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Trademarks and the Beijing Olympics: Gold Medal Challenges

Authors:
  • University of Illinois at Chicago School of Law

Abstract

There is no question that the Summer Olympics in Beijing pose a tremendous marketing opportunity. They also pose a great opportunity for the development of effective techniques for enforcing intellectual property rights. China has already enacted special regulations governing the protection of Olympic symbols and has established special regulations governing the enforcement of those regulations. Yet many of the cultural and political issues that impact China’s enforcement activities in other arenas (including counterfeiting and piracy of IP protected goods and services) remain problematic. Furthermore, while the Olympic symbols may be the subject of heightened protection, cultural perceptions of the differences between commercial marks and Olympic symbols may make any appreciable “improvement” in IPR protection evanescent. The opportunity, however, for increased dialogue and training should not be lost. In the glow of gold medal competitions, IP owners who follow a rational approach may well find that the benefits of their efforts last long after the closing ceremonies in Beijing.
Electronic copy available at: http://ssrn.com/abstract=2223158
THE JOHN MARSHALL
REVIEW OF INTELLECTUAL PROPERTY LAW
TRADEMARKS AND THE BEIJING OLYMPICS: GOLD MEDAL CHALLENGES
DORIS ESTELLE LONG
ABSTRACT
There is no question that the Summer Olympics in Beijing pose a tremendous marketing
opportunity. They also pose a great opportunity for the development of effective
techniques for enforcing intellectual property rights. China has already enacted special
regulations governing the protection of Olympic symbols and has established special
regulations governing the enforcement of those regulations. Yet many of the cultural and
political issues that impact China’s enforcement activities in other arenas (including
counterfeiting and piracy of IP protected goods and services) remain problematic.
Furthermore, while the Olympic symbols may be the subject of heightened protection,
cultural perceptions of the differences between commercial marks and Olympic symbols
may make any appreciable “improvement” in IPR protection evanescent. The
opportunity, however, for increased dialogue and training should not be lost. In the glow
of gold medal competitions, IP owners who follow a rational approach may well find that
the benefits of their efforts last long after the closing ceremonies in Beijing.
Copyright © 2008 The John Marshall Law School
Cite as
Doris Estelle Long,
Trademarks and the Beijing Olympics:
Gold Medal Challenges
,
7 J. MARSHALL REV. INTELL. PROP. L. 433
(2008).
Electronic copy available at: http://ssrn.com/abstract=2223158
433
TRADEMARKS AND THE BEIJING OLYMPICS: GOLD MEDAL CHALLENGES
DORIS ESTELLE LONG*
INTRODUCTION
In 2001, when Beijing was announced as the host city for the 2008 Summer
Olympics,1 China joined a special club of countries who have faced the challenge and
opportunity of hosting an Olympic event.2 There is no question that the face of China
has already been changed. Physical changes are apparent in the construction of new
infrastructures mandated by the Olympics, including new stadiums, housing
facilities and transportation improvements.3 In addition, new goods are already
flooding the market in China, including reproductions of the new Olympic symbols
for the Beijing Olympics4 on a diverse array of goods.5 Even more critical, at least for
* Professor of Law and Chair, Intellectual Property, Information Technology and Privacy
Group, The John Marshall Law School (Chicago). I would like to thank the participants of the of the
Conference on The Changing Role of Intellectual Property in Asia: Moving Beyond “Producers” and
“Consumers,” at the University of Illinois at Champagne-Urbana; of the Temple Law Review
Symposium Law Without Borders: Current Legal Challenges Around the Globe; of the Thomas M.
Cooley ILS Symposium on China and its Effect on the Global Economy; of the New York City Bar
International Law Weekend: Toward a New Vision of International Law, and of the Distinguished
Professor Speaker Series at The John Marshall Law School (Chicago) whose comments helped shape
this Article. I would also like to thank Konstantino Muhtaris and Jennifer Maxwell for their
research assistance. This Article is dedicated to my students at Jiao Tung University, who first
began with me the dialogue that continues to inform my thoughts about China and the role of
intellectual property protection in its development. As always, any errors belong solely to me.
** Available at www.jmripl.com.
1 Official Website of the Olympic Movement, http://www.olympic.org/uk/index_uk.asp (follow
the “Beijing 2008” hyperlink) (last visited Apr. 18, 2007). Beijing was selected as the Host City for
the 2008 Summer Olympics at the 112th Session of the International Olympic Committee (“IOC”)
in Moscow on July 13, 2001.
Id.
See generally
INTERNATIONAL OLYMPIC COMMITTEE, MANUAL FOR
CANDIDATE CITIES FOR THE GAMES OF THE XXIX OLYMPIAD 2008,
available at
http://multimedia.olympic.org/pdf/en_report_296.pdf [hereinafter MANUAL] (setting forth the
International Olympic Committee’s submission requirements for cities seeking to host the Olympic
Games).
2 Official Website of the Olympic Movement, Past Olympic Games Since 1896,
http://www.olympic.org/uk/games/index_uk.asp (listing all nations and cities that have previously
hosted the Olympic games).
3
See
Yu Yilei,
Olympic Preparations Praised
, CHINA DAILY, Aug. 10, 2002,
available at
2002
WLNR 7525117 (noting that “Beijing is launching a multi-billion-dollar program to build 16 new
stadiums and gymnasiums for Olympic competitors, add 500 kilomet[er]s to its expressways and 41
kilomet[er]s to the existing 54-kilomet[er]s subway line;
see also
Ju Chuanjiang,
Olympics to
Trigger Great Changes
, CHINA DAILY, Mar. 10, 2007,
available at
2007 WLNR 4513493 (noting that
“construction of transportation, environmental and tourism facilities will be strengthened, in order
to create an excellent environment for the upcoming event”).
4
See
The Official Website of the Beijing 2008 Olympic Games, Official Mascots of the Beijing
2008 Olympic Games, http://en.beijing2008.cn/spirit/beijing2008/graphic/n214068254.shtml (last
visited Apr. 18, 2007) [hereinafter Official Mascots]. These symbols include not only the traditional
interlocking five circle design, but also five special Chinese mascot designs that have been created
specifically for the Beijing Olympics.
Id.
The mascots are called “Fuwa” and are designed to express
the playful qualities of five little children who form an intimate circle of friends.
Id.
While one
[7:433 2008] The John Marshall Review of Intellectual Property Law 434
purposes of this Article is the change that is already occurring in Chinese law
governing the protection of these Olympic symbols, both in fact and in law.6
I. THE BEIJING OLYMPICS: OPPORTUNITY OR INSURMOUNTABLE
ENFORCEMENT CHALLENGE?
There is no question that holding the Olympics in Beijing poses a tremendous
marketing opportunity. With the influx of foreign travelers, new Olympics-related
products and long term potentially heightened demand for unique Chinese
traditional goods, the Olympics provides a rare injection of economic activity tied to a
single “mega” sporting event.7 It may also provide a great opportunity for the
development of effective techniques for enforcing intellectual property rights in
Fuwa (Huanhuan) represents the Olympic torch, the other Fuwa embody the natural characteristics
of four of China’s most popular animals: the fish, the panda, the Tibetan antelope, and the swallow.
Id.
5
See
Li Jing,
More Firms to Make, Sell Licensed Products
, CHINA DAILY, Aug. 25, 2006,
available at
2006 WLNR 14773330. By 2008, it is estimated that six to seven-thousand different
types of licensed products bearing the Olympic Games logo will be showcased at more than ten-
thousand stores nationwide.
Id.
The types of licensed products include items such as badges, toys,
garments, decorations, handicrafts, household supplies, and stationery.
Id.
See also Official On-Line
Beijing Olympics Store,
available at
https://www.bj2008eshop.com
6
See, e.g.,
Liu Li,
Committee Pledges Effort to Protect Beijing Olympic Logo
, CHINA DAILY,
Aug. 14, 2003,
available at
2003 WLNR 9226983 The Beijing Organizing Committee for the Games
of the XXIX Olympiad pledged to work harder alongside the relevant authorities to protect the
intellectual property rights of the 2008 Olympic Games logo.
Id.
As evidence of the heightened
effort to provide IP protection, authorities cited the confiscation of unauthorized Olympic goods and
the levying of stiff fines on parties selling unauthorized Olympic goods.
Id.
See also notes 16 - 76
infra
and accompanying text for additional changes in Chinese law and enforcement activities to
meet its obligations.
7
See
PRICEWATERHOUSE COOPERS, BUSINESS AND ECONOMIC BENEFITS OF THE SYDNEY 2000
GAMES—A COLLATION OF EVIDENCE 3 [hereinafter ECONOMIC BENEFITS] (2002),
available at
http://www.gamesinfo.com.au/pi/ARPICOE.html. While it is always difficult to determine precisely
the economic benefit of a single “mega” sporting event, this report estimates that the economic
benefit to Sydney and its environs following the 2000 Olympics was $3 billion U.S. dollars in
“business outcomes.”
Id.
This $3 billion dollar estimate included $600 million in “new business
investment,” $288 million in “new business under the Australian Technology Showcase,” and almost
$2 billion in “post-Games infrastructure and service contracts.”
Id.
In addition, as a result of the
Olympics, over $500 million was “secured in contracts, sales and new investment by businesses”
located in the region.
Id.
These figures do not include the various costs incurred in connection with
hosting an Olympic event, including costs for creating the necessary infrastructure, including in
recent years heightened security measures;
see also
2008 Beijing Olympiad: Profit or Loss?
, CHINA
TODAY, Nov. 5, 2004,
available at
http://www.chinatoday.com.cn/English/e2004/e200411/p1002.htm
(listing the profits made by host countries for the Summer Olympics since 1984); Jeffrey G. Owen,
Estimating the Cost and Benefit of Hosting Olympic Games: What Can Beijing Expect from Its 2008
Games?
, 3 INDUS. GEOGRAPHER 1 (2005), http://igeographer.lib.indstate.edu/owen.pdf (estimating
the potential impact of the Olympic Games on host countries);
cf. Germany Hopes World Cup Will
Boost Economy
, MSNBC, Apr. 14, 2006, http://www.msnbc.msn.com/id/12303396/. Similar economic
benefits accrue from other mega sporting events such as the World Cup.
Id.
For instance, South
Korea estimated that hosting the 2002 World Cup brought the nation $4.1 billion in direct economic
benefits.
