Speaking of strategy, Mike Tyson quipped that "Everybody has a plan until they get punched in the mouth." "That quote, it morphs life so much," he explained later on. "It's all about endurance." and "If you're good and your plan is working, somewhere during the duration of that, the outcome of that event you're involved in, you're going to get the wrath, the bad end of the stick. Let's see how you deal with it." The question is how you adapt your plan when you get punched in the mouth. Atfer all, a well-conceived strategy is necessary as it can help you put yourself together after the initial fear and freeze brought by the punch in the mouth and then adjust, survive and prevail in confrontations. Sun Tzu advised that "The skillful warriors in ancient times first made themselves invincible and then awaited the enemy's moment of vulnerability. Invincibility depends on oneself, but the enemy's vulnerability on himself. In all fighting, the direct methods may be used for joining battle but indirect methods will be needed to secure victory". According to Von Clausewitz, "To achieve victor, we must mass our forces at the hub of all power & movement. The enemy's 'center of gravity'". Drawing upon the wisdom of these master strategists, we would like to share some tips on developing a strategy for trademark enforcement in China.
1. Identify the trend and the challenges
The eminent expert on strategic planning, Professor Richard P. Rumelt has summarized: "A good strategy has an essential logical structure...the kernel: a diagnosis, a guiding policy, and coherent action". Diagnosis is the process to identify the trend and the challenges. It is advisable that the brand owners review the annual IP reports, which are compiled and issued by the PRC Supreme People's Court (SPC), the China National Intellectual Property Administration (CNIPA), the local people's courts and law enforcement authorities etc. around every April 26, the World Intellectual Property Day and/or other similar reports published by independent institutions etc. as the diagnosis process to have a general picture of the IP landscape in China and identify the trend in trademark enforcement by reviewing the statistics, most recent legislation and regulations, guiding cases, typical cases, reference cases, judicial interpretations, guiding opinions and judicial and enforcement policy etc. in the annual reports or other informative reports so as to keep up with the trend and adapt strategy.
On 27 July 2020, the Supreme People's Court (SPC) issued the Guiding Opinions concerning Strengthening Searches for Similar Cases to Unify the Application of Law (Guiding Opinions), effective on 31 July, 2020. The Guiding Opinions are intended to resolve inconsistencies in courts' judgments. The SPC affirms the practice of judges using rules derived from prior similar cases to fill in the gaps in legislation and judicial interpretations. The issuance and adoption of the Guiding Opinions are legal reforms which are bound to improve the trial system in China and better protect the interests of the parties in litigation. The law practitioners and brand owners need to master and hone the skills in conducting searches for similar cases as well as analyzing and distinguishing the similar cases searched by the courts and/ or submitted to the courts so as to best argue the cases before the courts in China.
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