We all know that the enforcement of intellectual property protection in China is just not yet in place. You can see it everywhere in that country, from pirated DVDs found on most street corners to coffee shops with names that sound an awful lot like Starbucks, not to mention the large-scale "silk markets" selling top-grade counterfeit purses, watches and apparel in Shanghai and Beijing.
But to be fair, these "fake markets" have thrived largely on foreigners. The Shanghai Xiangyang market, which had US$60 million in annual sales before a crackdown in June 2006, claimed that 80 percent of its customers were Westerners.
Touring "fake markets" may be entertaining for the casual Western shopper, but the lack of IP protection really hurts when you are the one suffering infringement.
Battenfeld Extrusionstechnik GmbH in Bad Oeynhausen, Germany, is a recent victim in the news. It entered the Chinese market in 1996 by establishing joint venture subsidiary Battenfeld Chen Extrusion Systems Ltd. in Foshan, Guangdong province. Partner Chen Hsong was later phased out of the deal, and the company updated its name to Battenfeld Extrusion Systems Ltd. in 2006.
Battenfeld recently announced victory on an IP infringement case against three Guangdong subsidiaries of Hong Kong's Cosmos Machinery Co. Ltd. The case has come a long way from when Battenfeld filed it back in September 2003 at a local court in Foshan.
According to the verdict of the Dongguan Intermediate People's Court, dated November 8, 2007, the case was transferred from Foshan to Dongguan on November 30, 2004, and finally two hearings were held in April and June of 2007.
The copy of the verdict I'm referring to was supplied by Cosmos, who argued that Battenfeld's news release -- still available online at
here -- contradicts the court ruling and is misleading.
The issue at point is how many of the defendants were judged guilty. Battenfeld's release pointed at all three Cosmos subsidiaries. Cosmos said only one was found guilty, and that was Donghua Cosmos Machinery Ltd. But the discrepancy is easy to solve. The court verdict clearly maintained that only the Donghua subsidiary infringed on Battenfeld's intellectual property by making single-screw extruder model P0450.
Cosmos also said it has appealed the judgment to the Guangdong High People's Court, so the case is not yet final. That's true. It might be a little early for Battenfeld to throw a party. But, even this preliminary success is encouraging to Western investors as well as Chinese companies that own patents, technologies and brands.
And who knows? Maybe Battenfeld will be able to supply more solid evidence and secure bigger success in the litigation. But this is all still up in the air, and it's pointless for me to speculate. What I can tell you, though, is that protecting your own products is no easy task.
The Dongguan court overruled some of Battenfeld's evidence, including testimonies from two of Battenfeld's Chinese mold suppliers. In written testimony, the moldmakers said Cosmos asked them for quotes for molds, and that Cosmos' drawings were almost identical to Battenfeld's molds.
The court also rejected photographic evidence that was taken at the 2007 Chinaplas show in Guangzhou. The court documents said, "Although it says 'Cosmos Machinery' and 'DEKUMA Welltec' in the photos, there's no way to verify whether these exhibitors are the defendants in this case. Also, the plaintiff can't prove this is relevant to the commercial secrets in dispute."
Battenfeld did request the court to collect evidence from Chinaplas organizers, including Adsale Exhibition Services Ltd., the China Foreign Trade Center, the National Light Industry Association and the Guangdong Plastic Processing Industry Association. But the court overruled the request based on Chinese laws, the same court document said.
So really, it becomes a heavy burden on the victim's shoulders to collect evidence that's acceptable by the local legal system. For multinational companies that operate in different countries, it's additionally challenging.
It's not easy even for Chinese local companies to defend their rights in their own country. Injection press giant Haitian commented on that in a speech at a
Plastics News conference. In Haitian's headquarters city of Ningbo alone "there's another hundred companies that make machines the same as ours. Thirty of them use our logo to a certain extent," said Helmar Franz, Haitian International Holdings Ltd.'s executive director.
China also lacks an environment conducive to public opinion.
Plastics News is the only publication in China that has reported Battenfeld's litigation with Cosmos. The state-owned media may fear pressure from the top, and private publications have been known to make compromises to keep their advertisers.
But if such information is not delivered to the public, violators of IP laws will never need to worry about their corporate reputation and branding. That's not fair to customers and the general public who deserve to be made aware of these happenings.
Stay tuned. With independent and unbiased principles,
Plastics News will follow this case through.