Id. But cf.
id.
(stating that the public sector spent over $1.9 billion on Games related
infrastructure and the private sector spent another $1.1 billion on Games related venues, but no
information is provided as the costs of security measures).
[7:433 2008] Trademarks and the Beijing Olympics
435
China, but only if the nature of the opportunity is understood and if this limited-in-
time opportunity is not squandered.
The difficulty of protecting intellectual property in China has been a constant
irritant in U.S.-China relations since before China became a member of the WTO in
2001.8 Even at the time that this Article goes to press, there are currently several
WTO complaints filed by the United States against China with a primary focus on
alleged failures to provide enforcement of protections required under the Agreement
on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”).9 Thus, in
8
See
WTO Member Information, China and the WTO, http://www.wto.org/english/
thewto_e/countries_e/china_e.htm (last visited Apr. 18, 2008). As a member of the WTO, China is
bound by the obligations of the diverse WTO Agreements, particularly the Agreement on Trade
Related Aspects of Intellectual Property Rights.
See
Agreement on Trade-Related Aspects of
Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade
Organization, Annex 1C, Legal Instruments—Results of the Uruguay Round, 1869 U.N.T.S. 299, 33
I.L.M. 1197 [hereinafter TRIPS Agreement]; World Trade Organization,
Protocol on the Accession
of the People’s Republic of China
, WT/L/432 (Nov. 23, 2001),
available at
http://docsonline.wto.org/
imrd/directdoc.asp?DDFDocuments/t/WT/L/432.doc (detailing the obligations China must fulfill in
order to join the WTO). A complete examination of what I refer to as the “intellectual property
dance” between the United States and China is beyond the scope of this Article. However, briefly,
the twenty year period leading up to China’s accession to the WTO is marked by a series of trade
disputes, followed by agreements including heightened protection by China of intellectual property
rights, followed by subsequent trade disputes.
See
Ping Wang, Kristie Thomas & Fanshu Yang,
Recent WTO Disputes Involving the Protection and Enforcement of Intellectual Property Rights in
China: Legal and Political Analysis
4
(China Policy Institute, University of Nottingham, Briefing
Series No. 24, Aug. 2007),
available at
http://www.nottingham.ac.uk/shared/shared_cpi/documents/
policy_papers/Briefing_24_China_intellectual_property_rights.pdf (providing a brief history of
United States and China trade relations);
see also
Li Zhongzhou, Commentary,
China Must Be
Ready to Play the WTO Game
, CHINA DAILY, Apr. 18, 2007,
available at
http://www.chinadaily.com.cn/opinion/2007-04/18/content_853060.htm (noting that the U.S. Trade
Representative has filed two IP cases against China in the WTO, in spite of China’s heightened IP
right protection);
see generally
ANDREW C. MERTHA, THE POLITICS OF PIRACY: INTELLECTUAL
PROPERTY IN CONTEMPORARY CHINA (Cornell Univ. Press 2005) (imparting a number of intriguing
insights into the diverse array of bilateral negotiations between China and the United States since
the 1980’s); CHARAN DEVEREAUX ET AL., CASE STUDIES IN U.S. TRADE NEGOTIATION, VOL. 1:
MAKING THE RULES (Institute for International Economics 2006) (discussing IP enforcement and
other issues regarding China’s accession to the WTO); KA ZENG, TRADE THREATS, TRADE WARS:
BARGAINING, RETALIATION, AND AMERICAN COERCIVE DIPLOMACY (Univ. of Mich. Press 2004)
(discussing the trade disputes between China and the US).
See generally
SUSAN K. SELL, PRIVATE
POWER, PUBLIC LAW: THE GLOBALIZATION OF INTELLECTUAL PROPERTY RIGHTS (Cambridge Univ.
Press 2003) (discussing the coercive nature of IP rights protection under TRIPS); MICHAEL P. RYAN,
KNOWLEDGE DIPLOMACY: GLOBAL COMPETITION AND THE POLITICS OF INTELLECTUAL PROPERTY
(The Brookings Inst. Press 1998) (discussing the impact of bargain linkage diplomacy under TRIPS).
The protection standards set down in TRIPS will most assuredly continue to play an important role
in this “intellectual property dance” between signatory nations, such as the United States and
China, even as the “dance” itself moves more clearly into bilateral and regional fora.
See
“Democratizing” Globalization: Practicing the Policies of Cultural Inclusion
, 10 CARDOZO J. OF INTL
& COMP. L 217 (2002) (discussing the emerging trend of regionalization in IPR harmonization).
9
See, e.g.,
Request for Consultation by the United States
, China—Measures Effecting the
Protection and Enforcement of Intellectual Property Rights
, WT/DS362/1 (Apr. 16, 2007),
available
at
http://www.worldtradelaw.net/cr/ds362-1(cr).pdf [hereinafter
China Protection and Enforcement
]
(concerning thresholds under Chinese law for criminal procedures and penalties); Request for
Consultation by the United States,
China—Measures Affecting Trading Rights and Distribution
Services for Certain Publications and Audio-Visual Entertainment Products
, WT/DS363/1 (Apr. 16,
2007),
available at
http://www.worldtradelaw.net/cr/ds363-1(cr).pdf [hereinafter
Trading and
[7:433 2008] The John Marshall Review of Intellectual Property Law 436
determining what impact, if any, the Olympics might have on China and intellectual
property protection, we need to focus on what I refer to as “The Gold Medal
Challenges.” Simply put, to what extent are the Olympics a Great Marketing and
Law Development Opportunity or are they just Another Counterfeiting Quagmire? If
the Olympics actually do provide an opportunity for developing stronger enforcement
laws, techniques and models, how can this opportunity be turned into Olympic Gold?
What are the stumbling blocks to achieving such Gold? And, perhaps, most
significantly of all, can these stumbling blocks actually be reduced in a significant
fashion to allow China to continue its movement into the international intellectual
property protection community with greater assurance.
As part of the candidature process to host an Olympic Games, the International
Olympics Committee (“IOC”) requires that organizing committees secure various
guarantees regarding the conduct of the Olympics in the host country, including a
declaration by the government of your country stipulating that all the necessary legal
measures will be taken to facilitate the protection of Olympic marks.”10 This
obligation is further enforced by the Host Country Agreement signed by the IOC and
the Organizing Committee directly upon the announcement of the successful
candidature of the city in question.11 Such a declaration was contained in the
candidature file of the Beijing Organizing Committee for the Games of the XXIX
Olympiad (“BOCOG”)12 and in the Host Agreement signed in connection with the
Beijing Summer Olympics to be held in 2008.13
By November 2001, the Beijing Municipality enacted Provisions for the
Protection of Olympic Intellectual Property (“Beijing Declaration”) effective
November 1, 2001, which provided for protection for a broadly defined category of
covered Olympic Intellectual Property.14 Article 2 of the Beijing Declaration defined
the covered intellectual property as including “any trademarks, special symbols,
Distribution
] (regarding market access for certain copyrighted goods).
10
See
MANUAL,
supra
note 1, at 31.
11
See id.
at 2; BEIJING ORGANIZING COMM. FOR THE GAMES OF THE XXIX OLYMPIAD, BEIJING
CANDIDATURE FILE 39 (2000),
available at
http://en.beijing2008.cn/65/68/column211716865.shtml
(follow “Theme 2 Legal Aspects” hyperlink) [hereinafter CANDIDATURE FILE];
see also
Human Rights
in China,
Winning Press Freedom Conference, Beijing’s Legal Obligations as Olympics Host: A
Human Rights in China Briefing Paper
(2008),
available at
http://www.beijing2008conference.com/
articles.php?id=38 [hereinafter Beijing Conference] (stating that the legal, commercial, and financial
rights and obligations of the IOC and Beijing are set forth in the Host City Contract, which is still
not publicly available).
12
See
CANDIDATURE FILE,
supra
note 11, at 39 (stating that immediately upon being elected to
Host City for 2008 Olympic Games, BOBICO and the Chinese Olympic Committee will sign the Host
City Contract). The official title of the Beijing Bid Organization was the Beijing 2008 Olympic
Games Bid Committee (“BOBICO”). This group was later re-instituted as the Beijing Organizing
Committee for the Olympic Games (“BOCOG”) upon the acceptance of the bid to host the 2008
Summer Olympics in Beijing. For the sake of convenience, I will use the term “BOCOG” to refer to
the actions of both Committees since they fill largely the same function and are composed of many of
the same officials.
13
Id.
at 39, 41 (stating that the “Chinese government will take all necessary legal measures to
strengthen protection of the Olympic marks).
14
See
Regulations of Beijing Municipality for the Protection of Olympic Intellectual Property
(promulgated by the Beijing Mun. Gov’t, Oct. 11, 2001, effective Nov. 1, 2001) art. 1,
available at
http://www.beijing12312.com/newsshow.asp?id=A200712191653506083091 [hereinafter Beijing
Declaration].
[7:433 2008] Trademarks and the Beijing Olympics
437
patents, works and other creations related to the Olympics as stipulated in the
Olympic Charter and any agreements concluded by the Beijing Municipal People’s
Government and the Chinese Olympic Committee (“COC”) with the International
Olympic Committee (“IOC”).”15 Article 3 further defined the “trademarks, special
symbols, patents, works and other creations related to the Olympics mentioned in
these Provisions” as referring to the following:
1. the Olympic symbol (five Olympic Rings), Flag, Anthem, Motto as well as
the terms or designs containing the words OLYMPIC, OLYMPICS,
OLYMPIAD, OLYMPIC GAMES, or any type of combination thereof;
2. the emblem and title of the COC;
3. the logos, mascots, names, symbols (including Beijing 2008), anthem and
slogans developed by the Beijing 2008 Olympic Games Bid Committee and
the BOCOG or others entrusted by them for their use during the period
when Beijing bid for or host the Games of the XXIX Olympiad; and
4. other Olympic intellectual property rights objects related to the
Olympics.16
This broad definition for covered intellectual property includes an equally
expansive definition of prohibited unauthorized uses, including:
1. using the same or similar trademarks, special symbols, patents, works
and other creations without authorization in production, business
operations, advertising, propaganda, performance and other activities;
2. forging or making without authorization representations of the same or
similar trademarks or special symbols, or selling representations of the
same or similar trademarks or special symbols that are forged or made
without authorization;
3. using the same or similar trademarks, special symbols, patents, works
and other creations in a disguised form;
4. using the same or similar trademarks, special symbols, patents, works
and other creations without authorization in registration of enterprises,
social organizations, institutions, private non-profit-making work units, and
in the names of websites, domains, toponymy, buildings, structures, places,
etc.;
5. assisting in acts of infringement by providing convenient conditions such
as venues, storage, transportation, mail service or concealment; or
15
Id.
art. 2.
