China trade duties“Logic clearly dictates that the needs of the many outweigh the needs of the few.”  Spock, from the Wrath of Khan.

In most trade cases, a few domestic producers (or even one) ask the U.S. government to protect them by imposing extra duties or other trade barriers on imports. Usually, larger numbers of U.S. importers, downstream manufacturers or consumers wind up bearing these costs to protect the domestic producers, even though these costs are often arbitrary, excessive and unfair.

The U.S. International Trade Commission (ITC) just wrapped up its part in the latest trade case against imported solar cells and modules. Solar products from China were already hit with antidumping and countervailing (AD/CVD) duties in 2011 and 2014. This was not enough for the two largest remaining U.S. solar producers, Suniva, Inc. and SolarWorld Americas, Inc., who now have asked for a safeguard investigation to determine whether extra tariffs, quotas, and/or floor prices should be imposed on all imported solar cells and modules from any country. Opposing Suniva and SolarWorld is the rest of the $29 billion U.S. solar industry, mainly the U.S. solar energy developers, downstream U.S. solar panel installers and U.S. manufacturers of solar components, such as racking systems and inverters. On the one hand, Suniva and SolarWorld are hoping the safeguard relief measures will save hundreds of workers at their facilities. On the other hand, opponents argue these remedial measures would threaten many thousands of workers at other U.S. companies that have benefitted from the solar energy boom.

Though Suniva blames import competition for its bankrupt condition and its need for this safeguard action, the reality is that Suniva filed this case because it got whacked by the second solar trade case filed by SolarWorld. Previously, Suniva’s business model relied on producing solar cells in the United States that it then shipped to China where they were assembled into solar panels that were shipped back to Suniva’s U.S. customers.

The second solar trade case brought by SolarWorld in 2014, however, targeted any Chinese solar panels, regardless of where the solar cells were made. SolarWorld had complained that the first solar case in 2011 had an enormous loophole because it covered only Chinese solar panels made with Chinese solar cells. After that first case, Chinese module makers quickly switched to use cells from third-countries, mainly Taiwan, which caused SolarWorld to file its second case. Suniva in the second case claimed that any Chinese modules that used its American solar cells should be exempt from AD/CVD duties just because they were American, but the Department of Commerce (DOC) disagreed. The second round of solar duties disrupted Suniva’s supply chain and made using its Chinese module assemblers cost prohibitive. Suniva thus decided its last hope was to file a safeguard action that would artificially create a level playing field whereby all imported solar panels would be subject to the same high duties, quotas or floor prices.

The problem is how high do those trade barriers have to be for Suniva and SolarWorld to have any chance of surviving?

In this ITC safeguard investigation, Suniva and SolarWorld originally asked for extra tariffs to be imposed for four years, starting at 40 cents per watt on imported solar cells and a minimum price floor of 78 cents per watt for solar modules, as well as proposed import quotas to limit the total amount of imported cells (0.22 gigawatts) and modules (5.7 gigawatts). Solar industry analysts feared these measures would at least double the current cost of solar products, slash solar demand by two-thirds, and undermine billions of dollars of pending solar investment projects.

The ITC just released three different remedy packages that recommend far less than what Suniva and SolarWorld requested. The highest of the Commission proposals calls for extra tariffs of 30 to 35 percent on solar modules and cells that would then decrease certain percentage points each year for four years. Given the current forecasts that imported panels would cost around 32 cents per watt, analysts expect the highest Commission proposed remedies would add only an extra cost of 10 to 14 cents per watt.

Suniva and SolarWorld have expressed disappointment with the ITC recommendations and they have asked President Trump to impose stronger measures they claim are necessary to save the domestic U.S. solar manufacturing industry from extinction.

Unlike the more common AD/CVD cases in which the ITC and the DOC decide on whether to impose extra duties, in these rarely used safeguard investigations, the President has the ultimate authority to decide what, if any, remedial measures should be imposed. President Trump will have until January 12, 2018, to decide what remedial measures will be imposed that may affect $8.3 billion of imported solar cells and panels. He can follow any of the Commission’s recommendations or come up with his own remedial measures.

