Part 1. Concept of band names
Part 2. The courts and judges in USA
Part 3. Band Protection in China
1.Birkin, Michael (2007). "Assessing Band Value," in Brand Power.
2.Diller S., Shedroff N., and Rhea D (2006) Making Meaning: How Successful Businesses Deliver Meaningful Customer Experiences. New Riders, Berkeley, CA
3.Gregory, James (2008). Best of Banding.
4.Environmental Protection in China (2009)
5.Klein, Naomi (2009) No logo, Canada: Random House
6.Kotler, Philip and Pfoertsch, Waldemar (2009). Band Management.
7.Miller & Muir (2008). The Business of Bands.
8.Olins, Wally (2007). On Band, London: Thames and Hudson.
9.White Paper: China's Efforts and Achievements in Promoting the Rule of Law (2008)
10.Wernick, Andrew (2008). Promotional Culture: Advertising, Ideology and Symbolic Expression (Theory, Culture & Society S.), London: Sage Publications
In the days when a band names would have to wait until one particular judge had time to hear it, there could be a significant delay between the issue of proceedings and trial. As a result, many (perhaps most) band names were dealt with conclusively at an interlocutory hearing, maybe even ex parte. A plaintiff would be unhappy at the prospect of waiting months for the trial to start and would often want to seek an interlocutory injunction right at the outset to stop the defendant doing whatever wrong he was accused of. An injunction would be granted if the plaintiff had a strong arguable case, if the balance of convenience favoured it (the plaintiff would suffer irreparable harm if the defendant were allowed to continue: the defendant could be compensated if the injunction were wrongly gran
Показать всеted) and if the plaintiff gave a cross-undertaking in damages to guard against that eventuality.
At that early stage in the proceedings, the defendant might be restrained from carrying on the business from which he earned his living, obliging him to find an alternative, clearly non-infringing, source of income. The injunction would remain in place for months, until trial, and the fact that it had been granted indicated that the judge liked the plaintiff's case. That added up to a strong indication that a settlement would be a good idea.
Likewise, a plaintiff denied an interlocutory injunction would receive a loud message discouraging him from further litigation. Band names cases have always been notoriously expensive, and going full steam ahead after an indication had been given that the judge was not convinced about the strength of the case would give the plaintiff pause for thought.
Nowadays, with more judges to hear band names cases, despite there being more and more band names cases to hear (in contrast with other divisions of the High Court since Lord Woolf's civil justice reforms), cases come to trial much more speedily. An application for interim, or urgent, relief may be met by the judge (charged by the same civil justice reforms with being more proactive in the management of his cases) setting the case down for a speedy trial. And in the post-Woolf environment, if the parties get to trial they might find their counsel being summoned to the judge's chambers at an early stage to hear how he expects the case to go and to receive a clear, if not explicit, exhortation to settle.
Part 3. Band Protection in China
As a whole, China, however, for a variety of historical reasons, began work on its band rights protection system at a comparatively late date. After China started reform and opening to the outside world, it accelerated the process of establishing an band rights protection system in order to rapidly develop social productive forces, promote overall social progress, meet the needs of developing a socialist market economy and expedite China's entry into the world economy.
Today, band protection is an issue of universal concern in the international political, economic, scientific, technological and cultural exchanges. International bilateral and multilateral negotiations on this topic, especially the reaching of the Agreement on Trade-related Aspects of Band Rights in the General Agreement on Tariffs and Trade (GATT), have raised worldwide band protection to a new level.
In today's world, great importance is attached to band protection. What is China's specific position regarding this question? What is China's current legislation on band rights and how is it enforced? What measures has China taken to ensure its international commitment to band protection? A brief introduction to these issues will prove useful.
It is the Chinese government's view that the band protection system plays a significant role in promoting progress in science and technology, enriching culture and developing the economy. It functions both as an important institution ensuring the normal running of the socialist market economy and as one of the basic environments and conditions for conducting international exchange and cooperation in science, technology, economy and culture. China considers the protection of band an important part of its policy of reform and opening to the outside world and of the building of its socialist legal system.
The basic framework for China's band rights protection legal system was completed for the most part in the 1980s. In the 1990s, international economic relations and the international economic environment have already undergone great changes.
The Chinese government's sincerity in its efforts to scrupulously abide by international conventions and bilateral agreements regarding the protection of band rights, and its capacity to fully implement its international obligations have been appreciated and supported by world opinion.
Along with its progress in reform and opening up, China has made big strides in band protection. In accordance with its national conditions and current tendencies in international development, China has formulated and finetuned various laws and regulations on band protection, thereby constructing a socialist legal system for band protection with Chinese characteristics. The scope of the band rights protected in China and the degree of protection afforded have gradually conformed with international practices and the high degree of legal protection for band rights has been realized.
China has a complete legal system for the protection of band rights. China's band law stipulates the legal responsibilities to be borne by anyone who violates the law, including civil liability, criminal liability and exposure to administrative sanctions.
