Questions and Answers on the Hague Convention on the Civil Aspects of International Child Abduction

Written by Trent R. Wilcox, Esq.

Continued from page 1

Q:What are possible defenses to having a court orderrepparttar return of a child? A:There are several possible defenses that may apply to a particular case, althoughrepparttar 119176 different courts in various countries have interpretedrepparttar 119177 Hague Convention onrepparttar 119178 Civil Aspects of International Child Abduction somewhat differently. Generally speaking,repparttar 119179 Hague Convention allowsrepparttar 119180 following defenses: 1.the person, institution or other body havingrepparttar 119181 care ofrepparttar 119182 person ofrepparttar 119183 child was not actually exercisingrepparttar 119184 custody rights atrepparttar 119185 time of removal or retention, or had consented to or subsequently acquiesced inrepparttar 119186 removal or retention; 2.there is a grave risk that his or her return would exposerepparttar 119187 child to physical or psychological harm or otherwise placerepparttar 119188 child in an intolerable situation; 3.the judicial or administrative authority may also refuse to orderrepparttar 119189 return ofrepparttar 119190 child if it finds thatrepparttar 119191 child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views; 4.The return ofrepparttar 119192 child underrepparttar 119193 provisions of Article 12 may be refused if this would not be permitted byrepparttar 119194 fundamental principles ofrepparttar 119195 requested State relating torepparttar 119196 protection of human rights and fundamental freedoms.

Q:Are there timeframes that apply underrepparttar 119197 Hague Convention onrepparttar 119198 Civil Aspects of International Child Abduction?

A:A number of them, including:

1.Children who have attainedrepparttar 119199 age of 16 years are not covered byrepparttar 119200 Convention. 2.If a child has been wrongfully removed for less than one year,repparttar 119201 child’s removal is to be ordered forthwith underrepparttar 119202 Convention. 3.If a child has been wrongfully removed for more than one year,repparttar 119203 child should still be returned but an exception is allowed –a court may choose not to returnrepparttar 119204 child if there is evidence thatrepparttar 119205 child is settled in his/her new environment. 4.Courts should act quickly in such cases but if one has not reached a decision within six weeks fromrepparttar 119206 date proceedings commenced, an applicant orrepparttar 119207 Central Authority ofrepparttar 119208 requested State may officially request a reason forrepparttar 119209 delay. 5.The Convention only applies to wrongful removals/retentions occurring afterrepparttar 119210 treaty became effective betweenrepparttar 119211 involved countries. 6.Generally,repparttar 119212 Convention requires that countries act without delay in child abduction cases that fall within its parameters.

Phoenix office: 3030 N. Central Ave., Ste. 705 Phoenix, Arizona 85012 Ph: 602-631-9555 Fx: 602-631-4004

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Disclaimer: Wilcox & Wilcox, P.C. and its principles, agents and/or representatives, make no guarantees or representations as torepparttar 119213 accuracy or currency of any information herein contained. Providing this brochure does not establish an attorney-client relationship. To create such relationship, bothrepparttar 119214 attorney and potential client must sign a written fee agreement. This information is meant only as general information, may not apply to your case specifically and is not meant to be relied upon for purposes of taking legal action. You should contact an attorney in person for further and specific information. Our family law attorneys are licensed in Arizona only.

Copyright © Wilcox & Wilcox, P.C. 2004

Attorney Trent R. Wilcox admitted to practice in the Arizona state courts and federal district court and is a member of the Maricopa County, Arizona State and American Bar Associations and has worked closely with the National Center for Missing and Exploited Children to return abducted children to the custodial parent. He has assisted parents from various countries in cases brought under The Hague Convention.

Peter Rabbit and IP Protection of Fictional Characters in China

Written by Jordi Llopis and Grace Wang

Continued from page 1

Use ofrepparttar Mark. The trend is more favorable here (Article 7) becauserepparttar 119175 PRC’s Trademark Law allows a mark to be applied to an unlimited number of goods or services, independent ofrepparttar 119176 true activity ofrepparttar 119177 applicant and with no account taken ofrepparttar 119178 non-use of such a registered mark. Most legislation will contain provisions relating torepparttar 119179 effective use of a mark. It may sometimes be provided that an applicant or a holder should, by means of a statement or declaration, prove torepparttar 119180 competent authority thatrepparttar 119181 mark is being used (excluding token or ornamental use) atrepparttar 119182 time ofrepparttar 119183 application (as a condition for registration), at regular intervals after registration and atrepparttar 119184 time of renewal. Furthermore, most countries provide that any person may request, beforerepparttar 119185 court, that a given registered mark should be totally or partially invalidated and removed because of non-use.

The PRC's TM Law does provide that a use shall not cease for a period longer than three years, however unlike other legal texts (such as that ofrepparttar 119186 Community Trademark Regulation) it does not contain any provision requiring that use to be 'effective' in relation torepparttar 119187 goods and services registered under that TM, nor a requirement uponrepparttar 119188 user to submit proof – ifrepparttar 119189 applicant so requests – of use in case of opposition to a later trademark application. In short, PRC trademark law may only confer a rather limited protection, onrepparttar 119190 face of it, for so registered fictional characters.

