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

Written by Trent R. Wilcox, Esq.

Q:What isrepparttar Hague Convention?

A.The Hague Convention is a term used to cover a number of international treaties on different areas ofrepparttar 119176 law, ranging from commercial issues, legal procedures and money judgments to international child abduction and adoption. There are many Conventions, each covering a different topic and having its own title. This Q&A publication is concerned withrepparttar 119177 Hague Convention onrepparttar 119178 Civil Aspects of International Child Abduction, first created October 25, 1980 and since ratified byrepparttar 119179 U.S. and many, but not all, countries.

Q:What isrepparttar 119180 purpose ofrepparttar 119181 Hague Convention onrepparttar 119182 Civil Aspects of International Child Abduction?

A:The Hague Convention onrepparttar 119183 Civil Aspects of International Child Abduction is an attempt to deal with situations where a person has wrongfully taken a child(ren) from one country to another or keeps them in a country withoutrepparttar 119184 other parent’s permission or legal authority to do so. In other words, this Convention concerns wrongful removal/retention fromrepparttar 119185 child’s state of habitual residence (country of residence).

Q:What isrepparttar 119186 responsibility of each country that signedrepparttar 119187 Hague Convention onrepparttar 119188 Civil Aspects of International Child Abduction?

A:Each signatory torepparttar 119189 treaty agreed to set up a Central Authority to organize each case and act as a clearinghouse for international child abduction issues. For example,repparttar 119190 United States Department of Justice was designatedrepparttar 119191 U.S. Central Authority and, in turn, delegated much of that authority torepparttar 119192 National Center for Missing and Exploited Children (NCMEC). Some countries signed on torepparttar 119193 treaty but have not put much funding nor effort into implementation. Each government has a great deal of power over cases underrepparttar 119194 Hague Convention onrepparttar 119195 Civil Aspects of International Child Abduction once transferred within their borders. The referring country, of course, has no real authority at all and therefore one must rely onrepparttar 119196 individual government whererepparttar 119197 child has been taken to use that power. Often, a diligent attorney working on a child abduction case isrepparttar 119198 key to having a child returned.

Q:What resources are available torepparttar 119199 Central Authority?

A:Each country is very different inrepparttar 119200 resources they apply to Hague cases, ranging from almost nothing to highly sophisticated and coordinated systems. Inrepparttar 119201 U.S., for example,repparttar 119202 United States relies onrepparttar 119203 National Center for Missing and Exploited Children to coordinate efforts among volunteer attorneys throughoutrepparttar 119204 United States, Interpol,repparttar 119205 FBI and also local police where abducted children are found. In addition,repparttar 119206 National Center maintains contact withrepparttar 119207 requesting parent and their representatives.

Q:How does a case underrepparttar 119208 Hague Convention onrepparttar 119209 Civil Aspects of International Child Abduction proceed?

A.A party can go in one of at least two procedural directions to start a case. One,repparttar 119210 party may independently find and retain an attorney inrepparttar 119211 jurisdiction whererepparttar 119212 child is found. The other method is forrepparttar 119213 party from whomrepparttar 119214 child was wrongfully removed may make a direct application torepparttar 119215 Central Authority in eitherrepparttar 119216 child’s habitual country of residence orrepparttar 119217 country’s Central Authority in whichrepparttar 119218 child is found to seek assistance. The Central Authority then coordinates with an attorney or other proper entities inrepparttar 119219 proper jurisdiction. Following this,repparttar 119220 normal procedure is to haverepparttar 119221 attorney file paperwork withrepparttar 119222 local court requesting thatrepparttar 119223 court (1) order local law enforcement or another entity to pick uprepparttar 119224 child, (2) set a hearing, and (3) orderrepparttar 119225 child returned torepparttar 119226 proper custodian and country. Oncerepparttar 119227 child is secured,repparttar 119228 court holdsrepparttar 119229 hearing quickly thereafter to reviewrepparttar 119230 facts ofrepparttar 119231 case and decide whether returningrepparttar 119232 child is proper. It is not necessary forrepparttar 119233 parent from whomrepparttar 119234 child is abducted to attendrepparttar 119235 hearing but it is often more convincing for them to testify in person there. Additionally, it is nice for that parent to be present because courts, when warranted, will normally order an immediate return followingrepparttar 119236 hearing and it is often best forrepparttar 119237 parent to be there to comfortrepparttar 119238 child and accompanyrepparttar 119239 child home.

Q:How doesrepparttar 119240 Hague Convention onrepparttar 119241 Civil Aspects of International Child Abduction relate to custody?