16
Id.
art. 3.
[7:433 2008] The John Marshall Review of Intellectual Property Law 438
6. other infringements in violation of relevant laws and regulations of the
State.17
The Beijing Declaration authorized municipal intellectual property, cultural,
and enforcement offices, including the Beijing Administration for Industry and
Commerce (“BAIC”), to enforce its provisions18 and cited the “principles of
safeguarding the dignity of the Olympic Games” as the basis for protection.19
The Chinese Government also moved quickly to provide special legal protection
for the intellectual property associated with the Olympic Games. In 2002, it enacted
special regulations for the protection of the Olympic symbols (“Symbol
Regulations”).20 While these Symbol Regulations have many provisions similar to
those contained in the Beijing Declaration, they are not identical.21 In fact, it
appears that the Regulations were based primarily upon then existing trademark
law in China, which it largely mirrors.22 Similar to the Beijing Declaration, the
17
Id.
art. 8.
18
Id.
art. 10. In keeping with the traditional “two paths” of enforcement, the Beijing
Declaration provides that intellectual property owners also have the right to choose to file a lawsuit
with the civil courts in lieu of pursuing administrative relief.
Id.
art. 15. It should be noted, that
unlike the United States, Chinese IP administrative tribunals generally have enforcement powers,
including the ability to investigate claims, secure evidence, seize infringing goods and adjudicate
liability.
See generally
PETER GANEA & THOMAS PATTLOCH, INTELLECTUAL PROPERTY LAW IN
CHINA 289–341 (Kluwer Law Int’l 2005). These tribunals include: State Administration for Industry
and Commerce (“SAIC”) which has primary administrative jurisdiction for trademark enforcement
matters; National Copyright Administration (“NCAC”) which has primary administrative
jurisdiction for copyright enforcement matters; and, State Intellectual Property Office (“SIPO”)
which has primary administrative jurisdiction for patent enforcement matters. These
administrative bodies also have the power to issue injunctive relief (usually in the form of a cease
and desist order) and to impose fines.
Id.
They do not, however, have the ability to secure
compensation for the intellectual property owner. Such relief is generally available, if at all,
through civil litigation.
Id.
This is an extremely telescoped explanation of Chinese enforcement
modalities. The reality is far more complex, with numerous overlapping jurisdictions between the
agencies listed above and several other agencies, including for example the Technical Supervisory
Bureau.
Id.
(discussing the aforementioned issues).
19
See
Beijing Declaration,
supra
note 14, art. 5 (stating in full, “[t]he protection of Olympic
intellectual property rights shall comply with
the principles of safeguarding the dignity of the
Olympic Games
, prohibiting any infringement of proprietary rights, as well as protecting and using
such rights according to law”) (emphasis added).
20 Regulations on the Protection of Olympic Symbols, (promulgated by Decree No. 345 of the
State Council of the People’s Republic of China, Feb. 4, 2002, effective Apr. 1, 2002), art. 1,
available
at
http://www.china.org.cn/english/China/208301.htm) [hereinafter Symbol Regulations]. These
Symbol Regulations and the Beijing Declaration are not the only special laws and regulations
enacted in China in connection with protection of the Olympic Symbols. China also enacted a
special registration processes to assure protection of the Olympic Symbols
.
See
Kenny Wong
,
Hong
Kong: China’s Pledge to Protect Olympic IP Rights
, HONG KONG LAW., Oct. 2002, at 45–49,
available
at
http://www.hk-lawyer.com/2002-10/Oct02-ip.htm (noting China’s implementation of Measures for
the Recordal and Administration of Olympic Insignia, and briefly detailing their effects).
21
See
Yu Yilei,
Olympic Slogans Get New IPR Protection
, CHINA DAILY, Mar. 8, 2002,
available at
2002 WLNR 7383805 (stating that the regulations, which come into effect on April 1,
2002, encompass a wider definition of Olympic slogans).
See also
discussion note 25
infra
.
22 The precise relationship between the Beijing Declaration and the Symbol Regulations with
Chinese Trademark Law is, like much of Chinese intellectual property law, both complex and
evolving. For example, the simple issue of the types of relief available in cases of trademark
infringement demonstrates a dynamic relationship between the three. Under existing Trademark
[7:433 2008] Trademarks and the Beijing Olympics
439
Symbol Regulations define the “Olympic symbols” to be protected in broad terms.
Under the Symbol Regulations, protected Olympic Symbols are defined as:
(1) The Five Olympic Rings of the International Olympic Committee Flag,
Motto, Emblem, and Anthem of the Olympic Games;
(2) The special terms of OLYMPIC, OLYMPIAD, OLYMPIC GAMES and
their abbreviations;
Law in existence at the time of China’s successful bid to host the Olympics, remedies for
infringement of a registered trademark were limited to administrative actions, except for the right
to appeal such actions to the courts. Trademark Law of 1982, as amended in 1993, art 39 (“Where
any party has committed any of such acts to infringe the exclusive right to use a registered
trademark as provided for in Article 38 of this Law, the infringed may request the administrative
authority for industry and commerce at or above the county level for actions.”),
available at
http://www.lehmanlaw.com/resource-centre/laws-and-regulations/intellectual-property/trademark-
law-of-the-peoples-republic-of-china-1993.html [hereinafter Trademark Law 1993]. The 1994
Trademark Regulations similarly reflected an administrative bias in trademark enforcement,
providing that “where the exclusive right to use a registered trademark has been infringed, any
person may lodge a complaint with or report the case of infringement to the administrative
authority for industry and commerce at or above the county level of the infringer's location or of the
place where the infringing act was done. The infringer may otherwise institute legal proceedings
directly with the people's court.” Implementing Regulations for the Trademark Law of the Peoples
Republic of China—1993,
available at
http://www.lehmanlaw.com/resource-centre/laws-and-
regulations/intellectual-property/implementing-regulations-for-the-trademark-law-of-the-peoples-
republic-of-china-1993.html. In October 2001, after the successful Olympic candidature, Chinese
Trademark Law was amended to include both administrative and court remedies for infringement,
however, mediation was required prior to such actions. Trademark Law, as amended in 2001, art.
53 (providing that where the issue of trademark infringement arises “the interested parties shall
resolve the dispute through consultation; where they are reluctant to resolve the matter through
consultation or the consultation fails, the trademark registrant or interested party may institute
legal proceedings in the People's Court or request the administrative authority for industry and
commerce for actions.”),
available at
http://www.chinaiprlaw.com/english/laws/laws11.htm
[hereinafter Trademark Law (PRC)]. Under the Beijing Declaration, established November 2001,
remedies similarly include both administrative and court actions, however, administrative tribunals
are granted the power to compel mediation at their discretion. Beijing Declaration,
supra
note 14,
art. 15.
In the event that the rights of the proprietor have been infringed upon, the
respective proprietor may lodge a complaint with the relevant department at the
place where the infringement occurred or directly file a lawsuit with the people's
court. When dealing with an infringement case, the relevant administrative
department may carry out mediation according to law; where the mediation fails,
the proprietor may file a lawsuit with the people's court.
Id.
By contrast, the Symbol Regulations similarly track the obligation of mediation prior to
enforcement activity contained in the then-existing Trademark Law, but added a significant
variation by allowing the
litigants
to chose whether or not to pursue mediation. Symbol Regulations,
supra
note 20, art. 10 (“The dispute over the infringement of the exclusive right of the Olympic
Symbols may be settled by mediation. If one of the parties refuses to mediate or the mediation is
unsuccessful, the right owner of the Olympic Symbols or other interested persons may litigate it to
the court, or claim for the resolution to the administration departments for industry and
commerce.”). On a practical basis, while the Beijing Declaration contains some important advances
in trademark protection, the Symbol Regulations
might
ultimately have a more wide-spread impact
since they are not region specific in their applicability.
See
note 75
infra
and accompanying text
.
[7:433 2008] The John Marshall Review of Intellectual Property Law 440
(3) The name, emblem and symbol of the Chinese Olympic Committee
(“COC”);
(4) The name, emblem and symbol of the Beijing 2008 Olympic Games Bid
Committee;
(5) The name and emblem of the Organizing Committee of Games of the
XXIX Olympiad; the mascots, anthem and slogans of the XXIX Olympic
Games; the 'Beijing2008', the XXIX Olympic Games and their
abbreviations;
(6) Other symbols related to the XXIX Olympic Games prescribed in
Olympic Charter and Host City Contract for the Games of the XXIX
Olympiad.23
Under these Regulations, the rights holders of the Olympic Symbols are granted
“exclusive rights.”24 Unauthorized uses of the Symbols “for business purposes”
(commercial use)25 are expressly prohibited.26 Under the Symbol Regulations,
“business purposes” is defined as “using the Olympic Symbols to make profits in the
following ways:
(1) To use the Olympic Symbols on the commodities, the package or the
container of the commodities, and the related trade documents;
(2) To use the Olympic Symbols in the service items;
23 Symbol Regulations,
supra
note 20, art. 2. With its reference to protection of “other symbols
prescribed in the Host Contract for the Games,” the Symbol Regulations are clearly designed to
assure that any Olympic Symbol required to be protected in accordance with the Host Contract with
the IOC falls within their scope of protection. Unfortunately, it is not clear precisely which
additional terms fall within the scope of this protection since the Host Contract is not publicly
available. Moreover, the guarantees required during the candidature process include protections for
Olympic-related intellectual property.
See
MANUAL,
supra
note 1, at 19 (requiring “adequate and
continuing legal protection” of “the Olympic symbol by, the host country). For purposes of this
Article, I will be focusing largely on efforts to protect the traditional Olympic symbols, including the
five circle design, as well as the specialized symbols of the Beijing Olympics itself, including the five
“mascots” of the Beijing 2008 Olympics. The Beijing-specific symbols are generally referred to as
“fuwa,” with each character representing one of the colors of the Olympic Rings.
See
Official
Mascots,
supra
note 4.