Copyright vs. Design Patents

Cartoon characters such as those of Walt Disney or literary characters like those of Beatrix Potter are timelessly popular, such that they keep being regarded as what they indeed are: story tale characters. Drawings or cartoons (two-dimensional works) of literary works may also be protected independently of copyright protection as design patents, provided they meetrepparttar 119191 substantive requirements. According to Article 23 ofrepparttar 119192 PRC’S Patent Law, “Any design for which patent right may be granted must not be identical with and similar to any design which, beforerepparttar 119193 date of filing, has been publicly disclosed in publications inrepparttar 119194 country or abroad or has been publicly used inrepparttar 119195 country, and must not be in conflict with any prior right of any other person.” In that respect, it should be emphasized that a work which is original is not necessarily new, since a graphic adaptation of an already existing literary character (whether or not it has fallen intorepparttar 119196 public domain) may qualify for copyright protection (for example,repparttar 119197 literary characters Pinocchio or Cinderella adapted to cartoon form byrepparttar 119198 Walt Disney Company), but may fail to fulfillrepparttar 119199 novelty requirement. The same applies torepparttar 119200 drawing of a common creature (for example,repparttar 119201 cartoon character Bugs Bunny).

The Teletubbies (Tinky-Winky, Po, Dipsy, and Laa-Laa) are fictional characters whose copyright owner is Ragdoll Productions Ltd. – also a British company – from their creation in 1996. Unlikerepparttar 119202 situation with Peter Rabbit, Ragdoll Productions Ltd. is a legal entity that actually ownsrepparttar 119203 copyright, which means that after 50 years fromrepparttar 119204 first publication in 1996 those friendly characters will also enterrepparttar 119205 public domain. And again, these have also been subject to trademark registration inrepparttar 119206 European Union in 1999, and inrepparttar 119207 People’s Republic of China in 2000.

Oncerepparttar 119208 design patent elapses,repparttar 119209 industrial design will also fall inrepparttar 119210 public domain and may be used by anybody without authorization, unlessrepparttar 119211 owner ofrepparttar 119212 design can, forrepparttar 119213 same article, avail him/herself of a longer form of protection (copyright or registered mark).

Whereas in other countries copyright protection may be denied where a work is created withrepparttar 119214 intention of being exploited industrially and embodied in mass-produced articles, which is an inherent quality of works (drawings, dolls, puppets, robots, etc.) designed for merchandising,repparttar 119215 PRC’s Copyright Law does not observe this circumstance, ultimately allowing an overlap betweenrepparttar 119216 notions of artistic works and industrial designs, whererepparttar 119217 two forms of protection are generally not available cumulatively atrepparttar 119218 same time.

Once an artistic work such as a fictional character is incorporated into any industrial or handicraft item including packaging, graphic symbols, etc, it becomesrepparttar 119219 outward appearance of that product and becomes and industrial design with limited protection. And ifrepparttar 119220 copyrighted fictional character has been used for these purposes and has been made public as a result,repparttar 119221 Chinese patent law in its Article 24 concedes a small grace period of 6 months to claim priority, and after that period has elapsed it will become estate ofrepparttar 119222 art and will breakrepparttar 119223 novelty of that design, which ultimately makes it impossible forrepparttar 119224 copyright owner to wait untilrepparttar 119225 expiration of its copyright to then obtain a design patent.


All in all,repparttar 119226 legislation on copyright, trademarks and industrial designs may be relevant inrepparttar 119227 context ofrepparttar 119228 merchandising of fictional characters (asrepparttar 119229 Peter Rabbit case illustrates), in a desperate race to exclude competitors from using anything that may make goods look more attractive for consumers to purchase.

As discussed, design patents are likelyrepparttar 119230 best option available to seek longer protection for a fictional character, and although trademark protection may be renewed without limit, its scope is 1) just as limited or narrow as that ofrepparttar 119231 one conferred by design patents, and 2) even if respectively registered or granted, it may be left to a Judge to determine ifrepparttar 119232 trademark is distinctive enough to what all consumers simply regard as a fictional character. However, IP rights do have their own different purpose, and shall be protected according to whatrepparttar 119233 law says but not beyond it. Established in 1992 as one ofrepparttar 119234 first private law firms in China, Lehman, Lee & Xu employs a highly-experienced team of over 110 lawyers, patent and trademark agents representing both foreign and Chinese clients throughout China in a variety of enterprises. With branches in various Chinese cities including Beijing, Shanghai, Shenzhen and Hong Kong, Lehman, Lee & Xu is considered a leader ofrepparttar 119235 re-established Chinese legal profession. The firm has been recognized byrepparttar 119236 media andrepparttar 119237 Chinese Ministry of Justice as one ofrepparttar 119238 best law firms in China. For more information, please visitrepparttar 119239 firm’s website at

Jordi Llopis and Grace Wang are attorneys in the Beijing office of Lehman, Lee & Xu.

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