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The Ethics, The Law And Other Nuiscances Of Intellectual Property Infringement For Fountain Pens Users, Makers Etc.

intellectual property infringement china

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#21 garyc

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Posted 25 January 2018 - 13:32

Everything is fair game in China: pens, swiss army knives even perfect knock offs of the Merkur Futur adjustable razor. I am not an expert in patent law but whether expired or not you cannot get judgment against Chinese makers easily though Victorinox recently won nearly 10 million damages and a recall from a company in the US marketing knock off saks. If the Parker's patent is still valid (no idea) and someone like Goulet marketed them there could be a case for litigation I guess.

I think that's the point: the owner of a US patent can sue a US manufacturer of an infringing product directly, but with a foreign manufacturer (e.g. Chinese) of an infringing product, their only recourse is to sue the importers, sellers or (possibly) users of the infringing product.

 

To sue a foreign manufacturer, they'd have to own a patent in the country of that manufacturer. Since applying for patents in every country in the world would be prohibitively expensive (well, even more prohibitively expensive than applying for one single patent already is ...), most will opt to file for patents in the countries where the main markets for their own products to be protected are, thereby preventing local manufacturers competing by selling infringing products. 

 

Note that simply owning a patent doesn't prevent anybody else from doing anything they want: it merely gives the owner the right to sue for infringement. It also seems that, at least in Europe, IP rights holders can apply to have customs enforce their IP rights on imported goods (presumably by seizing the goods) - see "3.1 I hold an intellectual property (IP) right; how do I apply for protection?" at https://www.gov.uk/g...property-rights

 

In an idle moment in my lunchbreak, I delved into what the requirements might be to make such an application and I found this statement "Regulation (EU) No 608/2013 does not set out any criteria for ascertaining the existence of an infringement of an intellectual property right (recital 10). The question of whether an intellectual property right is infringed is a matter for substantive intellectual property law, as interpreted by the competent national courts and the Court of Justice of the European Union." - IANAL but I would imagine that might mean you need to have successfully sued in a court and received an injunction on the import of the goods, then you could apply for customs to seize the goods at the port of entry. Or it might not, who knows where lawyers are concerned??  I suspect it's easier to prove infringement when you have totally counterfeit goods posing as the real thing (with same logos, trademarks, packaging etc.), maybe less so when it's a product infringing some patent protected internal mechanism, say.

 

Anyway, the long and short of it is that there would probably have to be real damage inflicted to an IP protected product (financial or brand image) before it becomes worthwhile exercising IP rights through the courts. A few hundred pens with Parker or Lamy look-alike attributes being individually shipped to FPN fanatics would clearly not be worth the bother. Crate loads of fake goods like handbags, perfume, SAKs etc. being imported would be another matter.



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#22 garyc

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Posted 25 January 2018 - 13:56

Martin (twdpens) is correct about the legalities.

I would only like to add that whether the intellectual property is expired or not, China has a reputation of being nearly impossible to enforce such rights.

 

This is an interesting article on the subject of enforcing IP rights in China: https://www.chinabus...ights-in-china/

 

... and this is an interesting statistic:

"Almost 80% more patent litigation cases are filed in China than in the United States. "

 

https://www.lexology...40-236298bb3154


Edited by garyc, 25 January 2018 - 14:15.


#23 Bluey

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Posted 25 January 2018 - 14:23

This is an interesting article on the subject of enforcing IP rights in China: https://www.chinabus...ights-in-china/

 

... and this is an interesting statistic:

"Almost 80% more patent litigation cases are filed in China than in the United States. "

 

https://www.lexology...40-236298bb3154

That article was dated way back in 2012, more than 5 years ago. A lot has changed in China in that time. In fact lots of things have changed in China in the last 5 or so years with respect to law and tech as it is now a rapidly developing country.


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#24 garyc

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Posted 25 January 2018 - 15:13

That article was dated way back in 2012, more than 5 years ago. A lot has changed in China in that time. In fact lots of things have changed in China in the last 5 or so years with respect to law and tech as it is now a rapidly developing country.