24 Symbol Regulations,
supra
note 20, art. 4.
25 As with any document which is translated, the English language translations of the Beijing
Declaration and other regulations on which I rely are those I have cited. I have compared several
different English language versions and the ones cited appear to me to be the most accurate (literal)
translation I could find. Such literalness is particularly important in understanding the scope of
remedies afforded under the Beijing Declaration, the Symbol Regulations and present Chinese
Trademark Law because they appear to convey more accurately the practical application of the laws.
Other translation may scan better as a translation but in the effort to translate Chinese into English
some translators take liberties that actually end up changing the meaning.
See
note 33
infra
.
26 Symbol Regulations,
supra
note 20, art. 4.
[7:433 2008] Trademarks and the Beijing Olympics
441
(3) To use the Olympic Symbols in advertisements, commercial exhibitions,
commercial performance and other commercial activities;
(4) To sell, import and export the commodities with the Olympic Symbols;
(5) To produce or sell the Olympic Symbols;
(6) Any other activities may make the third parties believe that there is
sponsorship or other support relationships between the users and the right
owners of the Olympic Symbols.27
The enforcement of these Symbol Regulations is given to the State
Administration for Industry and Commerce (“SAIC”).28 The Symbol Regulations,
however, do not grant the SAIC exclusive jurisdiction over Olympic Symbol
violations.29 Instead, they expressly recognize that Customs shall have jurisdiction
over “import and export cargoes . . . suspected of infringing the exclusive rights of the
Olympic Symbols.”30 In addition, Article 14 of the Symbol Regulations provides that
Olympic Symbols shall “also be protected according to the provisions of other laws
and administrative regulations such as the Copyright Law . . . , Trademark Law . . . ,
and the Regulations on the Administration of Special Symbols.31 Furthermore,
Article 10 specifically recognizes the right of the owner to seek relief in court if it so
chooses.32
Under the Symbol Regulations, where a person makes unauthorized use of an
Olympic Symbol, such as manufacturing or selling counterfeit Olympic mascots, an
injunction must issue and the infringing goods must be “confiscated and defaced,”33
27
Id.
art. 5. In addition to protecting Olympic
trademarks
and other Olympic symbols, Article
5(6) of the Regulations also provides protection against ambush marketing activities (among other
unauthorized uses).
See
Doris Estelle Long,
Ambush in Beijing: New Effort to Curb Ambush
Marketing at the Beijing Olympics,
Conference Proceedings of the 2008 Fordham Annual
Conference on Intellectual Property Law and Policy (2008) (forthcoming) (copy on file with author)
[hereinafter, Long,
Ambush Marketing
].
28
Id.
art. 6. This agency is sometimes referred to as “AIC” for Administration for Industry and
Commerce. Like the other administrative agencies referred to in this article, SAIC has diverse
offices including those at the local level such as the Beijing Administration for Industry and
Commerce (“BAIC”) which would be one of the agencies with primary responsibility for enforcement
activities around Olympic sites.
29
Cf
. Symbol Regulations,
supra
note 20, arts. 12, 14 (giving customs the power to investigate
infringement of imports and exports and stating that Chinese patent and trademark laws also
protect Olympic symbols).
30
Id.
art. 12.
31
Id
. art. 14.
32
Id
. art. 10 (discussing the “two paths” of intellectual property enforcement under Chinese
law).
33
Id
. The term “defaced” is significant. While other translations use the term “destroy,” the
reality is that under present Chinese trademark law, such items do NOT have to be destroyed.
See
Regulations for the Implementation of Trademark Law, art. 44 (promulgated by the Decree No. 358
of the State Council, Aug. 3, 2002, effective Sept. 15, 2002),
reprinted in
STATE INTELLECTUAL
PROPERTY OFFICE OF PEOPLES REPUBLIC OF CHINA, INTELL. PROP. LAWS AND REGS 121 (P.R.C)
(2003) [hereinafter Trademark Regulations]. To the contrary, infringed goods may even be resold at
public auction after seizure so long as the trademark has been removed.
See
id.
[7:433 2008] The John Marshall Review of Intellectual Property Law 442
along with the “special tools for producing the infringing commodities.”34 The Symbol
Regulations further provide that the illegal gains of the infringers may be confiscated
and the infringers shall also be fined under [up to] “five times of the illegal gains.”35
In the absence of illegal gains, the infringers may still be fined.36
These provisions bear a strong facial similarity to existing Chinese trademark
law, which similarly provides for confiscation and destruction of infringing goods,37
injunctions,38 and the award of fines for trademark infringement.39 Yet beyond this
facial similarity to then-existing Chinese trademark law, the Olympic Symbol
Regulations provide several benefits to Olympic Symbols that trademarks do not
presently enjoy.40 These new developments, I believe, demonstrate that there is a
possibility
for a resolution of many current areas of contention between China and
the United States over enforcement modalities.
The disputes between the United States and China over IPR enforcement are
varied and not readily quantifiable. One of the present disputes between the parties
concerns the threshold levels at which criminal actions can be initiated against
pirates and counterfeiters.41 In April 2007, the United States initiated dispute
resolution proceedings before the WTO with regard to several issues concerning
China’s alleged failure to meet its obligations under TRIPS for the protection of
intellectual property rights and intellectual property-based goods.42 Contrary to
popular opinion, the United States did not raise a direct claim regarding the
definition of “effective enforcement” under Article 41.43 It did, however, challenge the
34 Symbol Regulations,
supra
note 20, art. 10.
35
Id.
36
Id.
37 Trademark Law (PRC),
supra
note 22, art. 53. It should be noted, however, that Chinese
trademark law currently establishes a hierarchy of relief, which allows for removal of the trademark
as opposed to the goods destruction where such removal is possible. Trademark Regulations,
supra
note 33, art. 44 (providing that if it is difficult to detach “the representations” of the trademark, then
both the representations and the goods “shall be confiscated and destroyed”).
See generally
GANEA
& PATTLOCH,
supra
note 18, at 312–14.
38 Trademark Law (PRC),
supra
note 22, arts. 13.
39
Compare
Trademark Law (PRC),
supra
note 22, arts. 45 & 48
and
Trademark Regulations,
supra
note 33, art. 42
with
Symbol Regulations,
supra
note 20, art. 10.
40
See
Olympic Logos, Images Get Protection
, CHINA DAILY, Apr. 18, 2007,
available at
2007
WLNR 7264280 (noting that “[t]his is China’s first regulatory effort specifically designed to protect
Olympic intellectual properties in accordance with international practice”).
41
See
China Protection and Enforcement, supra
note 9.
42
See
id.
;
Trading and Distribution
,
supra
note 9;
see also
China's IPR Action to be Probed
,
CHINA DAILY, Sept. 27, 2007,
available at
2007 WLNR 18897927 (noting that the United States
“filed a complaint against China’s legal regime for protecting and enforcing copyrights and
trademarks”). Presently, a panel has been established, briefs have been filed and the first round of
oral statements have been made.
See generally
China—Measures Affecting the Protection and
Enforcement of Intellectual Property Rights, WT/DS362,
available at
http://www.wto.org/english/
tratop_e/dispu_e/cases_e/ds362_e.htm. For a copy of all U.S. filings in the case to date, see U.S.
Briefs Filed in WTO Dispute Settlement Proceedings—Pending, http://www.ustr.gov/
Trade_Agreements/Monitoring_Enforcement/Dispute_Settlement/WTO/Dispute_Settlement_Index_-
_Pending.html.
43
See
TRIPS Agreement,
supra
note 8, art 41. Article 41 of TRIPS requires that members
provide “effective” and “deterrent” enforcement of intellectual property rights.
Id.
Present
proceedings before the Dispute Settlement Body of the WTO do not directly address whether the
sum of China’s enforcement efforts meet these requirements. Instead, present consultation requests
outline specific procedural or substantive failures in providing the necessary infrastructure for
[7:433 2008] Trademarks and the Beijing Olympics
443
procedural and structural effectiveness of required criminal enforcement modalities
under TRIPS.44
Under TRIPS, in addition to requiring effective and deterrent enforcement of
intellectual property rights through fair and equitable civil processes,45 member
countries must also provide effective criminal enforcement against “copyright piracy
on a commercial scale”46 and “willful trademark counterfeiting.”47 Such effective
enforcement requires not merely the
possibility
of criminal enforcement, but process
and procedures that make such enforcement practically and
actually
available to
combat trademark counterfeiting.48 It further requires that all penalties and fines
imposed “provide a deterrent.”49 One of the issues at the heart of the present IPR
dispute between China and the United States includes the critical issue of whether
the threshold requirements for criminal sanctions against trademark counterfeiters
under Chinese law is so high that it effectively precludes such sanctions.50
The valuation of the harm caused by the unauthorized production, distribution,
and sale of counterfeit goods is a particularly problematic issue for trademark owners
in China. Not only is valuation fundamental to the determination of when the
threshold for criminal enforcement arises,51 but it is also critical in the determination
effective enforcement.
See
China Protection and Enforcement
,
supra
note 9;
Trading and
Distribution
,
supra
note 9.
44
See Officials: Different Practices Will Not Hinder IPR Fight
, CHINA DAILY, Apr. 17, 2006,
available at
2006 WLNR 647945 (stating “[a] number of countries, including the United States,
claim that China’s criminal procedures and penalties are inconsistent with the World Trade
Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights”).
45
See generally
TRIPS Agreement,
supra
note 8, arts. 41–50. A complete discussion of the
enforcement obligations imposed under TRIPS is beyond the scope of this Article. Briefly, TRIPS
obligates member countries to establish minimum procedures for the effective enforcement of
intellectual property rights. These minimum procedures include the availability of adequate
compensation, as well as ex parte relief, including injunctions, seizure and destruction of infringing
goods and equipment.
See generally
Doris Estelle Long,
The Impact of Foreign Investment on
Indigenous Culture: An Intellectual Property Perspective,
23 N.C. J. INT'L L. & COM. REG. 229, 248–
62 (1998) (briefly summarizing the provisions governing effective enforcement of intellectual rights,
including trademarks, under TRIPS).
46 TRIPS Agreement,
supra
note 8, art. 61. Criminal penalties may also be imposed by
member states against other forms of intellectual property violations, but the application of such
penalties remains at each Member Country’s discretion.
Id.
47
Id.
48
Id.
49
Id.