A:The short answer is that it really does not relate to custody. One purpose ofrepparttar 119242 Convention is to simply return children to their state of habitual residence so that a court there with proper jurisdiction can makerepparttar 119243 appropriate orders regardingrepparttar 119244 child. The court inrepparttar 119245 jurisdiction that a party is asking to orderrepparttar 119246 return of a child is not making a custody decision at all; rather, it is just sendingrepparttar 119247 child back torepparttar 119248 child’s residence whererepparttar 119249 proper court can make further rulings. Following a child’s return, there is nothing inrepparttar 119250 Convention that preventsrepparttar 119251 proper court inrepparttar 119252 child’s state of habitual residence from thereafter giving one party orrepparttar 119253 other custody, visitation or even from allowing one party orrepparttar 119254 other to takerepparttar 119255 child out ofrepparttar 119256 jurisdiction again (albeit this time withrepparttar 119257 proper court permission). Note that if custody proceedings are occurring inrepparttar 119258 country to whichrepparttar 119259 child has been wrongfully removed/retained, those proceedings are to be put on hold until a decision underrepparttar 119260 Convention is made.

Peter Rabbit and IP Protection of Fictional Characters in China

Written by Jordi Llopis and Grace Wang


In late September of last year, Beijing’s No 1 Intermediate People’s Court heard a case involvingrepparttar Chinese Press using pictures of Beatrix Potter’s fictional character, Peter Rabbit, on books. The British company Frederick Warne Co. Ltd. alleged infringement upon their trademark of Peter Rabbit illustrations, which was registered in 1994 (a decision has not yet been reached inrepparttar 119175 case).

The rights attached to a fictional character can generally be referred to as “property rights”. As isrepparttar 119176 case with most property, those rights includerepparttar 119177 right to use a fictional character’s name, image, appearance, etc., to receiverepparttar 119178 benefits resulting thereof andrepparttar 119179 right to dispose of it. These rights are in principle owned byrepparttar 119180 creator of that character unless lawfully transferred, created inrepparttar 119181 course of his professional activity for his employer, commissioned to be created, or conferred onrepparttar 119182 creator’s descendants forrepparttar 119183 exploitation of his/her work.

The secondary exploitation of a fictional character’s essential features by its creator in relation to various goods and/or services to exploit consumers’ affinity with that character can be defined as character merchandising. This merchandising activity is very seldom conducted byrepparttar 119184 creator ofrepparttar 119185 fictional character, and thusrepparttar 119186 various property rights vesting inrepparttar 119187 character are subjected to contracts which authorize one or several interested third parties (the merchandisers) to userepparttar 119188 character. The main economic rights relevant torepparttar 119189 merchandising of characters arerepparttar 119190 rights of reproduction, adaptation and communication torepparttar 119191 public in any manner or form--books, for example.

Beatrix Potter was a pioneer inrepparttar 119192 secondary exploitation of literary works. The animal characters from books Peter Rabbit and Squirrel Nutkin were recreated and are still being recreated as still as soft toys or other articles for children. This merchandising successfully continues today, with a wider range of merchandise. On May 25th, 1919, Frederick Warne & Company Limited was registered. Althoughrepparttar 119193 imprint is still used by Penguin Books, Frederick Warne & Company Ltd really ceased to exist on December 31st, 1984.


The rights attached to a character may enjoy legal protection in a number of forms, either automatically (copyright), or following an act before a competent authority (for example, trademark or industrial design registration).


Copyright protection starts onrepparttar 119194 date of creation ofrepparttar 119195 work as expressed in a material form such as writings, drawings, etc. Contrary to industrial property rights such as trademarks or industrial designs, a work enjoying copyright protection is protected against all unauthorized uses, irrespective ofrepparttar 119196 goods or services covered by each use. Generally, no one may exercise economic or exploitation rights withoutrepparttar 119197 authorization ofrepparttar 119198 copyright owner. Needless to say, enforceability of such IP rights is not dependent upon effective registration or patent granting, although there are public registrars to this effect that provide evidence ofrepparttar 119199 date of creation of such works.

It is generally accepted that copyright must be recognized and protected at least throughoutrepparttar 119200 life ofrepparttar 119201 author. After his/her death, his/her work continues to be protected for a certain time. Under Article 21 of China’s Copyright Law, copyright protection extends throughrepparttar 119202 lifetime ofrepparttar 119203 author and 50 years afterrepparttar 119204 author’s death. Article 21 later states in paragraph two that “whererepparttar 119205 copyright belongs to a legal entity…repparttar 119206 period shall be fifty years provided that any such work has not been published within fifty years afterrepparttar 119207 completion of its creation”. Upon expiry ofrepparttar 119208 term of protection,repparttar 119209 work falls intorepparttar 119210 public domain. It is no longer protected by copyright and can be used by anyone without authorization.