There have been few U.S. safeguard actions (and none since 2001). One reason why safeguard actions fell out of favor was because domestic industries found them less effective than the more commonly used AD/CVD actions. Because safeguard actions permit trade restrictions to be imposed on fairly traded imports, U.S. law specifically limits safeguard measures to a shorter period (usually four years or less) and to a maximum tariff rate of not more than 50% above existing rates.

Most importantly, the safeguard statute gives the President discretion to weigh the costs and benefits of imposing remedial measures. From 1975 to 2001, U.S. Presidents have declined to implement any trade restrictions in slightly more than half of the cases (19 of 40) in which they could have. In those cases where the President did impose trade barriers, they were usually much lighter than what the petitioning domestic industry sought. Past Presidents chose to impose no or much lighter safeguard remedies because they acknowledged the potentially harmful impact the proposed tariffs or quotas might have on downstream users and consumers, as well as the risk of other countries retaliating by imposing their own safeguard measures against U.S. exports to those countries.

But since President Trump has vowed to take strong action against imports, this solar safeguard action (along with another safeguard action on washing machines) is being watched closely as a test of whether President Trump’s actions will match his tough campaign rhetoric. If President Trump imposes remedial measures tougher than what the Commission recommends, we could see a flood of other safeguard petitions from other U.S. industries seeking a quick direct route to import relief from a sympathetic President.

In 2015-16, solar energy-related companies employed 374,000 people in the U.S., which is more than the combined number of workers in the coal, oil, and gas industries. Technological advances and competition have pushed solar installation costs down more the 60 percent since 2011 and solar electricity has in some places become cost competitive with electricity sourced from oil, coal, and gas. If President Trump imposes excessive safeguard remedies he could wipe out all progress solar energy has made in the United States. For the U.S. solar industry to live long and prosper President Trump will need to balance the needs of the many and not just consider the needs of the few.

Here is hoping the President makes a logical choice because a lot is going to be riding on it.

China employment lawyer

China employment law is technical and getting technicaler (yes, I made up that last word but you know what I mean). See China Employment Law: Local and Not So Simple. It is one of the most consistent problem areas for foreign companies doing business in China and it has become a massive growth area for our law firm. As we are always writing, China wants harmony and China is a communist country. Combine those two and you have a country that wants to keep its workers happy, especially as compared to your run of the mill foreign company that operates in China and competes with Chinese businesses.

All of this combines to mean that if you have employees in China or you are thinking of having employees in China it is of paramount importance you have at least some understanding of what is required of you as an employer in China. This book, for the low low price of less than $20 in paper form, gives that to you. It is also sold as a Kindle version for $9.99, but you really should spend the extra $10 to be able to have it in physical form in your office for you and anyone else to be able to consult easily whenever necessary. I am writing about this book again today because we just learned that it is now available at Barnes & Noble as well as at Amazon.

Disclaimer: This book is written by our lead China employment lawyer, Grace Yang and we get a cut of every sale.

Our typical attorney-client interaction on China employment laws usually goes something like this:

  1. Foreign employer company contacts one of the China lawyers at my firm because it terminated an employee and that employee has either sued or threatened to sue, oftentimes over a technical violation by the foreign employer.
  2. One of our China employment lawyers looks at the case and determines the foreign company employer violated Chinese law in the termination and the employee would almost certainly prevail in his or her claim. See China Employee Terminations: Don’t Get Lazy.
  3. We explain the above to the foreign company employer and we learn the company is violating China’s employment laws with all of its employees.
  4. The foreign company employer wants its violations excised.
  5. We then conduct an employer audit to determine what other employment problems need fixing. See China Employment Compliance and Audits: THE New Big Thing.
  6. The employer audit invariably generates a laundry list of problems that require fixing.
  7. We fix the employment law problems, one by one.

Foreign company employers have so many employment problems in China not just because China has started getting so tough with such problems and not just because there is probably but one employee in all of China who does not understand the leverage they hold over foreign employers –and that one employee probably will immediately find a lawyer who will tell them of their employee rights? The small to mid-sized foreign company typically goes into China with maybe one or two foreign employees and one or two Chinese employees, none of whom know anything about Chinese employment laws (on the local, regional or national level) and all of whom are — naturally — focused more on getting the business off the ground than on complying with the letter of the multiple sets of China employment laws. And anyway, at this point they are usually a tight-knit group of founding employees who view themselves as much as founders as they do employees and who all get along with each other and view their futures with the company as bright. As the company grows, little to nothing changes on the China employment compliance front, mostly because nobody realizes how important it is to make the changes and because even if they did, there is nobody in-house who knows how to do it. Plus, why spend money on complying with obscure employment laws when there has never been a problem necessitating that? So employment law compliance gets kicked down the road.

