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to sue competitors on a case by case basis.
The Supreme Court ruled in June that the
FDA approval was distinct from any potential
consumer confusion around ingredients. Toe Su
holds that this an example of IP colliding with
other legislation in a business critical case.
Ultimately companies need to map their IP
issues with their business priorities and broader
corporate engagement plans, and then identify
the key issues to focus on.
INTERNATIONAL CO-OPERATION
Global IP policymakers are currently focused on
inter-country and inter-agency co-operation. Toe
Su advises
companies
to be
particularly
heedful of
China’s IP
policies.
‘China has
recently
adopted a
revised trade
mark law, is
reviewing its copyright and unfair competition
systems and Chinese Customs is working with
the EU on a joint project covering over 20 ports
to seize and check for counterfeit goods. IP and
law enforcement attachés from several countries
are facilitating joint enforcement operations on
specific cases with Chinese authorities.’ This all
signals a much tougher and more collaborative
stance in-line with a greater focus on the digital
space. The Chinese have also released a new
online paper setting out their thinking on online
infringers of IP rights in China. ‘This is basically
figuring out how they deal with counterfeit
websites,’ Toe Su explains. ‘While many
counterfeit websites might have a life in the EU
or US, they will originate in China, so the PRC is
looking for input on how to tackle the problem.
This is a good opportunity for companies to feed
in their views, especially as the PRC is engaging in
a lot of bilateral dialogue with the EU and other
countries on IP issues generally.
The UK has an IP attaché in China to liaise with
the government and the authorities, but also
to act as a resource for British companies with
IP issues in, or originating from, China. France
also has an attaché, as does the US, Japan, and
others (see box-out). ‘There is a lot of informal
dialogue as well as formal dialogue,’ Toe Su
points out. ‘What can be really useful is to
inject the perspectives of companies outside
China into the debate on the ground. If you
are a European company you can try and input
directly with the Chinese government, but you
can also call up the French or UK IP attaché in
Beijing and they can help involve the Chinese
government in your practical problem.’ The
important thing to remember, says Toe Su, is to
think globally. Dealing directly with the Chinese
government may be daunting for companies
who don’t have a footprint there. ‘Don’t just
deal with a problem in China as a problem in
China,’ advises Toe Su. ‘Get help from the EU or
the US, because that’s where you as a company
may be most directly affected. The focused IP
attachés will have all the right contacts and
know the right avenues to pursue.’
‘DON’T JUST DEAL WITH A PROBLEM IN CHINA AS A
PROBLEM IN CHINA.GET HELP FROM THE EU OR THE
US, BECAUSE THAT’S WHERE YOU AS A COMPANY
MAY BE MOST DIRECTLY AFFECTED.’