Weak enforcement means criminals can flout the law
Douglas Clark, IPR lawyer
Weak criminal enforcement remains the biggest challenge on intellectual property rights protection on the mainland, according to Douglas Clark, a lawyer who has made this his focus for 13 years.
He said sellers and manufacturers of counterfeit goods usually were fined when they were caught and did not face criminal prosecution unless the profit made was over 50,000 yuan.
'It's crazy,' said Mr Clark, an intellectual property partner of Lovells, whose clients include LVMH and Sony Computer. 'You can manufacture counterfeit goods, and if it is under a certain amount, you're OK.'
When calculating the value of the goods, prosecutors often use the price of the counterfeit products - not the price of the real goods. This makes it even harder to reach that 50,000-yuan benchmark.
He said some prosecutors also were slow to prosecute because they were corrupt, wanted to protect the people they knew, were concerned about possible job loss, or simply didn't see what was wrong with IPR infringement. Mr Clark advises his clients to either file a civil lawsuit or seek help from government agencies such as State Administration for Industry and Commerce, and Quality and Technical Supervision Bureau, which could inspect the factories and fine the owners.
They also could provide information to customs or police. Whether the enforcement bodies would take action depended on the nature of the products and the size of the case. They would be more likely to conduct a raid if it involved health-related products like baby powder, Mr Clark said.
The central government released an action plan on intellectual property on March 16. While it acknowledges the need for greater enforcement, Mr Clark said the real test would be to see whether local governments would implement the plan.