It should, however, be noted that, through other forms of legal protection (for example, trademark protection), some works may continue to be protected against unauthorized use. Because Beatrix Potter createdrepparttar 119211 fictional character of Peter Rabbit herself, she enjoyedrepparttar 119212 copyrights until her death in 1943. Afterwards,repparttar 119213 copyright was probably managed by her descendants unless previously transferred by an act of law thereafter forrepparttar 119214 following 50 years.

Copyright vs. Trademark (Effectiveness in its Use for Fictional Characters)

When does a fictional character become a trademark in a strict sense? A mark is a symbol which distinguishesrepparttar 119215 goods or services of one entity fromrepparttar 119216 goods or services of another entity, that is, it is intended to indicate who is responsible forrepparttar 119217 goods placed beforerepparttar 119218 public. There may be many makers or sellers ofrepparttar 119219 same goods, and they may all use different marks which all consist of pictorial devices, without any words at all. The consumers distinguish betweenrepparttar 119220 goods of competing traders solely by means of their marks onrepparttar 119221 basis of expected properties or a certain quality. When any consumer tries to purchase one of these books online, a notification comes up onrepparttar 119222 screen: “The Penguin Online bookshop isrepparttar 119223 recommended online shop from which to purchase Beatrix Potter titles”. This is a good instance ofrepparttar 119224 natural way trademarks work: Penguin Publishers isrepparttar 119225 industrial origin ofrepparttar 119226 books, andrepparttar 119227 little logo of a penguin appears in these goods to tell consumers which isrepparttar 119228 publishing company.

For that to be possible,repparttar 119229 marks must be clearly recognizable. In other words, marks must be distinctive in order to apply for registration, as referred to in Articles 9 and 11 ofrepparttar 119230 PRC’s Trademark Law. But then, how distinctive is a trademark consisting of a globally known fictional character first published and thus introduced torepparttar 119231 general public in 1902? Article 9 ofrepparttar 119232 Trademark Law sets forthrepparttar 119233 condition thatrepparttar 119234 applied trademark “shall not conflict with any other legal rights acquired earlier by others”. It could be argued that when a fictional character’s copyright expires and falls intorepparttar 119235 public domain, it forms part of that ‘conflicting’ legal art and rights, as it is a legal text (Copyright Law) which concedes this right upon citizens.

A second point onrepparttar 119236 effectiveness ofrepparttar 119237 PRC trademark law for fictional characters is that a trademark must be used inrepparttar 119238 same way it is registered and forrepparttar 119239 goods or services so elected, as set forth in Article 51 of PRC’s Trademark Law. It should be noted that, mainly inrepparttar 119240 case of cartoon strips and animated cartoons, copyright protects each different original pose adopted byrepparttar 119241 character. The same cannot be expected from a trademark, which, one can argue, makes it rather impossible for any trademark consisting of a fictional character of public domain to be distinctive at all.

In a further argument on this issue,repparttar 119242 PRC Trademark Law states in Article 1repparttar 119243 purposes of trademark registration such as “…pressing producers and sellers to guaranteerepparttar 119244 quality of goods and services, maintainingrepparttar 119245 repute of trademarks, safeguardingrepparttar 119246 interests of consumers…” However, neither a merchandising agency norrepparttar 119247 creator of a character will themselves be engaged inrepparttar 119248 manufacture or marketing of secondary products, and it will therefore be difficult for them to acquire trademark rights over a fictional character, as they will not themselves be dealing withrepparttar 119249 goods or services and be thus held liable for their quality as stated in Article 7 ofrepparttar 119250 Trademark Law which sets forthrepparttar 119251 trademark user’s liability forrepparttar 119252 quality of goods to which trademarks were applied. And even if a merchandising agency orrepparttar 119253 creator ofrepparttar 119254 character were involved in producing and selling at some levels, Article 40 sets uponrepparttar 119255 licensorrepparttar 119256 duty of supervisingrepparttar 119257 quality of such goods, andrepparttar 119258 obligation to indicate “the name ofrepparttar 119259 licensee andrepparttar 119260 origin ofrepparttar 119261 goods”. So here again, trademarks are meant to work as a link betweenrepparttar 119262 product and its industrial origin, which ultimately provides useful information torepparttar 119263 consumers.

Cont'd on page 2 ==> © 2005
Terms of Use