franchising law and practice in China. As an experienced franchising lawyer in China, I gave some practical and professional advice to him. Below is a brief summary of our discussion.

Questions he asked:

I represent a US based franchisor who has no franchisees or operations outside of the states.  They have been approached by a company that wishes to act as their "Licensing Agent" in China, where they will license my clients name/logo in China for use with the same business (retail).  The franchisor will offer little or not services to the licensee, nor will it sell them any product. It will have little to no say over what they sell, prices, advertising, etc.  quite simply, all they seem to want is the franchisor's name.  While I understand the dangers of not strictly controlling the franchisor's IP, is there anything else that I am missing?
Please be gentle!

 

Scam towards China franchise or licensing lawyer

China franchise lawyer

 

Recently I have received a number of emails purporting to be from a number of different high-ranking individuals based in an overseas company. The company itself is legitimate, and a simple Google search confirms that the people who have supposedly sent me the emails are high-ranking individuals at the company. Moreover, the company appears to be a large and very well-capitalized one. The multiple emails I received are from several different "officers" of the company. Each of the emails looks basically the same, and each one of them originates from a gmail address from one of the supposed officers.

Interestingly, unlike the dozens or hundreds of other scam emails I've received, this one appears to specifically be targeted at franchise attorneys. The initial solicitation that I've received from every one of these alleged officers says something along these lines:

We had a franchise agreement with a company in your area and we would like to retain you to resolve this matter. If you are interested please advise us on your initial retainer fee we shall forward you the agreement for you review.

Scammer Name

 

Registering your software copyrights in China - China Copyright Lawyer

 

The rapid development of China's software industry is evidenced by the increasing amount of software copyright registration. Software copyright in China in Chinese Law means that creator or other oblige enjoys exclusive rights of the software under related copyright law. It is a civil right and has the common features of all the civil rights. Copyright is an exception in intellectual property right because it is owned without individual confirmation. This is usually called as principle of “automatic protection”. The copyright owner enjoys right of publication, right of authorship, right of consent to use, as well as right of being paid.

What is protected by copyright?

Copyright protects works such as written material, music, photographs, audio-visual works, graphics, architectural works and computer software.

 

Trademark Registration Basics in China

Trademark Registration in China

Trademark registration in China is governed by The Trademark Law of the People’s Republic of China, which was first adopted in 1982. The State Council promulgated Regulations on the Implementation of the Trademark Law in 1983. The Trademark Law was revised in 1993 and 2001, and in 2002 new Implementing Regulations were issued, in part, to bring China’s trademark legislation into compliance with the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). The revised Trademark Law extended protection to collective marks, certification marks and three-dimensional symbols, as required by TRIPs.

Professional Advice

Engage the assistance of legal professionals with both China and IPR expertise early in the process, and involve them in the development of your overall Chinese business strategy. Membership in anti-piracy organizations can also help.

Registering a trademark allows your company to leverage its brand and prevent others from using your name or trying to confuse customers with a similar brand. It does take some time and modest resources to register a trademark in China but the alternative – exporting to China without a registered trademark – would leave your brand unprotected and open to considerable risk.

Why should I register my trademark in China?

Your registered trademarks in Canada are not applicable in China. Therefore, if you see good opportunities in China and are looking to remain in the market for the medium to long-term, then it is important to have your IP taken care of right at the beginning. China is a first-to-file country meaning that, all else being equal, whoever applies for a trademark first, will obtain the registration. Unless you can manage to do business without your existing brand, seriously consider registering your trademark in China.

 

China trademark law, China trademark lawyer

China trademark law, China trademark lawyer

Owners of registered trademarks have the ability to prevent others (i.e., their competitors, partners in China, we had clients that found out their trademark was registered by their supplier in China and other third parties) from using their registered trademark without permission. As experienced China Trademark lawyer, we have been helping our clients applying trademark in China.

Your registered trademark can also successfully prevent others from (A)- acquiring trademark rights in your trademark, and/or (b)- claiming that you are infringing their trademark rights. Trademark Infringement actions can be costly. Few companies have the financial strength to overcome the full or partial loss of their right to use their own business name or product name. Consequently, trademarks are critical business assets. Coca-Cola is commonly believed to be the most valuable and admired trademark worldwide.

 
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I am a licensed China lawyer. Most clients are foreign nationals and companies. China Lawyer Blog have associates in Beijing, Shanghai, Tianjin, Guangzhou, Suzhou, Nanjing, Qingdao, Fuzhou, Hainan, Hefei, Wuhan, Xian, Changsha, Xiamen and Hangzhou. Learn More

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China Lawyer BLog AuthorPeter Zhu, an experienced China attorney licensed to practice law for more than ten years, the author of this China Lawyer blog, welcomes any enquiry or consultation related to Chinese law.