Registration of Personal Names in the PRC

Written by Jordi Llopis

Continued from page 1

Although not explicitly included in China’s Trademark law when defining what may constitute a trademark, portraits of individuals are also registered as trademarks withrepparttar consent ofrepparttar 119174 given person.

What rights then, if any, exist underrepparttar 119175 trademark law in terms of protection of personal names?

When defining what a trademark is, most legal texts will apply to “any word, name, symbol, or device, or any combination used or intended to be used, in commerce to identify and distinguishrepparttar 119176 goods of one manufacturer or seller from goods manufactured or sold by others, and to indicaterepparttar 119177 source ofrepparttar 119178 goods”.

As discussed, in foreign countries, it is common for big celebrities to commercialize their portraits or names, or for companies to use famous names to brand products, such as Napoleon wine andrepparttar 119179 Churchill cigar, but this is not a common practice in China, especially when it comes torepparttar 119180 names of politicians – these names cannot be registered as trademarks.

A harmful effect for social morality? Article 10.8 establishes that ‘any sign which infringes uponrepparttar 119181 socialist morality or practice or of other harmful effects may not be used nor registered as a trademark’.

Making a connection between Lu Xun and alcohol can definitively be claimed as a negative social influence. However, it can be argued that grape-based wine isrepparttar 119182 only alcohol with proven health benefits and might be considered a health-conscience activity in China, as well as a fashionable trend and a more upper-class activity. The Chinese government is promoting grape-based wines as an alternative to grain-based alcohol, grain that could be used to feed China’s massive population.

Beatrix Potter, also a deceased famous writer, was registered as a Community Trademark in February 2004 byrepparttar 119183 publishing company which ownedrepparttar 119184 already expired copyrights for her works. But contrary torepparttar 119185 Lu Xun case,repparttar 119186 goods to be marketed do keep a relationship withrepparttar 119187 author’s reputation.

A possibility for Acquired Distinctiveness? Another discussion about personal names withinrepparttar 119188 context of this case is whether or not consumers could come to associaterepparttar 119189 deceased writer’s name withrepparttar 119190 said goods, and not really about registering personal names at all sincerepparttar 119191 product (wine) is not attached to any actual person seeking to use his or her personal name.

Article 11.3 providesrepparttar 119192 grounds to refuse registration, as opposed to Article 10.8 which prohibits both use and registration, thus leaving room forrepparttar 119193 use ofrepparttar 119194 mark in question. Specifically, Article 11.3 prohibitsrepparttar 119195 registration of ‘any sign which is devoid of any distinctive character’. Therefore,repparttar 119196 sign listed inrepparttar 119197 paragraph above may be registered as a trademark if it has acquired a distinctive character followingrepparttar 119198 use and is easy to distinguish.

This option would surely leave Lu Xun’s reputation vulnerable to tarnish, for ifrepparttar 119199 goods bearingrepparttar 119200 Lu Xun trademark were of a poor quality, consumers would say “Lu Xun wine” is so bad, eventually harmingrepparttar 119201 reputation of a name of such a great influence inrepparttar 119202 PRC. But ifrepparttar 119203 wine so branded started to be successful among consumers, it might –in practice- acquire distinctiveness through use. On this basis, it can be concluded that if if Lu Xun’s descendants were to operaterepparttar 119204 wine company and grow its reputation, a trademark registration might be successful.

An example of this isrepparttar 119205 Lu Xun Art School, founded in 1938 and enjoying an excellent reputation inrepparttar 119206 educational field. The registration of the鲁迅艺术学院 trademark can only serve as a way to honorrepparttar 119207 deceased author. Of course, that school is conducting a commercial activity on its own, like that of selling goods bearingrepparttar 119208 name, but contrary to Lu Xun’s descendants, Lu Xun is only part ofrepparttar 119209 overall trademark. Perhaps, a trademark like鲁迅孙子的酒公司 (Lu Xun’s Descendants’ Wine Co.) could be an alternative.

Thus, while personal names may be registered as trademarks in China, 1.There must be consent fromrepparttar 119210 person. 2.There must be a clear connection betweenrepparttar 119211 name applied andrepparttar 119212 company or product. 3.It must not infringerepparttar 119213 social morality or practice or of other harmful effects. 4.It must be distinctive.

3. Conclusion

If Lu Xun were alive today, he would have probably tried to benefit fromrepparttar 119214 protection conferred by a trademark registration. Could we still see today a famous writer being denied registration of his name because people have come to associate it with moral values? The Amended Trademark Law ofrepparttar 119215 PRC lacks any reference torepparttar 119216 registration of personal names or portraits, but if harm torepparttar 119217 social morality is not an issue, thenrepparttar 119218 law may not be that different from other legal systems.

From this study case, we can conclude that,

1.Presumably, as long asrepparttar 119219 personal name is not held in such moral, historical, cultural esteem in China to be considered owned by all of society, one should be able to register that name; 2.As suggested above, ifrepparttar 119220 descendant’s wine company were to gain a reputation over time, an eventual trademark registration might be successful; and 3.If as forrepparttar 119221 Lu Xun Art School,repparttar 119222 trademark application was changed to Lu Xun’s Descendants’ Wine Company,repparttar 119223 application might be successful.

Established in 1992 as one ofrepparttar 119224 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 119225 re-established Chinese legal profession. The firm has been recognized byrepparttar 119226 media andrepparttar 119227 Chinese Ministry of Justice as one ofrepparttar 119228 best law firms in China. For more information, please visitrepparttar 119229 firm’s website at

Jordi Llopis hails from Spain and works in the Beijing office of Lehman, Lee & Xu.

Claiming Sexual Harassment

Written by Maui Reyes

Continued from page 1

If, however, you have been sexually assaulted—such as been pressured to touch another’s genitals, breasts, or been pressured to have any kind of sexual activity—you must report your case torepparttar police. These actions are illegal in every state, andrepparttar 119173 harasser’s punishment must be processed accordingly byrepparttar 119174 court.

Sexual harassment is not a light issue. It should be taken very seriously, as it has numerous effects on its victims. The impact of sexual harassment varies from person to person, butrepparttar 119175 physical, emotional, and psychological stress they go through affects their everyday lives.

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