China takes strides to protect Olympic marks

China

Beijing won the bid to host the 2008 Olympics in August last year, so beginning a race to protect the Olympic symbol, flag, motto, anthem and expressions.

The PRC's intellectual property (IP) legislation already offers an acceptable level of protection to the distinctive Olympic elements. However, in view of the requirements under the Olympic Charter and the Host City Contract (ie, to protect and enforce Olympic-related IP rights), the PRC authorities are keen to ensure that all uses of Olympic elements are properly monitored. Therefore, they have promulgated new regulations to recognize and protect Olympic-related IP rights, enhancing the existing IP regime.

Most recently, the Regulations on the Protection of Olympic Insignia came into force. The scope of the new regulations encompasses not only the Olympic symbol, flag, motto, anthem and expressions, but also the names, emblems and symbols of the China Olympic Committee, the Beijing 2008 Olympic Bid Games, the Beijing Organizing Committee of the 2008 Olympic Games, the 29th Olympic Games and other symbols prescribed in the Olympic Charter and the Host City Contract.

The regulations provide that the respective rights of the above-mentioned entities shall be determined in accordance with the Olympic Charter and the Host City Contract. They also define what is meant by 'use for commercial purposes' and require that all Olympic elements and licences for their use must be recorded with the State Administration for Industry & Commerce (AIC).

Under the regulations, a party to an infringement dispute may elect to resolve the dispute by mediation. If either party refuses to mediate or mediation is unsuccessful, a complaint may be lodged with the AIC or a civil suit may be filed with the court. The court may order an injunction and confiscation of the infringing items and related tools. In addition, the court may order the confiscation of illegal gains and impose a fine of not more than five times such illegal gains. If there were no illegal gains, a fine of not more than Rmb50,000 may be imposed. In addition, compensation will be payable to the owners of the relevant IP rights.

The State Administration of Customs has announced its intention to protect Olympic-related IP rights pursuant to the regulations and to confiscate any infringing items being imported or exported. It has therefore implemented Measures for the Recording and Administration of Olympic Insignia. These measures require the owners of the Olympic insignia to record the insignia and any licence to use such insignia with the Trademark Office. Any licence to use Olympic insignia must be in writing and must be recorded within one month of its signing. Licences shall include the particulars of the Olympic insignia, its record number, the licensed products or services, the licensed territory and the duration of the licence. Any party in contravention of these measures shall be liable to a fine of up to Rmb10,000.

Kenny Wong, Johnson Stokes & Master, Hong Kong

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