But then a problem arises and a China attorney at my firm gets called — usually by someone high up in the U.S. or the Europe or the Australia office as opposed to someone on the ground in China. The person who calls us is often the head of HR, the CFO or the CEO who is trying to find out what is going on with HR in China and is receiving only vague or nonsensical responses and is starting to worry.

All of the above is my long-winded way of saying foreign companies with employees in China need to get on top of their China employment situations and stay there. Employer audits are the way to go in most situations, but in the meantime and as a supplement, it is critical someone at your company understand China employment law basics. Someone at your company needs to know enough to be able to spot your company’s China employment law issues before they blow sky-high.

The China Employment Law Guide is the book for that and you really really really should buy it and put it on your shelf. And when I say put it on your shelf, I mean you should buy the softcover version (not the Kindle version) so you can literally put it on your shelf. Heck, get more than one copy and give it to everyone in your company who manages your employees or plays any role in their hiring or their firing. This book is meant to be used for background and for reference and as a decision-making guide.

Just a little bit about Grace Yang, its author. Grace grew up in Beijing and excelled at and graduated from China’s best law school there — Beijing University. She then came to the United States to attend the University of Washington law school where she again excelled and graduated. Grace is my firm’s lead China employment and labor lawyer and she is the lawyer at our firm to whom everyone else goes for China employment and labor law questions. Grace is a licensed U.S. lawyer (she is licensed in both Washington and New York) and she splits her time between Seattle and Beijing.

Anyway, did I tell you that you should buy the book? Of course I did and you should. And while on the subject of shameless plugs (hey, come on, how many of those have you seen in our more than a decade writing this blog?), I would be remiss if I did not also mention that Grace will be putting on a webinar on October 26 on Chinese Employment Law Landscape: Key Issues and Staying Compliant in the Local Market. This webinar is described as follows:

China’s employment laws are complicated and highly local. Foreign companies doing business in China face complex China labor and employment issues and questions every day – often without even realizing it. What works in the United States has very little in common with what works in China. Employment compliance has become one of the most important issues foreign companies face in China and it is the rare foreign company that gets it right. Employee disputes are becoming considerably more common and government enforcement is getting significantly more stringent. It virtually always costs less for your company to deal proactively with China employment law issues than to wait to address them only after they have come via a dispute. As such, it is imperative that you understand the framework of Chinese employment law and steps you can take to mitigate risk.

Please join Grace Yang as she helps you better understand the Chinese employment law landscape. She will focus on helping you recognize key China employment issues and give you guidance on how to solve real-life China employment law issues and problems.

WHAT YOU’LL LEARN

This webinar will cover the following:

  • The basics of China’s employment law rules
  • How to draft an employment agreement that works for your China locale
  • How to draft China employer rules and regulations (aka employee handbooks)
  • The other agreements you should consider for your China employees
  • Frequently contested issues, such as overtime, vacation days, commission payments, and leaves of absence
  • Employee terminations
  • HR audits
  • AND MUCH MORE!

YOUR CONFERENCE LEADER

Your conference leader for “Chinese Employment Law Landscape: Key Issues and Staying Compliant in the Local Market” is Grace Yang. Grace heads Harris Bricken’s China employment law practice and contributes a weekly column about China employment law issues for the multi-award winning China Law Blog. Grace received her B.A. degree in law from Peking University and her J.D. degree from the University of Washington School of Law. She represents both China employers and employees in their China employment law matters. Grace recently published a book entitled The China Employment Law Guide.

How can you miss it?

China intellectual property event
China intellectual property roadshows

I will be speaking on China intellectual property law at a couple of United States Patent and Trademark Office China Intellectual Property Roadshows in Michigan on Monday and Wednesday this week. I have spoken previously at USPTO roadshows and I am a massive fan of them. Present company excluded, they invariably have great speakers and they typically serve pretty good food and the whole thing is free. Top that!