In addition to imprisonment and/or monetary fines “consistent[] with the level of
penalties applied for crimes of a corresponding gravity,” Article 61 also requires that “in appropriate
cases,” additional remedies, including seizure, forfeiture and destruction of the infringing goods “and
of any materials and implements the predominant use of which has been in the commission of the
offence” be available.
Id
.
50
See
China Protection and Enforcement
,
supra
note 9 (noting U.S. concerns about “the
thresholds that must be met in order for certain acts of trademark counterfeiting . . . to be subject to
criminal procedures and penalties”). The subject matter of the dispute is not limited to trademark
threshold requirements but also includes threshold requirements for copyright piracy.
Id.
51 Under Article 59 of Chinese Trademark Law, criminal liability is only available if “the case
is so serious as to constitute a crime.” Trademark Law (PRC),
supra
note 22, art. 59. The
determination of “seriousness” is based on the amount of profit that the infringer makes.
Interpretation by the Supreme People's Court and the Supreme People’s Procuratorate on Several
Issues of Concrete Application of Laws in Handling Criminal Cases of Infringing Intellectual
Property (promulgated by the 1331st Session of the Judicial Comm. of the Supreme People’s Court
[7:433 2008] The John Marshall Review of Intellectual Property Law 444
of administrative fines and the amount of compensation awarded to intellectual
property owners.52 Under present Chinese Trademark Law, penalties and damage
awards are based upon valuations which use the actual sales price (the
counterfeiter’s price) or the “labeled” price, which largely amounts to the same
thing.53 According to Article 12 of the Judicial Interpretation by the Supreme
People’s Court,
Value of the products produced by infringing on intellectual property shall
be computed according to the prices at which such products are actually
sold. Value of the products produced by infringing on intellectual property
produced, stored, transported, and those not sold shall be computed
according to the labeled prices or the actual prices found to be sold at after
investigation. Value of the products produced by infringing on intellectual
property without labeled prices or whose actual prices are impossible to be
ascertained shall be computed according the middle market prices of such
products.54
Any focus on the counterfeiter’s price for establishing harm necessarily
undervalues such harm and fails to provide the necessary deterrent effect to provide
for effective enforcement.55 As I have said in many venues, piracy and counterfeiting
are businesses. So long as awards and fines remain small, and profits large,
deterrence is a pipe dream. The Symbol Regulations, however, on their face appear
to provide the means for substantially ameliorating this situation.56
and the Tenth Procuratorial Comm. of the Supreme People’s Procuratorate, Nov. 11, 2004, effective
Dec. 22, 2004), art. 1,
available at
http://english.ipr.gov.cn/ipr/en/info/
Article.jsp?a_no=2038&col_no=121&dir=200603 [hereinafter Judicial Interpretation] (“establishing
seriousness thresholds if “the amount of illegal business volume being more than RMB 50,000 or
that of illegal gains being more than RMB 30,000; [or] (2) forging more than two registered
trademarks, the amount of illegal business volume being more than RMB 30,000 or that of illegal
gains being more than RMB 20,000.”).
52 Trademark Law (PRC),
supra
note 22, arts. 45, 47, & 48 (authorizing the imposition of a fine
on parties who improperly use trademarks);
id.
arts. 53 & 59 (authorizing the owner of the infringed
trademark to seek compensation for the damages caused by the infringement). Even Chinese law
recognizes the difficulty in establishing compensation rates in cases of trademark violations.
Id.
art.
56 (noting that there might be circumstances where “it is difficult to determine the profit that the
infringer has earned because of the infringement in the period of the infringement or the injury that
the infringee has suffered from the infringement in the period of the infringement”).
53
See
Judicial Interpretation,
supra
note 51, art. 12, (stating that the “[v]alue of the products
produced by infringing on intellectual property produced, stored, transported, and those not sold
shall be computed according to the labeled prices or the actual prices found to be sold at after
investigation”).
54
Id.
55
See
David J. Goldstone & Peter J. Toren,
The Criminalization of Trademark Counterfeiting
,
31 CONN. L. REV. 1, 74 (1998) (discussing the criminalization of trademark counterfeiting in the
United States and suggesting that “the most obvious way to avoid such valuation problems would be
to base the ‘loss’ figure on the retail price of the genuine merchandise, [which is] precisely the price
the counterfeiter tries to undercut”).
56
See
Symbol Regulations,
supra
note 22, art. 13 (stating the basis for the amount of
compensation for losses caused by infringement will be “determined on the basis of the loss that
right holder has suffered from the infringement or the profit the infringer has obtained through the
infringement”).
See also
discussion
infra
notes 62–74 and accompanying text.
[7:433 2008] Trademarks and the Beijing Olympics
445
As opposed to relying on the actual value or labeled value for determining the
fines to be levied, the Regulations specifically allow such fines to be tied to the license
fee for the use of the Olympic Symbol.57 Under Article 13, compensation for the
unauthorized use of a Symbol shall be “according to the loss of the infringed, or the
gain of the infringer caused by the infringement.”58 This language mirrors
traditional Chinese Trademark Law.59 Significantly, however Article 13 provides
that if such loss or gain cannot be determined, “the compensation shall be reasonably
determined with reference to the licensing fees for using [the] Olympic symbol.”60
This focus on a tangible valuation based
not
on pirate values, but instead based
clearly on the value to the trademark owner is a major step forward and could result
in significant fines, given the relatively high license fees charged for use of the
Olympic Symbols.61
This advance in relief for Olympic Symbol protection is combined with an
increase in the amount of fines for engaging in the unauthorized use of intellectual
property. Current Trademark Law provides that fines for unauthorized use of
registered trademarks shall be up to three times the amount of the “illegal business
turnover.”62 Where it is impossible to determine the amount, then a fine of up to
100,000 RMB may be imposed.63 By contrast, under the Regulations governing the
Protection of the Olympic Symbols, fines are increased to up to five times the amount
of the illegally obtained income.64 Where no such illegal income can be ascertained
(including presumably where the unauthorized use has been stopped before any sales
have occurred), fines up to 50,000 RMB may be imposed.65 The monetary fines levied
on counterfeiters who fail to keep accurate records (the vast majority, no doubt) are
markedly lower under the Symbol Regulations.66 Given that the Regulations,
however, provide that values will be based on Olympic licensing fees in the absence of
other proof, it is likely that most infringers will be subjected to the significantly
57
Id.
58
Id.
59
See
Trademark Law (P.R.C.),
supra
note 22, art. 56 (stating “[t]he amount of damages shall
be the profit that the infringer has earned because of the infringement in the period of the
infringement or the injury that the infringee has suffered from the infringement in the period of the
infringement”). Notably, Article 13 of the Symbol Regulations also provides for consideration of “the
reasonable costs to deter the infringements.” Symbol Regulations,
supra
note 20, art. 13, which is
also mirrored in Chinese trademark law. Trademark Law (P.R.C.),
supra
note 22, art. 56.
60 Symbol Regulations,
supra
note 20, art. 13.
61
Cf.
INTL OLYMPIC COMM., SYDNEY 2000 MARKETING REPORT 89–90 (2000),
available at
http://www.olympic.org/uk/utilities/reports/index_uk.asp (follow “2000—Marking Report Sydney
2000” hyperlink; then follow “Section 5—Sydney 2000 Olympic Licensing”) (noting that
approximately 100 licensees generated licensing revenues in excess of fifty-two million U.S. dollars
for the 2000 Olympic games);
see generally
Licensed Products,
supra
note 5 (stating that “[b]y 2008,
it is estimated that 6,000–7,000 kinds of licensed products will be showcased at more than 10,000
licensed stores nationwide”).
62 Trademark Regulations,
supra
note 33, art. 52.
63
Id.
The U.S. dollar equivalent of 100,000 RMB is approximately $12,289, utilizing a
conversion rate of 1 USD=7.00 RMB. Yahoo Finance Currency Converter, http://finance.yahoo.com/
currency/convert?amt=1&from=USD&to=CNY&submit=Convert (last visited May 4, 2008).
64 Symbol Regulations,
supra
note 20, art. 10.
65
Id.
66
Id.
The absence of such recordkeeping would presumably result in a lack of evidence
concerning the amount of profit which the infringer earned through the illegal activity in question.
Id.
[7:433 2008] The John Marshall Review of Intellectual Property Law 446
higher mandatory multiple. The remedies available to those infringed upon for the
unauthorized use of Olympic Symbols are further strengthened by the Beijing
Municipal Declaration, which provides that even if there are uses which are not
covered by present laws, fines from 1,000 RMB up to 30,000 RMB may be imposed if
those uses are prohibited by the Declaration itself.67
The Symbol Regulations represent a significant advance in the protection of
trademarks and other commercial symbols. More than simply improving such
critical issues as valuation and penalty determinations, these regulations represent a
strong declaration by the Government of China of the importance of protection for
certain trademarks—trademarks which necessarily are owned at least in part by
foreign entities.68 Such advances should provide a strong basis for increasing the
protection of trademarks generally in China.69 As discussed below, however, there
may be cultural reasons why such one-to-one enhancement may not occur.70
II. THE COUNTERFEITERS START EARLY
In Even with special regulations protecting Olympic symbols, the counterfeiters
have started early.71 Piracy and counterfeiting, at its heart, is a business. In my
lengthy experience in international IP enforcement, I have yet to meet or hear of
67
See
Beijing Declaration,
supra
note 14, art. 14. Presumably, these fines might also be
applied in cases of “ambush” marketing which do not fit clearly within current trademark and unfair
competition prohibitions.
See
Long,
Ambush Marketing
,
supra
note 27. The Beijing Declaration
becomes more significant in light of the fact that most counterfeit Olympic merchandise will most
likely be governed by it since it covers the location of the Olympics where most counterfeit
merchandise can be expected to be sold.
Id.
68
See
Vince Chong,
Beijing Steps Up Fight Against Fakes
, STRAITS TIMES, Feb. 2, 2008,
available at
2007 WLNR 1951437.
69
See
Nation Vows Full Protection of IPR
, CHINA DAILY, Mar. 4, 2008,
available at
2008
WLNR 4227027 (stating that “the mechanism to protect intellectual property rights (IPR) will be
implemented fully across the country this year . . . .”). It should be noted that these protection
mechanisms are not limited to heightened enforcement but also include such practical efforts as
certifying legitimate products available in limited venues, including authorized Olympic stores.