China's Patent Law provides that in the case of infringement arising from the exploitation of a patent without authorization of the patentee, the patentee or other affected parties may request the patent administrative authorities to deal with the matter or may directly file suit in a people's court. In investigating and dealing with the matter, the patent administrative authorities are empowered to order the infringer to stop all acts of infringement and compensate for any losses. Whoever counterfeits a patented product or wrongly appropriates a patented technique will be ordered by the patent administrative authorities to cease all acts of counterfeiting, to provide the public with notification of his or her violation, and to pay a fine. In the case of serious violations, the criminal liability of the person directly responsible shall be investigated through application of relevant articles of the Criminal Law, and if found guilty, the person directly responsible shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or a fine.
With the implementation of band laws, band rights are effectively protected in China. These laws are also actively encouraging invention and other forms of creation and fair competition. For instance, the protection of the right to the exclusive use of registered trademarks has resulted in the rapid growth of the number of trademarks registered by Chinese and foreign businessmen in China. By the end of 1993, the number of effective registered trademarks had exceeded 410,000. Of these, 350,000 were domestic, with the remaining 60,000 coming from 67 countries and regions. Companies from the United States, for example, had only 122 trademarks registered in China before 1979; by 1993 that number had soared to 16,221, more than a hundred times the earlier figure. In 1993, there were 170,000 applications for trademark registration annually in China, including more than 130,000 applications for new trademarks registration, among the highest number in the world. In addition, the Patent Law of China has greatly encouraged inventions and other creations in China, and has proved a magnet to patent applications from other countries and regions. On April 1, 1985, the first day the Patent Law came into effect, 3,455 applications for patent rights were submitted. By the end of 1993, the Patent Office of China had handled over 360,000 applications for patent rights. Of those, 27.5 percent were for inventions, 62.8 percent for utility models, and 9.7 percent for exterior designs; domestic applications accounted for 86.4 percent, while 13.6 percent were applications from 70 countries and regions. By the end of 1993, 175,000 patents had been approved, including more than 20,000 invention patents, more than 130,000 utility model patents and over 20,000 exterior design patents.
China has formulated comprehensive band rights laws and regulations. Today, it is earnest and fair in executing these laws, and much has been accomplished in this regard.
These great achievements in the execution of the band rights protection laws and regulations are above all the product of comprehensive judicature and administration provided for in these same laws and regulations.
1. China's judicial institutions for band protection.
In China, any citizen, legal person or organization entitled to band rights whose rights and interests have been infringed may bring a lawsuit to the people's court in accordance with the law and receive practical and effective judicial protection.
The people's courts exercise judicial power independently according to law, are subordinate only to the law itself, and are not subject to interference by any administrative organ, public organization or individual.
Earnest execution of the law is the core of the administration of justice. The judicial activities of a people's court are carried out on the basis of facts, and with the law providing the criterion. Cases are tried strictly in accordance with substantive and procedural laws. Cases are heard in an open court, and a collegial system, a challenge system, a system whereby the court of second instance is the court of last instance, and a trial supervision system are practised. Judicial work, in accordance with the law, is also subject to supervision by people's congresses and people's procuratorates at all levels and by the masses, so as to ensure openness, impartiality, and seriousness.
The establishment and fortification of the judicial organs for trying band rights cases and the optimization of the judicial system are important guarantees for the people's courts correctly to handle such cases and conscientiously to protect band rights according to law.
With the implementation of China's law on band protection and the increasing improvement of the judiciary's protective power, people's courts at various levels in China have accepted and decided a large number of civil disputes concerning band rights. A total of 3,505 cases concerning band rights disputes were accepted and handled by people's courts throughout the country from 2006 to the end of 2008, 1,168 of which concerned copyrights, 1,783 patents, and 554 trademark rights. The people's courts in accordance with the law defend the legitimate rights and interests of the foreign and domestic band rights holders through trying cases concerning band rights disputes. For example, the inventor of a new "technique for sinking piling using drill holes," brought a suit against the Beijing Subway Foundation Engineering Company to determine ownership of the patent on the invention. After trying the case, the Beijing Higher People's Court held that this invention was not a service invention as described by the Patent Law, so the patent right belonged to the inventor and not to his employer. In another example, Hong Kong's Sendon International Co., Ltd. brought suit against Shenzhen's Huada Electronics Co., Ltd. for trademark infringement. After hearing the case, the Shenzhen Intermediate People's Court ruled that the trademark "SENDON" was registered in China mainland by the plaintiff and should be protected by law. The defendant's use of the trademark "SENDON" on the same commodity sold by the plaintiff under that name constituted infringement on the rights to exclusive use of a registered trademark. The court decided that the defendant should pay the plaintiff 468,314.4 yuan in compensation.
Band rights are important civil rights. In civil infringement cases, the people's court is empowered to order the infringer to bear civil responsibility for the cessation of the infringement, for the elimination of any negative effects caused by his actions, for offering apologies, and for compensation for any losses in accordance with the law. Furthermore, it is empowered to confiscate the infringer's illegal gains and/ or adjudge the infringer to criminal detention or a fine. Скрыть
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