Monday is Detroit (at Stroh’s River Place, 300 River Place Dr, Suite 5900) and will consist of the following topics:

  • Overview of Intellectual Property in China — Creating and Managing IP Portfolios
  • Brand Protection and Anti-Counterfeiting
  • Litigation involving the Defend Trade Secrets Act
  • Enforcing Intellectual Property Rights in the US
  • US-China Competition and Collaboration
  • USPTO Resources for China IP

For more information on that event, go here. Note though that this event has been sold out for quite some time.

Grand Rapids is not sold out and I have to say that event is my raison d’etre on this trip. I grew up in Kalamazoo, Michigan, which is about 45 minutes from Grand Rapids, which to me growing up was the big city (even dubbed by my friends and me as “The Big GR,” I kid you not). So being able to speak there is a special honor. The Grand Rapids roadshow will be this Wednesday at the L. William Seidman Center, 50 Front Ave. SW and it will consist of the same topics as the Detroit event, minus the Defend Trade Secrets Act. Go here for more information and to sign up.

See you there!

China CopyrightsOn Friday June 23, in collaboration with the National Copyright Administration of China, the United States Patent and Trademark Office will be putting on a one-day conference on legal protections for sports broadcasts. This event will take place at the Novotel Beijing Peace Hotel and run from 9:00 a.m. until 5:00 p.m. that day.

There is no charge to attend.

The leader of our China entertainment group, Mathew Alderson, will be speaking at this event. This event will explore the different ways countries protect the creative content of live events, with a particular focus on broadcasts of sporting events. As China continues to develop amendments to its Copyright Law, now is an opportune time for an in-depth discussion in this area.

The program will bring together US, Chinese, and European government officials, academic leaders, and industry representatives to discuss the importance of providing legal protection for sports broadcast programs, including the role of copyright protection, how sports broadcasts are currently protected in China, the United States, and the European Union, and international perspectives on the subject. Go here for more information on the event and here for more information on how to register or can just contact Ms. LIU Jia and provide her with the following registration information:

1. Your full name
2. Your organization
3. Your full position / title
4. Your email address

Hope to see you there.

China Entertainment LawThe leader of our China entertainment group, Mathew Alderson, will be speaking on a panel at Peking University School of Law on June 21st. The panel is entitled “Looking Beyond: Opportunities and Challenges.” It will be part of the 2nd Annual China-US Entertainment Law Conference, presented by Peking University School of Law, the US Patent and Trademark Office, Loyola Law School Los Angeles, and the Beijing Film Academy. Mathew’s panel will be one of four dealing with current issues in China film, TV, gaming and music. These issues include fair use of live game streaming, copyright protection of live broadcasts, music licensing issues, protection of celebrity names, risk management, and talent agency contract dispute resolution.

The titles of the other three panels are:

  • Year in Review — Recent Developments in the China-US Entertainment Industry
  • IP Issues in the China-US Film, TV, Music and Gaming Industries
  • Other Issues in the Film, TV, Music and Gaming Industries

This is a major event for which the organizers have assembled a great cast of Chinese and foreign experts. For further details see this flyer: US China Entertainment Law Conference.

Go to this link to register.

We hope to see you there.

Cleveland Cincinnati China EventMy Midwest roots run deep (Michigan, Illinois, Ohio, Indiana and Iowa, mostly), so I tend to seize on any excuse to return there. I will have that excuse in droves later this month as I will be speaking on China in three Midwest cities and serving as a “China legal expert” in a fourth.

Cleveland will be first on my Midwest tour and I will be speaking there on June 19 before the Greater Cleveland Chamber of Commerce. Go here to register. My speech is entitled How to Protect Your Business in China, and among other things, I will be discussing the following:

  • How to choose the right China partner
  • How to identify the IP assets you need to protect
  • How to structure your China deal
  • How to draft your China contracts to protect your company and your IP
  • What you should know about China trademarks, patents, copyrights, and licensing agreements
The schedule for this event will be as follows:
11:30 am Registration Starts
12:00 pm Lunch Starts
12:15 – 1: 30 pm Speaking (including a Q and A session at the end)
1: 30 pm – 2: 30 pm Networking Hour
Please come!

