China, Intellectual Property

Own A Company Or IP In China? What Makes You So Sure?

If you have any reason to doubt your China registrations, you probably should have them checked out.

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At least once a year, my law firm has to tell a client that the company or the IP the client thought it had in China simply does not exist.

Years ago, my law firm was retained to help a U.S. company whose China general manager had stolen funds from its China subsidiary. Our investigation quickly revealed there was no China subsidiary. No China entity had ever been formed even though the China operations were manufacturing tens of millions of dollars of product a year, with around 100 “employees.” The general manager had lied about having formed a WFOE, no China taxes had ever been paid, and every “employee” had been working illegally.

A U.S. company once contacted us because its China joint venture company had started selling its product in the United States in competition with the U.S. company. We were tasked with determining whether the joint venture agreement gave the U.S. company the power to stop U.S. sales. The problem was that the Chinese language “joint venture agreement” was actually a consulting agreement and no joint venture had ever been formed.

An American company came to us looking to sue its former China distributor for manufacturing and selling the American company’s product in China, “in violation of our China trademark.” The American company told how its former distributor had registered the American company’s brand name for it in China, and it even had a trademark certificate to prove this. The trademark certificate turned out to be fake and the trademark had been registered in the name of a Chinese citizen (probably a relative of the distributor) who was now licensing it to the former distributor.

In the above examples, the American companies were fooled by people they thought they knew. Equally common is the situation where an American company pays someone it does not know to register a company or IP in China but nothing ever gets filed. There are even fake law firms — not even necessarily in China — that focus on collecting money from American companies to (not) register their IP or their company in China. These are the service company equivalents of the manufacturing companies that take money and never provide any product.

If you have any reason to doubt your China registrations, you probably should have them checked out.

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Dan Harris is a founding member of Harris Moure, an international law firm with lawyers in Seattle, Chicago, Beijing, and Qingdao. He is also a co-editor of the China Law Blog. You can reach him by email at firm@harrismoure.com.

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