Wednesday, 6 May 2015

[Jian Xu] Pragmatic anti-counterfeiting by risk/benefit analysis in China

Despite countless reasons and varieties of counterfeiting, the infringer's activity boils down to only one thing: Risk/Benefit Analysis.

"What are the risks of continuing counterfeiting" vs. "What are the benefits of continuing counterfeiting".

The lawyer's job is to make the infringer's counterfeiting activity sufficiently risky that the counterfeiter has no incentive to continue, or that they switch to other businesses not affecting the lawyer’s clients.

How can the lawyers make the infringer's counterfeiting activity sufficiently risky?



1. The lawyer should make sure that the client has obtained strong IP rights in China. This is fundamental.

2. The lawyer can lobby the government bodies for administrative raids and fines against the infringers to disrupt their regular business.

3. The lawyer can sue the infringer to obtain successful court judgments. The lawyer will then let the court judgements hang over the infringer's head all the time by constantly pushing for enforcement of the judgements. Sometimes the infringer company's bank account can be frozen or even the owner's properties can even be confiscated during the enforcement of court judgments.

4. The lawyer can help the client organise regular surveillances (at least yearly) against the infringers to constantly reminding them that the right holders are watching and will take actions as before. It is important to note that surveillance is an essential element of successful enforcement.


It may not sound like a magic solution but it is a pragmatic approach towards anti-counterfeiting. The lawyer’s job is to provide a pragmatic solution to counterfeiting in China by exploring every legal means available to make counterfeiting a very risky and costly business for the infringer.

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