Then on June 20 and 21, I will be in Detroit, Michigan (a mere 2 hours by car from where I grew up) as a “legal expert” at Alibaba’s Gateway ’17. This event as being billed as part of Jack Ma’s making good on his promise to help create one million new jobs in America. See Alibaba Takes First Step To Fulfilling Jack Ma And President Trump’s ‘One Million U.S. Jobs’ Promise. My role at this event will be to talk to the media and to SME participants about the legal aspects of selling products to China, especially online. Spoiler Alert: I will mostly be focusing on the need to file for English language trademarks and patents and copyrights in China before selling products there and consider creating Chinese language names and filing for those too. This event has a ton of great speakers and a ton of great breakout sessions and if you can possibly attend, you should.

I then head to Chicago where on June 22 I will speak at the 13th Annual Product Liability Prevention Seminar. I have spoken at this conference many times and always enjoyed it because of the other speakers and the attendees, most of whom are involved with product manufacturing around the world. My talk will focus on the legal aspects of China manufacturing, emphasizing the role of contracts and IP.

Then it’s on to Cincinnati, where on June 23 I will be giving a lunchtime talk before the Greater Cincinnati Chinese Chamber of Commerce on how to use the law to protect your business in China. Go here to register. My talk will be followed by a Town Hall discussion moderated by my good friend Jeff Holtmeier, with whom I have worked on many a China deal, mostly involving health care and technology. Jeff is the real deal and I am very much looking forward to being on a panel with him. So again, please come!

Then it’s back to the salt mines….

China lawOn Monday, June 5, I will be speaking in Mexico City at a special event hosted by the Confederación de Cámaras Industriales de los Estados Unidos Mexicanos (CONCAMIN). Founded in 1918, CONCAMIN is the top organisation of its kind, representing all the industry sectors and economic activities of highest relevance to Mexico’s economic development. I will be joined in my talk by Adrián Cisneros Aguilar, who has written the following posts for China Law Blog on the relationship between Mexico and China:

Adrian is the founder/CEO of Chevaya (驰亚), an Asia-Pacific internationalisation services company. He has a Doctor of Laws from Shanghai Jiao Tong University and an LL.M. in International and Chinese Law from Wuhan University. Our own Mike Atkins will also be speaking at this event. Mike  heads up my law firm’s trademark prosecution and litigation practice and is the author of the world famous Seattle Trademark Lawyer Blog, which he started way way back in 2006. Mike splits his time between Mexico City and Seattle with occasional trips to China (mostly Beijing, Shanghai and Shenzhen) for client matters and speaking and teaching engagements. Most importantly, Mike typically heads up our big case cross-border tradmark and copyright litigation matters.

The main topic of our talk will be “China-NAFTA: doing business with the Middle Kingdom as a region,” something all the more relevant given the current importance of the relationship between Mexico, China and the United States. The goal of our talks is to help raise awareness about the need for companies in the NAFTA region to deal with each other effectively and efficiently and constructively. Much of our focus will be on inserting and integrating all three countries into company supply and value chains.

The event will start at 8:30 a.m. (Central Mexico Time) at the Auditorium of CONCAMIN’s headquarters, located at 133 Manuel María Contreras, 8th floor, Colonia Cuauhtémoc, Mexico City. At 9:00 I will be speaking on “What you Need to Know to Enter the Chinese Market” (and why it sometimes makes sense to use the United States as your launching pad for doing so). Adrian will follow with “Tips for Mexican Companies Wishing to Go International in Asia-Pacific”. And Mike will close by describing “Best Practices for Protecting your Brand and your Online Presence.” All three talks will be in both English and Spanish and all will be geared towards the private sector, particularly SMEs, though members of the government and of academia are also expected (and of course) welcome to attend. The event will be open to the public and anyone interested in understanding more about business in/with China and Asia-Pacific in general should attend. To attend, please confirm in advance to the following email:  apoyotecnico@concamin.mx. This event is free.

I love Mexico City and I am always looking for reasons to go there, especially as our Mexican client base continues to expand.

We Hope to see you there! ¡Espero verlos por allá!

El lunes 5 de junio, impartiré una conferencia, junto con Adrián Cisneros Aguilar (de Chevaya-quizás ya hayan visto sus posts en nuestro blog) y Mike Atkins, de nuestra firma, en un evento especial organizado por la Confederación de Cámaras Industriales de los Estados Unidos Mexicanos (CONCAMIN) en la Ciudad de México. Constituida en 1918, la CONCAMIN es el organismo cúpula de representación de los distintos sectores industriales, actividades económicas de alta trascendencia para el desarrollo económico de México.