See
Lei Lei,
Forum Stresses IPR Protection for Games
, CHINA DAILY, Apr. 3, 2004,
available at
2004
WLNR 9904636 (stating that techniques to protect intellectual property rights include: (1) ongoing
promotion about IPR protection integrated into Olympic Celebrations; (2) a marketing plan that
includes only certified products; (3) customer service; (4) enhancing the IPR protection in all
pertinent areas; and (5) severely punishing violators).
70
See discussion infra
Part II;
see also
Dan Martin,
Fakes a Real Fact of Life in China’s
Heated Economy
, STANDARD, Apr. 11, 2007, http://www.thestandard.com.hk/
news_detail.asp?pp_cat=20&art_id=41990&sid=13078355&con_type=1&d_str=20070411 (profiling
the existence of a “Fake Disneyland” in the heart of Beijing and the lack of concern many Chinese
citizens have for violation of intellectual property rights).
71
See,
e.g
,
Beijing Seizes Nearly 30,000 Fake Olympic Products
, PEOPLES DAILY ONLINE, June
18, 2007, http://english.people.com.cn/200706/18/eng20070618_385151.html (noting nearly thirty-
thousand stuffed-animal Olympic mascots were seized);
Beijing to Crackdown on Street Peddlers
Selling Fake Olympic Mascots
, PEOPLES DAILY ONLINE, July 3, 2007, http://english.people.com.cn/
90001/90776/6205335.html (stating Beijing police are shifting their focus from counterfeit
manufacturers to street peddlers); Grant Clark & Wing-Gar Cheng,
China Aims at Olympic
Knockoffs; Crackdown Ordered on Fake Souvenirs
, INTL HERALD TRIB., Apr. 26, 2007, at 10
available at
2007 WLNR 7987447 (noting that four-percent of trademark violations in Beijing last
year were trademark-related, and anticipating a rise in that number).
[7:433 2008] Trademarks and the Beijing Olympics
447
what I refer to as the “patriotic pirate.” Pirates sell whatever goods are popular. If
there is a market demand for a particular sound recording, it does not matter if the
singer is local or foreign.72 If there is money to be made, the pirate will sell it.
Statistics on the amount of pre-Game counterfeiting activity of Olympic Symbols in
China are difficult to obtain. News stories derived from English language
newspapers and websites, however, demonstrate that everything from stuffed animal
mascots to mascot shaped phones to decals are already being pirated in large enough
numbers to warrant publicized seizures of the goods.73 Thus, even in connection with
goods for which the Chinese Government has taken strong measures to prohibit
counterfeiting,74 the pirates continue to violate the laws.
III. PIRACY IN CHINA IS NOT LIMITED TO HARD GOODS COPIES
While trademark owners are used to policing hard goods markets (a difficult
task admittedly in a country as large and populous as China),75 China has become a
significant member of the Internet Club.76 Present internet use statistics indicate
that there are more Chinese language websites than English language ones.77
Infrastructure has similarly kept pace, with over 220 million users as of February
2008,78 and over nine million domain names registered using the “.cn” country code
in China.79 The counterfeiters have already begun to take advantage of the
commercial opportunities of the Olympics and the internet by launching shadow sites
purporting to offer tickets, travel and other Olympic sponsored goods and services.80
This development means trademark owners must go beyond traditional concepts of
trademark protection in China. Potential counterfeiting activities that may occur on
shadow sites, or even on internet auction sites, are becoming realities in China and
72
See generally
Press Release, Int’l Intellectual Prop. Alliance, USTR Again Names China as a
Priority Foreign Country Under Special 301 (Apr. 30, 1996), http://www.iipa.com/pressreleases/
1996_Apr30_china_pressrelease.html (stating levels of piracy in China run from fifty to ninety-nine
percent depending upon the genre).
73
Beijing Seizes Nearly 30,000 Fake Olympic Products
,
supra
note 71.
74 See discussion
infra
notes 63–72 and accompanying text.
75 Enforcement becomes even more difficult when the reality of Chinese geography an
development is taken into consideration. Like most countries, China presents a diverse array of IP
protection challenges. From the coastal areas, where China resembles a developed country to the
interior where development is markedly lower yet many pirate factories are allegedly located; from
the Economic Development Zones to the mountainous borders on China’s western frontiers, China’s
geography is as diverse as the enforcement challenges such diversity presents.
76
See Numbers
, TIME, May 5, 2008, at 16 (revealing that 220 million Chinese were using the
Internet as of February 2008, compared to 216 million U.S. citizens).
77
See
CHINA INTERNET NETWORK INFORMATION CENTER, STATISTICAL SURVEY REPORT ON THE
INTERNET DEVELOPMENT IN CHINA 26 (2008) [hereinafter SURVEY REPORT],
available at
http://www.cnnic.net.cn/uploadfiles/pdf/2008/2/29/104126.pdf (stating China currently has over one
million five hundred thousand websites, with a growth rate of over seventy-eight percent since
2006).
78
Numbers
,
supra
note 76, at 16.
79 SURVEY REPORT,
supra
note 77, at 9.
80
See, e.g.
, Cindy Loose,
Going for Your Gold
, WASH. POST, Mar. 2, 2008, at 9;
Fake Olympic
Site ‘Tricks Users,’
BBC NEWS, Oct. 1, 2007, http://news.bbc.co.uk/2/hi/asia-pacific/7021608.stm;
In
Brief
, S. CHINA MORNING POST, Oct. 1, 2007, at 5,
available at
2007 WL 19154350.
[7:433 2008] The John Marshall Review of Intellectual Property Law 448
must form part of a trademark owner’s enforcement efforts.81 Admittedly, the
challenge to such practices is relatively new in China. But, in October 2007, police
arrested a man in Southern China for running a shadow Beijing Olympics website
which he used to defraud consumers through fake contests.82 Given the present
determination of the Chinese government to protect the Olympic Symbols, we will
undoubtedly see new ground plowed in this area.
IV. ENFORCEMENT PLUS: A FUTURE TREND?
The advances in protection represented by the Regulations to Protect the
Olympic Symbols are only part of the significant developments in intellectual
property protection in China as a result of the Beijing Olympics. In fact, one of the
most significant developments is the active enforcement campaign undertaken by the
Chinese Government to assure protection of the Olympic Symbols.83 This effort has
no present equivalent in general trademark enforcement protection in China.
First, in addition to involving the administrative tribunals and the courts in the
enforcement, the Regulations expressly gave Chinese Customs the obligation to
investigate suspected infringements of the Olympic Symbols for both exported and
imported cargoes.84 These new measures have been supported by training programs
aimed directly at improving customs expertise in this area.85 Enforcement training
programs for other intellectual property protection organizations have also been
conducted and a “rapid city Olympic intellectual property protection linkage
mechanism” has been established to provide fast action on potential infringements.86
Enforcement is not limited to Beijing. To the contrary enforcement sweeps have been
planned for other major cities in China, including Quingdao, Tianjin and Shanghai.87
In addition to mobilizing traditional enforcement personnel, the Chinese
Government has also mounted a major public relations campaign to educate the
public about the importance of protecting the Olympic Symbols.88 Articles have
appeared stressing the harm that counterfeit products can cause.89 In one case,
81
Cf.
Olympic Logos, Images Get Protection
, China Daily, Apr. 18, 2007,
available at
2007
WLNR 7264280 (recommending that “websites should not get involved in sales of counterfeits,
otherwise they risk punishments given to those in real world marketplaces” but recognizing that the
Internet makes fighting counterfeiting more difficult).
82
See
Fake Olympic Site ‘Tricks Users
,
supra
note 80.
83
Olympic Logos, Images Get Protection
,
supra
note 81 (discussing China’s new regulations to
safeguard Olympic logos and images).
84 Symbol Regulations,
supra
note 20, art. 12.
85 China Fun,
Protection of the Olympic Symbol: Beijing is Resolutely
, Sept. 26, 2007,
http://www.china-fun.net/2008/preparation/200709261/1510291.shtml (last visited Apr. 18, 2007).
86
Id.
87
Id.
88 Tang Yuankai,
Symbol of Protection
, BEIJINGREVIEW.COM, Jan. 16, 2007,
http://www.bjreview.com/quotes/txt/2007-01/16/content_54311.htm (describing how enforcement
personnel fined a restaurant owner for copyright infringement because he used “the words ‘wish the
2008 Beijing Olympics success’ on [its] napkins”).
89
See, e.g.
,
Charles Whelan,
Beijing Fighting to Save Integrity of Olympic Rings
, BUS. DAY (S.
AFRICA), Apr. 12, 2007, at 19,
available at
2007 WLNR 7003872; Geoffrey A. Fowler,
China’s Logo
Crackdown—The Nation Is Awash in Phony Western Brands but Draws the Line at Valuable
Olympic Symbol
, WALL STREET J., Nov. 11, 2005, at B1.
[7:433 2008] Trademarks and the Beijing Olympics
449
involving the seizure of 12,800 partially finished Fuwa (the five major mascots of the
Beijing Olympics) and more than 12,700 finished products confiscated in February
2007, a local official was quoted in the Beijing Daily Messenger warning people
against the health hazard posed by the products, which were sometimes filled with
industrial waste that could threaten people’s health.90
Consumers have been drafted into the enforcement effort. A hot line has been
set up in Beijing and rewards are being offered for truthful information regarding
infringing activity.91 Corporations are further being urged to take pledges to avoid
infringing the Symbols.92 Those who violate the Olympic Symbols may also find
themselves subject to public criticism in the press.93
While it is too soon to ascertain the final impact of these efforts, there is some
evidence that this concerted effort is having a positive impact on counterfeiting
activities connected with the Olympics. Reports indicate that counterfeit Olympic
merchandise does not appear readily available at least around major Olympic
venues.94 This fact alone demonstrates a truth we have long known about
international enforcement of intellectual property rights. Once the infrastructure for
enforcement is in place,95 actual enforcement depends largely on the importance
which local governments place on such activities.96 The mobilization of the necessary
90
Beijing Seizes Nearly 30,000 Fake Olympic Products
,
supra
note 71.
91
Beijing Sets Up Copyright Theft Hotline
, AGENCE FRANCE PRESSE ENGLISH WIRE, Apr. 24,
2007,
available at
WL, 4/24/07 Agence Fr.-Presse 05:19:00;
see also
Symbol Regulations,
supra
note
20, art. 11 (providing “[a]ny organization and individual may report any activity in violation of
Olympic intellectual property rights to the administrative departments of industry and commerce,
intellectual property rights, copyright, etc.; and shall be rewarded if the case reported proves to be
true”).
