～Complaint office of the Canton Fair does not accept the complaint filed by the same opposing party against the same opposed party over the identical IPR infringement～

China Import and Export Fair (hereunder refers to Canton Fair) is held in the Spring and Autumn Sessions each year since the Spring of 1957 in Guangzhou International Conference Exhibition Centre (Pazhou Exhibition), China. The Fair is renowned as ‘the first exhibition’ in China, which has the largest assortment of products, the largest attendance, and the largest number of deals made.

Canton Fair provides a tremendous trade platform for the suppliers and buyers, which promotes communication and business between the enterprises at home and abroad. But some businesses seize the opportunity to display products infringing upon the IPR holders. In order to raid over the infringing targets, Canton Fair promulgated a regulation on IPR Infringement Complaints and How to Cope with the Complaints (hereunder referred to ‘the regulation’) to safeguard the legitimate rights and interests of the IP right holder. Based upon Article 10 (updated on April 14, 2010) of the regulation and our practical experiences, we made some analysis for the reference of the IP right holders.

1. Content of Article 10 of the regulation (hereunder refers to ‘the provision’)
http://www.cantonfair.org.cn/cn/service/IPP/detail.aspx?oid=11062
Article 10 Where the infringer was clamped down in the last session is found guilty in the new session, if the opposing party presents legal documents imposed on the infringer, complaint office of the Fair shall accept the new complaint. Otherwise, the office could refuse to accept the case. Normally, the office does not accept the complaint filed by the same opposing party against the same opposed party over the identical IPR infringement.
IP rights stipulated in Article 23 of the regulation refer to
1. Copyright and the related rights;
2. Trademark right；
3. Patent right.
The provision comes into being after numerous revision and finalization. In contrast, the pre-revised provision only requires out-of-the-fair legal documents in terms of repeated complaint in patent and copyright cases. According to staff from the complaint office at the fair, it is a complicated, difficult and time-consuming work to recognize patent or copyright infringement, in addition, each phase lasts only 5 days. Therefore, when it comes to a repeated infringer, in order to shorten case dealing time, the opposing party needs to present the legal documents obtained against the infringer in the preceding session.

Pre-revised provision as follows:

Article 11 To file the complaint, the opposing party shall initiatively present qualified materials to the staff of the complaint office. As for those repeated infringers of patent or copyright torts, the opposing party needs to present the legal documents against the infringement obtained in the last session. Otherwise, the office would not take the complaint. The complaint office does not accept the complaint filed by the same opposing party against the same opposed party over the identical IPR infringement.
http://www.gd.xinhuanet.com/newscenter/ztbd/2007-10/12/content_11385668.htm
In the following revision, ‘patent or copyright torts’ is extended to ‘IPR infringement’, which means patent, copyright or trademark infringement. However, the staff of the complaint office does not give reasonable explanations why they refuse to accept the complaint filed against the same opposed party by the same opposing party over trademark infringement.

2. Attitude of the complaint station on the duplicate complaints
Through the frequent communication with the officers in the Canton Fair complaint stations, we have gotten to know that the responsible leaders of the Canton Fair have different opinions with the officers in the regulation hereby mentioned. As the officers thought, even if the complainant cannot present any legal docs that they obtain legally after the previous fair, the complaint station should still accept their complaint once the trademark infringement is confirmed by the station. However, the responsible leaders of the Canton Fair insist that this should not be accepted within the exhibit mall. The Measure finally stands by the opinion of the Canton Fair.

3. Execution of the regulation by the complaint station
The regulation was put into force on April 14, 2010. So far, we have many similar cases at the Canton fair, for most of which we cannot provide any legal docs obtained after the previous Canton fair. However, the cases have all been accepted by the complaint station. Only at the autumn fair this year, we were required to submit the docs for one of the cases.
Therefore, the regulation has not been strictly executed so far. We will continue to pay attention to it whether the circumstance we met in the autumn fair really meant that the regulation would be strictly executed.

4. Suggestions and coping measures for the IPR holders
In practice, in the past the complaint office did not implement the provision very strictly, but it could not be ruled out that the office would carry out by the provision. On the safe side, it is advisable for the IP right holder to engage law-enforcement authority to raid over the target at the fair, meanwhile, IP right holders should pursue the legal documents issued by administrative authorities. Legal documents hereby refers to administrative penalty decision, order of rectification, adjudication on patent infringement, court verdict or the other instruments announced by the related authorities to substantiate the infringement.
If IP right holders fail to follow up post-raid legal documents, bad-faith businessmen at the fair might take advantage of the provision, totally ignore the first-time crackdown and proceed with the infringing activity even more wildly and unscrupulously.
In the end, we will keep watching and actively promote to discuss on the provision modification. Any update, we will share with the IP right holders.

Author: Liu Xiangqian (刘湘前), IPR Protection Dept.,
BOB Intellectual Property Service Ltd
2014-12-28