GIVEN THE rise of intellectual property litigation in China, Baker & McKenzie has been forced to expand its practice to cope with market pressure and the demand for IP legal work.
Bolstering its IP practice in China, Baker & McKenzie has had to make six new appointments in the sector in order to ensure it can handle the full spectrum of IP matters in the region.
According to Tan Loke-Khoon — partner and head of the IP practice at Baker & McKenzie’s Hong Kong office — China is readily adopting rigorous measures to protect and enforce IP rights. “Since the early 1990s there has been an upward trend. Brand awareness is increasing, IP awareness is taking its hold on both the investors and the local population and there is a lot of activity around the new legislation,” he said.
Tan admitted that the reasons for this expansion are twofold. “It is both client-driven and economy-driven,” he said. According to Tan, you can never have enough resources and his multi-jurisdictional team bring a variety of skills to the table. This is important, he argued, as due to the nature of piracy, rights have to be secured or challenged immediately. “Clients want a quick response time,” he said.
He told Lawyers Weekly that preventing piracy is an important step in furthering China’s booming economy. He said that if shareholders are spending money on technology that is then stolen by IP pirates, then they are not going to want to invest. “Every investor would definitely want to phase-out the unwanted flattery of piracy, so there is a lot of need for protection,” he said.
Despite new legislation that is World Trade Organization-compliant and contemporary by international standards, IP enforcement in China is inconsistent and coupled with the topography of the country, IP rights are often difficult to protect. “It is difficult for local people to fully understand the ambit of certain laws and enforce them,” he said.
The second major problem Tan identified is the constellation of bureaucracy that exists in the Chinese IP space. He said that in China isn’t a one-stop-shop and it is sometimes difficult to identify where rights are being infringed and how to go about contacting the right authority. He called this a “doors and floors syndrome” and argued that it was sometimes difficult to navigate through China’s bureaucratic legal system. “In some other countries you might have the same problem, but in China it is more furious because the bureaucracies are not coordinated,” he said. “It is an uphill battle.”
Highlighting that the technology boom and internet development are key areas, he said, “IP is an open field. Right now we are trying to grapple with very esoteric and new issues”. For Tan, the trend these days is to think outside the box. “If you just look squarely at the tools you have they may be insufficient because of the vagaries of the system,” he said. “China is very open-minded these days.”
“People are waking up to IP and using it as a business tool to build their market share.” IP is no longer seen as an enemy which he said is old world is thinking but, rather, China is embracing change.