92 Beijing Declaration,
supra
note 14, art. 9 (providing that “[a]dvertisers, advertising agents
and advertisement publisher shall not infringe upon the Olympic intellectual property rights”);
see
also
Yuankai,
supra
note 91 (noting that companies’ use of Olympic emblems and other symbols are
conditioned on the fact that they are used to fulfill social responsibility).
93 Bi Xiaoning,
Fake Ties
, CHINA DAILY, Mar. 17, 2007, at 9,
available at
http://www.chinadaily.com.cn/bw/2008-03/17/content_6540586.
94 Geoffrey A. Fowler,
In China, Olympic Knockoff Spark Crackdown but State Ignores Other
Fake Logos
, GLOBE AND MAIL, Nov. 4, 2005, at B9,
available at
2005 WLNR 17832472 (reporting
that despite increasing demand the number of counterfeit Olympic goods is small).
95 Timothy P. Trainer,
The Fight Against Trademark Counterfeiting
, 29 CHINA BUS. REV. 6,
Nov.–Dec., 2002,
available at
http://www.chinabusinessreview.com/public/0211/trainer.html (stating
that the Chinese government will need to “involve every aspect of the enforcement system:
administrative agencies, police, prosecutors, and judges”). This infrastructure necessarily includes
the legal infrastructure, including appropriate legal protection for intellectual property and effective
and fair procedures for securing such protection, as well as an adequate level of training for judges,
lawyers, police, customs and other enforcement personnel. The development and maintenance of
such infrastructure is undeniably an on-going process.
Id.
(stating that many enforcement training
seminars have taken place throughout China over the past several years, but “given the scope of the
problem and the size of [China means that] much more education and training is necessary”).
96
See generally
Tang Yuankai,
Cashing In On the Dream
, BEIJINGREVIEW.COM, Sept. 14,
2007, http://www.bjreview.com/olympic/txt/2007-09/14/content_77028.htm (stating that Olympic IPR
protections are “also very important carriers of culture”). There are other factors beyond the
heightened enforcement efforts that may play a role in the success of Chinese efforts to protect the
Olympic Symbols.
Id.
In particular, strict manufacturing controls, including the requiring of
specialized holographic identity tags on authorized goods, and strict distribution channels, including
limiting the sales of Olympic merchandise to licensed stores, undoubtedly also play a role and may
[7:433 2008] The John Marshall Review of Intellectual Property Law 450
players in any IP enforcement program—including, significantly, the public as a
result of public relations and education campaigns to alert them to the importance of
protecting intellectual property, is not an easy undertaking.97 The apparent
existence of this mobilization in China in connection with the Olympic Symbols is a
tremendous advance. On the other hand, unless these efforts spill over into the
protection of
other
marks, including those owned by foreign companies, such
mobilization may prove unfortunately evanescent.
V. OLYMPIC GOLD: THE TRAINING PERIOD MAY NOT BE OVER
While Olympic
symbols
may currently be the subject of heightened protection,
cultural perceptions of the differences between traditional, commercial marks and
Olympic symbols may make any appreciable “improvement” in IPR protection
temporary at best. The heightened public perception of the importance of protecting
the Olympic Symbols from unauthorized uses, and the active role that the public has
taken in helping to protect Olympic Symbols may not be readily transferable to other
commercial marks.98 From the point of view of trademark law, there is no significant
difference between an Olympic logo and any other trademark when it comes to the
need for protection against counterfeit and other infringing uses. Yet culturally, the
Olympic Symbols may not be
perceived
as the functional equivalent of a Louis
Vuitton logo or the Prada trademark, two popular luxury brands in China.99
The Olympic Symbols have been actively promoted as having a double
significance; one, commercial and the other as “important cultural carriers of the
Olympic movement, a symbol of the Olympic spirit.”100 The spirit represented by the
Olympics has been promoted as more than an athletic contest to be merchandised.101
To the contrary, five “cultural events” have been held, pre-opening day, promoting
the strong connection between the Olympic spirit and Chinese culture and
tradition.102 In the Manual for Beijing Olympic Volunteers, the BOCOG stresses the
explain some of the differences in the apparent success of present Olympic Symbol enforcement
versus traditional commercial trademark protection.
Id.
97 Brent T. Yonchara,
Enter the Dragon: China’s WTO Accession, Film Piracy and Prospects
for the Enforcement of Copyright Laws
, 9 UCLA ENT. L. REV. 389, 416–17 (2002) (arguing that
educating the mass about intellectual property is key in preventing piracy in China).
98
See
Peter K. Yu,
From Pirates to Partners: Protecting Intellectual Property in China in the
Twenty-First Century
, 50 AM. U. L. REV. 131, 165 (2000) (stating that Confucian beliefs, socialist
economic system, and general skepticism of Western institution present a barrier to intellectual
property protection); Yonchara,
supra
, note 974, at 398–401 (discussing how the Confucian concepts
of li and fa have hindered enforcement of intellectual property rights).
99 Joseph Simone,
In the Courts: Holding the Landlord Liable—New Tools for Counterfeit
Crackdown in China
, WIPO MAG., Nov. 2007, http://www.wipo.int/wipo_magazine/en/2007/06/
article_0006.html (stating that these are two of the luxury brands that were the focus of the first
successful civil action against a landlord in China for providing a venue for counterfeiters).
100 China Fun,
supra
note 85 (quoting Li Yan Jun, Director Beijing Olympic Organizing
Committee).
101 Yuankai,
supra
note 88 (highlighting the importance of delineating between public and
commercial activities in order to avoid diminishing the public’s fervor for the Olympic games).
102 5th Beijing 2008 Olympic Cultural Festival Concludes—The Official Website of the Beijing
2008 Olympic Games, http://en.beijing2008.cn/culture/festivals/ceremony/n214110895.shtml (last
visited Apr. 19, 2008) (stating that the fifth festival was a gala event that “followed the mantra ‘One
[7:433 2008] Trademarks and the Beijing Olympics
451
role of the Olympics as a “social movement based upon sports and guided by certain
philosophical thoughts, i.e., Olympism.”103 The Manual describes the “central ideal”
of Olympism as “the harmonious development of man, and it tries to reach the goal
through sports. Olympism greatly enlarged the spiritual contents of sports.”104 In
addition to stressing the philosophical, human dignity goals of the Olympics,105 the
Manual places volunteering to assist in the hosting of the Olympics within Confucian
goals of social obligation. The Manual states:
China’s ancient educator and thinker, Confucius, believed “benevolence
and love” to be the top moral standards of “JUN ZI (a man of honor, a
righteous man, or a gentleman).” Confucius also held that one should fulfill
his obligations in society and the nature of these obligations were “to love
people,” i.e “benevolence.” One should have a heart of love and benevolence
in order to complete his social obligations. Confucius believed that, to some
extent, “righteousness” is in opposition to “profit.” The seeking of profit is
equal to unrighteousness. Confucius said “The man of honor seeks
righteousness, while the man of disgrace only cares for profit.”106
This socio-cultural overlay of human dignity and social benefit with regard to
the meaning of the Olympics and its related symbols is reflected in the basis for the
pledges of non-infringement businesses are making, which are described as promises
to “fulfill their social responsibility.”107 The cultural significance of the Olympic
Symbols suggests that, without an effort to invest non-Olympic Symbols marks with
a similar cultural significance, the strong support for their protection may remain
largely non-existent.
Brands undoubtedly carry messages beyond source designation and quality
characteristics. As Douglas Atkin recognizes, “Today a brand legitimizes the
consumer . . . . [Brands] have become so important as cultural representations that
people even brand them on their own body much as our predecessors tattooed
symbols of social status.”108 Jean Noel Kapferer similarly describes brands as
possessing a “personality” and “a culture.”109 Yet in order for such brands to be
World One Dream—I participate, I contribute, and I enjoy,’ which integrated sport with culture”);
Lin Qi,
Festival Primes Residents with Olympic Spirit
, CHINA DAILY, June 24, 2006,
available at
2006 WLNR 10967169 (describing the wide variety of cultural and sporting activities that were
scheduled for the 4th Beijing 2008 Olympic Cultural Festival).
103 MANUAL FOR BEIJING OLYMPIC VOLUNTEERS 39 (Beijing Olympic Games Volunteer Work
Coordination Group ed., 2008),
available at
http://en.beijing2008.cn/volunteers (follow “Manual For
Beijing Olympic Volunteers” hyperlinks).
104
Id.
at 40.
105
Id.
106
Id.
107 Yuankai,
Symbol of Protection
,
supra
note 88 (quoting Chen Jian, a researcher on the
Beijing Olympics).
108 DOUGLAS ATKIN, THE CULTING OF BRANDS: WHEN CUSTOMERS BECOME TRUE BELIEVERS
115 (2004).
109 JEAN-NOËL KAPFERER, THE STRATEGIC BRAND MANAGEMENT: NEW APPROACHES TO
CREATING AND EVALUATING BRAND EQUITY CREATING AND SUSTAINING BRAND EQUITY LONG TERM,
434 (Philip Gibbs trans., Free Press 3d ed. 2004) (1992);
see
also
Doris Estelle Long,
Is Fame All
There Is?: Beating Global Monopolists at Their Own Marketing Game,
40 GEO. WASH. INTL L. REV
[7:433 2008] The John Marshall Review of Intellectual Property Law 452
protected with the vigor bestowed upon the Olympic Symbols, brand owners must
develop brand cultures that are in keeping with present Chinese socialist ideals.
Without such cultural connections, it is highly likely that the improvements in
enforcement modalities represented by China’s present efforts to protect the Olympic
Symbols will be lost.110 The moment for turning opportunity into Olympic Gold for IP
enforcement is now. Such Gold can only be achieved, however, if the lessons of
China’s recent enforcement efforts in connection with the Olympic Symbols are taken
to heart. To secure Enforcement Gold, brand owners must continue to strive to
invest their brands with cultural meanings for China. More importantly, they must
align trademark protection with socialist goals, including the need to protect the
public from the harm counterfeit goods may pose.111 This harm may include
potential threats to health and safety, or even threats to the well-being of society
through the sale of false goods, which deny consumers the true value of their
purchase. Unless trademark owners work to educate Chinese consumers and
enforcement personnel about the cultural significance of their brands, on a socio-
cultural level, they may not enjoy the present enhanced enforcement efforts directed
to Olympic Symbols.
