IPR in Tourism Industry in China
By China IPR SME Helpdesk
代购、出境游这些词汇越来越多地出现在了中国大众的日常生活中，出国旅行已经不再是一件遥不可及的事。随着人民生活水平的提高和娱乐观念的转变，中国也逐渐成为了目前世界上旅游业增长最快的大市场。尤其是火爆的欧洲游路线更是给欧洲中小企业带去了无限商机。而中国高端客户对私人订制游等旅游创意和服务的追求更是开拓了这片市场。但是根据中国法律法规规定，希望参与中国旅游市场的外国企业需要先向中国国家旅游局提出申请，目前也只有少数企业被准许经营出境游。同时，中小企业还需要注意保护自身知识产权，，那么在这方面，有哪些需要特别注意的呢？
第一需要注意的自然是品牌形象——这既包括企业自身品牌，也包括旅游目的地的品牌形象。我们建议中小企业及早在中国注册商标以保护自身合法权益和品牌，因为一些恶意注册者“盗用”注册企业商标可能会给您带来不必要的麻烦。第二步就需要用中文名称注册您的品牌，因为如果没有规范中文品牌名称，那么本土消费者可能会用音译汉字来称呼您的企业，而这些汉字可能并不能很好地传达企业内涵。
随着互联网越来越强大、年轻用户越来越多，旅游业的一大客户来源是从网上获得的。我们非常建议企业主在中国注册Internet域名，因为注册中文域名可以有效防止他人使用该公司的名称或品牌名称作为其网站名称。与避免他人恶意抢注企业名称类似，注册企业域名也可以防止他人恶意抢注域名，避免受到高价域名的要挟。
进入一个新的市场，不仅是商机的争夺战，更是对自身企业的保卫战。合理合法采取行动保护自身权益是每一个进入中国旅游市场的企业经营者需要学习的重要功课。
According to United Nations World Tourism Organization, China is the fastest growing tourism source market in the world, as Chinese middle class is getting more affluent and it is increasingly able to afford traveling abroad. At the same time, China’s domestic tourism market is also growing at a fast pace, boasting 10% average annual growth rate. Furthermore, as Chinese Government is committed to developing the tourism sector, plenty of business opportunities can arise for the European SMEs.
However, there are some significant restrictions for foreign-invested companies wishing to engage in Chinese ‘outbound’ tourism market, as all foreign-invested entities need to apply for a special license with the China National Tourism Administration. The application process is lengthy and currently only few foreign-invested companies are allowed to operate on China’s outbound tourism market.
At the same time, according to the EU SME Centre there are also some interesting opportunities for European SMEs in the inbound tourism market, “where expats, foreign visitors and high-end segment of the Chinese market have a demand for creative and service-oriented packages”.
SMEs engaged in tourism need to pay special attention to protecting their intellectual property rights because IP infringements are still relatively common in China. IP rights are a key factor for business success and neglecting to register them in China could easily end SMEs’ business endeavor in the country. Thus, a robust IPR strategy is needed when entering the promising market of China.
Brand Protection – Cornerstone of IP Protection in Tourism Sector
Branding is crucial for tourism sector as it allows companies to differentiate themselves from the rest, creating a niche market and an individual appeal that will translate into more tourist arrivals. In tourism sector ‘destination branding’ is equally important to company branding. Destination branding often relies on a logo and tagline, examples being the Swiss resort St. Moritz using the tagline ‘Top of the World’ or China National Tourist Offices campaign ‘China like Never Before’.
SMEs are strongly advised to register their logo and tagline as a trade mark in China to protect their brand because IP rights are territorial and European trade marks do not enjoy automatic protection in China.
China follows the ‘first-to-file’ system, meaning the first person to register a trade mark owns that mark. It is particularly important for the SMEs to register trade mark in China because trade mark piracy due to ‘bad faith’ registration is a serious problem. ‘Bad faith’ registration means that a third party, not owning the trade mark, registers European SME’s trade mark, thereby preventing the legitimate owner from registering it. These unscrupulous companies normally try to resell the trade mark to its owner at an inflated price.
When registering a trade mark in China, SMEs should bear in mind that trade mark registration classes (according to Nice Classification) are further divided into sub-classes in China. It is important to register the trade mark for the correct class and subclasses. If sub-classes are not designated in the application, the China Trade Mark Office (CTMO) examiner will decide which subclasses registration the applicant will receive which might not be the most desired one for the applicant. Furthermore, if an SME forgets to register in all of the relevant subclasses, unscrupulous companies may register the SME’s trade mark in these subclasses themselves.
Don’t Forget to Protect your Brand Also in Chinese Language
As the registration of a trade mark in original Roman characters does not automatically protect the trade mark against the use or registration of the same or similar trade mark written in Chinese characters, it is highly advisable to additionally register a version of your trade mark in Chinese characters also. Furthermore, if there is no existing name for SME’s brand in Chinese, it is possible that one will be adopted by local consumers either by way of translation or by transliteration and not necessarily with the right connotations or image that the SME would wish to convey.
As Chinese language has its unique characteristics, therefore, SMEs’ local equivalent trade mark should be carefully developed with the help and guidance of trade mark, marketing and PR experts, as well as native speakers and translators.
Consider Also Protecting your Internet Domain Name
Most companies engaged in tourism rely on websites to attract customers and thus protecting online domain name is of utmost importance for SMEs. It is advisable to register Internet domain names in China because a registered Chinese domain name will prevent others from using that company name or brand name as their website name. Internet domain name registration is also important because problems like ‘cybersquatting’ still persist in China. Cybersquatting means that a third party registers a domain name that is identical to European company’s product or trade mark name with the purpose of selling domain names back to the rightful owner at a premium price.
Internet domain names can be registered with the China Internet Network Information Centre (CNNIC) and this should be done as soon as the company envisages doing business in relation to China because Internet domain name registration also functions under the ‘first-to-file’ system. Internet domain name registration process takes a few weeks and currently costs €50-€100 per year, much cheaper than having to solve domain name disputes.
It is advisable to monitor similar domain names and protect your domain name in case of confusion or cybersquatting, as registered Chinese domain names are often the key to business growth locally. Thus cybersquatting and other online IP infringements can seriously hurt SMEs’ business.
Always Enforce your Rights
Entering a new market and protecting IP also means being ready to enforce or defend these rights in order to ensure that business objectives are met. Therefore budget planning for enforcement is the key to a successful business strategy. When European SMEs identify an infringement, they should actively enforce their rights in China through various avenues available. If SMEs manage to build a reputation for ‘being litigious’ then unscrupulous companies will be less likely to infringe their rights in future.
There are 3 main enforcement options in China: administrative actions, civil litigation and criminal sanctions. Administrative actions are normally a fast and cost-effective way of dealing with IP infringements and are thus a viable option, particularly for SMEs facing budget constraints.
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