Indeed, no doubt there is a change in mindset happening, not least because it will soon be evident that the shoe is on the other foot regarding respect for IP. Speaking of which, https://www.theguard...rk-case-qiaodan

 

... and some more up to date info: http://ipkitten.blog...-report-on.html


Edited by garyc, 25 January 2018 - 15:30.


#25 Bluey

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Posted 25 January 2018 - 16:22

Yes, the Chinese gov have really started cracking down on IP/Trademark infringement in the last few years.

There is a burgeoning middle class there that are demanding better, and the government know that..


Edited by Bluey, 25 January 2018 - 16:22.

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#26 antoniosz

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Posted 26 January 2018 - 13:32

A lot of useful information and I thank you all very much for your contributions. I have taken an interest on this topic both in terms of historical perspective as well as technical (I followed in detail and have documented the case of Parker Sonnet clones since the early 2000). I have been fascinated with the Italian copies of the Parker Vacs as well as the infamous Misterlook and the Esterbrook clones. So what i hear you say is that prosecution across borders is hard. Prosecution in general is expensive and it is a business decision that needs to be made whether it is worth the time and the resources.

My observations with the Sonnet clones are that there was a initial period of time that the quality of the clones was really bad. Perhaps at this stage there is no marker loss at all for Parker, maybe there was even an indirect advertisement - the idea is that they copy something that is desirable. Over the years the quality improved and the Sonnets clones became "usable". At that time we saw the Chinese manufacturers starting to put their name instead of Parker's on their product, while keeping the external form identical. Then they started adjusting the section (adding Chinese style hooded sections/nibs or non-removable nib units). The deviation in colors and shapes started some time ago. It would be interesting to know when and why they decided to do this.

Now the Chinese manufactures feel confident enough to bee adventurous and play with filling systems etc. The price range is still low enough for enthusiasts to ignore them. My sense is that the moral issue is there only for the few judging from the apparent popularity of the clones. So maybe it is already too late for prosecuting, since the copying is less blatant, maybe there was never a business case justified to pursue, maybe only broader cases make sense such as that include multiple products against origination countries and are more negotiation tools than direct litigation.

There are four points that are worth considering. 1) the role of eBay as facilitator, and its responsibility, 2) the evolution of prices of these pens 3) the practice of the Chinese government to dramatically subsidize of the postage cost, and 4) for historical reasons what was the role of outsourcing if any in transferring the knowhiw to the would be counterfitters ... So keep talking and thank you!

Edited by antoniosz, 26 January 2018 - 13:51.


#27 dcwaites

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Posted 26 January 2018 - 23:25

A lot of useful information and I thank you all very much for your contributions. I have taken an interest on this topic both in terms of historical perspective as well as technical (I followed in detail and have documented the case of Parker Sonnet clones since the early 2000). I have been fascinated with the Italian copies of the Parker Vacs as well as the infamous Misterlook and the Esterbrook clones. So what i hear you say is that prosecution across borders is hard. Prosecution in general is expensive and it is a business decision that needs to be made whether it is worth the time and the resources.

...

...

...

 

Yes, prosecution across borders is, and should be, hard. Laws made in the US apply in the US. Laws made in the UK apply in the UK. Laws made in Australia apply in Australia. Laws made in China apply in China. Imagine the kerfuffle if China had tried to enforce the One Child Policy in other countries.

 

And Intellectual Property Law is especially difficult, with Patents, Trade Marks, Registered Designs and the like, all with different policies in each country and across the world.

The various international trade agreements address these to some degree.

 

However, when people who are not IP lawyers try to impose Patent Law against expired Design Protections in a foreign country, it is inappropriate and tiring.

 

Maybe it's about time the Moderators added this topic to the banned list. It's been done to death too many times.


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#28 antoniosz

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Posted 27 January 2018 - 00:47

"However, when people who are not IP lawyers try to impose Patent Law against expired Design Protections in a foreign country, it is inappropriate and tiring."
?????

#29 Bobje

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Posted 27 January 2018 - 04:33

Our Kiwi friend is right. It’s time to declare victory in this glorious discussion. Let’s move on to another fascinating topic.

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#30 richardandtracy

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Posted 27 January 2018 - 08:36

Bob,
Just one thing, Oz & NZ are different places. Just as the US & Canada are.
Richard.





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