CONCLUSION
It is not unusual for countries to progress from a stage of imitation before
reaching a stage of economic development that prizes innovation.112 China is rapidly
approaching the stage where imitation culture should give way to a culture of
innovation, if its remarkable economic progress is to continue.113 Seen in the context
of China’s development pathway, the techniques and enforcement modalities which
(forthcoming 2008) (describing the emotional role that brands play in the marketplace) (copy on file
with author).
110
Compare
Yonchara,
supra
note 97, at 401 (stating that traditional Chinese culture view
copying as a hallow act),
with
China Fun
,
supra
note 85 (asserting that Olympic symbols carry a
cultural significant beyond there commercial importance).
111 An Qinghu,
Well-Known Marks & China’s System of Well Known Protection
, 95
TRADEMARK REP. 705, 720 (discussing trademark law as a method to guarantee the quality of their
goods and services and maintain the reputation of their trademarks, so as to protect the interest of
consumers, producers and operators, and to promote the development of the socialist market
economy.”); Yu,
supra
note 98, at 194 (arguing that United States must help China see that
intellectual property protection is in China’s interest by focusing on advantage to China such as it
ability to protect consumer safety).
112
See generally
Doris Estelle Long,
Innovation Culture and the Intellectual Property Divide
(copy on file with author) (working draft) [hereinafter Long,
Innovation Culture
].
See also
PAT
CHOATE, HOT PROPERTY: THE STEALING OF THE IDEAS IN AN AGE OF GLOBALIZATION (Knopf 2005)
(discussing innovation based on “theft” of others’ protected inventions as a development theory for
diverse countries); Hisamitsu Arai, Intellectual Property Policies for the Twenty-first Century: The
Japanese Experience in Wealth Creation (World Intellectual Property 2000) (discussing how Japan
used its patent system to facilitate its growth in the 20th Century).
113 Long,
Innovation Culture
,
supra
note 112 (contending that recent developments in China
indicate it has reached the point where stronger protection of intellectual property is required to
continue its transformation into a modern innovation culture); Yu,
supra
note 98, at 196–97
(arguing that increased integration into the global economy will likely lead to greater intellectual
property protection).
[7:433 2008] Trademarks and the Beijing Olympics
453
form part of China’s present efforts to protect the Olympic Symbols arguably
represent a critical step forward. Valuable lessons in enforcement techniques are
being learned, including the need to involve the public in such efforts. This
opportunity for increased dialogue and training regarding the critical role that
rationale IPR protection may play in China’s steady advance toward a culture of
innovation should not be lost. While cultural perceptions of the differences between
traditional, commercial marks and the Olympic Symbols may make any appreciable
“improvement” in IPR protection uncertain, IP owners who follow a rational
approach to protection and enforcement may well find that the benefits of their
efforts last long after the closing ceremonies in Beijing. In the glow of gold medal
competitions, the potential for converting the advances in protection for Olympic
Symbols into lasting benefits for all IP owners must not be wasted.
Article
Full-text available
Ambush marketing is an attempt by a company to obtain benefits from the popularity and reputation of a particular public event by attracting the attention of the event's visitors, while not investing in event sponsorship. This practice is commonly called 'stealing the effects of someone else's sponsorship'. Ambush marketing has become a global phenomenon in the past thirty years. As this topic has not been widely researched in domestic scientific literature, the aim of this paper is to present the causes, types and effects of the ambush marketing. Ambush marketing is mainly associated with major sporting events, which present a great marketing opportunity because of a large number of attendees, but many cases of it are not related to sports. This practice includes various activities that can significantly undermine the effects of the official event sponsors. However, one of the problems is that the law does not recognize the term 'ambush marketing', and most of its activities do not really violate the law, but represent the free market competition.
Symbol Regulations hyperlink; then follow " Section 5—Sydney 2000 Olympic Licensing " ) (noting that approximately 100 licensees generated licensing revenues in excess of fifty-two million U.S. dollars for the 2000 Olympic games); see generally Licensed Products, supra note 5 (stating that
  • Olympic Comm
  • Sydney
costs to deter the infringements. " Symbol Regulations, supra note 20, art. 13, which is also mirrored in Chinese trademark law. Trademark Law (P.R.C.), supra note 22, art. 56. 60 Symbol Regulations, supra note 20, art. 13. 61 Cf. INT'L OLYMPIC COMM., SYDNEY 2000 MARKETING REPORT 89–90 (2000), available at http://www.olympic.org/uk/utilities/reports/index_uk.asp (follow " 2000—Marking Report Sydney 2000 " hyperlink; then follow " Section 5—Sydney 2000 Olympic Licensing " ) (noting that approximately 100 licensees generated licensing revenues in excess of fifty-two million U.S. dollars for the 2000 Olympic games); see generally Licensed Products, supra note 5 (stating that " [b]y 2008, it is estimated that 6,000–7,000 kinds of licensed products will be showcased at more than 10,000 licensed stores nationwide " ).
79 SURVEY REPORT, supra note 77 Going at 9; Fake Olympic Site 'Tricks Users
  • Your For
  • Wash Gold
  • Post
78 Numbers, supra note 76, at 16. 79 SURVEY REPORT, supra note 77, at 9. 80 See, e.g., Cindy Loose, Going for Your Gold, WASH. POST, Mar. 2, 2008, at 9; Fake Olympic Site 'Tricks Users,' BBC NEWS, Oct. 1, 2007, http://news.bbc.co.uk/2/hi/asia-pacific/7021608.stm; In Brief, S. CHINA MORNING POST, Oct. 1, 2007, at 5, available at 2007 WL 19154350.
85 China Fun, Protection of the Olympic Symbol: Beijing is Resolutelyshtml (last visited (describing how enforcement personnel fined a restaurant owner for copyright infringement because he used " the words 'wish the
84 Symbol Regulations, supra note 20, art. 12. 85 China Fun, Protection of the Olympic Symbol: Beijing is Resolutely, Sept. 26, 2007, http://www.china-fun.net/2008/preparation/200709261/1510291.shtml (last visited Apr. 18, 2007). 86 Id. 87 Id. 88 Tang Yuankai, Symbol of Protection, BEIJINGREVIEW.COM, Jan. 16, 2007, http://www.bjreview.com/quotes/txt/2007-01/16/content_54311.htm (describing how enforcement personnel fined a restaurant owner for copyright infringement because he used " the words 'wish the 2008 Beijing Olympics success' on [its] napkins " ).
stating that these are two of the luxury brands that were the focus of the first successful civil action against a landlord in China for providing a venue for counterfeiters
  • Joseph Simone Crackdown In China
99 Joseph Simone, In the Courts: Holding the Landlord Liable—New Tools for Counterfeit Crackdown in China, WIPO MAG., Nov. 2007, http://www.wipo.int/wipo_magazine/en/2007/06/ article_0006.html (stating that these are two of the luxury brands that were the focus of the first successful civil action against a landlord in China for providing a venue for counterfeiters).
highlighting the importance of delineating between public and commercial activities in order to avoid diminishing the public's fervor for the Olympic games) 102 5th Beijing 2008 Olympic Cultural Festival Concludes—The Official Website of the Beijing
101 Yuankai, supra note 88 (highlighting the importance of delineating between public and commercial activities in order to avoid diminishing the public's fervor for the Olympic games). 102 5th Beijing 2008 Olympic Cultural Festival Concludes—The Official Website of the Beijing 2008 Olympic Games, http://en.beijing2008.cn/culture/festivals/ceremony/n214110895.shtml (last visited Apr. 19, 2008) (stating that the fifth festival was a gala event that " followed the mantra 'One
describing the wide variety of cultural and sporting activities that were scheduled for the 4th Beijing 2008 Olympic Cultural Festival). 103 MANUAL FOR BEIJING OLYMPIC VOLUNTEERS 39 (Beijing Olympic Games Volunteer Work Coordination Group ed Manual For Beijing Olympic Volunteers " hyperlinks
  • Lin Qi
  • Festival Primes Residents With Olympic
  • China Spirit
  • Daily
Lin Qi, Festival Primes Residents with Olympic Spirit, CHINA DAILY, June 24, 2006, available at 2006 WLNR 10967169 (describing the wide variety of cultural and sporting activities that were scheduled for the 4th Beijing 2008 Olympic Cultural Festival). 103 MANUAL FOR BEIJING OLYMPIC VOLUNTEERS 39 (Beijing Olympic Games Volunteer Work Coordination Group ed., 2008), available at http://en.beijing2008.cn/volunteers (follow " Manual For Beijing Olympic Volunteers " hyperlinks).
Symbol of Protection, supra note 88 (quoting Chen Jian, a researcher on the Beijing Olympics)
  • Douglas Atkin
  • The Culting
  • Brands
  • When
  • Become
  • True
  • Jean-Noël
  • The Kapferer
  • Strategic
  • Management
104 Id. at 40. 105 Id. 106 Id. 107 Yuankai, Symbol of Protection, supra note 88 (quoting Chen Jian, a researcher on the Beijing Olympics). 108 DOUGLAS ATKIN, THE CULTING OF BRANDS: WHEN CUSTOMERS BECOME TRUE BELIEVERS 115 (2004). 109 JEAN-NOËL KAPFERER, THE STRATEGIC BRAND MANAGEMENT: NEW APPROACHES TO CREATING AND EVALUATING BRAND EQUITY CREATING AND SUSTAINING BRAND EQUITY LONG TERM,
); see also Doris Estelle Long, Is Fame All There Is?: Beating Global Monopolists at Their Own Marketing Game
  • Philip Gibbs
Philip Gibbs trans., Free Press 3d ed. 2004) (1992); see also Doris Estelle Long, Is Fame All There Is?: Beating Global Monopolists at Their Own Marketing Game, 40 GEO. WASH. INT'L L. REV
stating levels of piracy in China run from fifty to ninety-nine percent depending upon the genre
Priority Foreign Country Under Special 301 (Apr. 30, 1996), http://www.iipa.com/pressreleases/ 1996_Apr30_china_pressrelease.html (stating levels of piracy in China run from fifty to ninety-nine percent depending upon the genre).