El tema principal de la conferencia es: “China-TLCAN: Haciendo Negocios con el País del Centro como una Región” más relevante que nunca, dado el estado actual de la relación entre México, China y los Estados Unidos. La idea es ayudar a crear conciencia acerca de la necesidad de las empresas de la región TLCAN de tratar unas con otras de forma efectiva, para así tener un grado de sofisticación similar y entrar en una relación constructiva con China a lo largo de la región, nivelando la balanza en términos de tamaño, insertando a China en cadenas regionales de valor y volviendo a China el medio para insistir en soluciones conjuntas a problemas regionales y en una integración real.

El evento comenzará a las 8:30 a.m. (hora del Centro de México), en el Auditorio de la sede de la CONCAMIN, ubicado en Manuel María Contreras 133, 8vo piso, Colonia Cuauhtémoc, CDMX. A las 9:00 comenzará mi ponencia, intitulada “Consejos Legales para Penetrar el Mercado Estadounidense sin Salirse del Presupuesto y Usar Dicho Mercado como Trampolín al Mercado Chino.” Acto seguido, Adrián nos dará unos “Consejos para las Empresas Mexicanas que Desean Internacionalizarse Hacia Asia-Pacífico.” Mike cerrará describiendo las “Mejores Prácticas para Proteger su Marca y Presencia en Línea.”

Este evento se encuentra abierto al público en general, y está dirigido al sector privado mexicano, en particular, las PyMEs, si bien se espera que asistan representantes del gobierno y la academia nacional. El evento también será de interés para todo aquel interesado en comprender más acerca de cómo hacer negocios en/con China y Asia-Pacífico en general. En caso de querer asistir, favor de confirmar con anticipación al teléfono: +525551407837 con Guadalupe Escalante o al correo-e: apoyotecnico@concamin.mx.

En lo personal, estoy muy emocionado de hablar por primera vez en América Latina sobre temas relacionados con China, así como de escuchar lo que el empresariado mexicano tiene que decir acerca de China y los EE.UU. Por supuesto, esperamos que esta conferencia sea la primera de muchas.

 

¡Espero verlos por allá!

INTA 2017 Spain IP lawyersIf you are going to be in Barcelona during INTA 2017, please let us know via an email to firm@harrisbricken.com and we will do our utmost to have one of our lawyers meet up with you there. Four of our lawyers will be there throughout the conference, including two of our lawyers from our Barcelona office, Nadja Vietz and Joaquin Cabrera. In addition to our home-grown talent, Mike Atkins (world famous for his Seattle Trademark Lawyer Blog) and Alison Malsbury (who spoke at INTA last year on cannabis trademarks) will also be attending. 

Please don’t tell anyone, but our having a Barcelona office means we know all the good places to go, including those that will not be overwhelmed by INTA hordes. 
 
As much as our China lawyers, including me, wanted to go to Barcelona for INTA in the end, work prevailed and we will all be in China or the United States for the duration.

国际商标协会2017年年会将于 5月20日-24日在西班牙巴塞罗那举行。我们衷心希望通过本次年会结识更多国际业界人士并建立友好关系。如果您也会去巴塞罗那参加此次年会,欢迎发送电子邮件到firm@harrisbricken.com 与我们联系, 我们会尽全力安排我们的律师和您在巴塞罗那见面。除了我们巴塞罗那办公室的两位律师Nadja VietzJoaquin Cabrera之外,西雅图总部的Mike AtkinsAlison Malsbury也会前往参会。Mike是拥有多年执业经验的西雅图商标律师,常年在著名的西雅图商标律师博客上发表商标法相关文章。另一位律师Alison 则在去年的国际商标协会年会上就大麻行业的商标法律问题发表演讲。

另外,我们的巴塞罗那同事熟知当地景点和文化,他们能告诉您本地人喜欢的去处,避开过于拥挤的热门旅游景点,帮助您了解巴塞罗那独特的魅力所在。

尽管我们的中国法律师(包括我自己)都非常希望前往巴塞罗那参与这次年会,但由于实在无法从工作中抽身,我们还会继续在美国和中国为您提供服务。

Sollten Sie an INTA 2017 in Barcelona teilnehmen, geben Sie uns bitte per E-Mail an firm@harrisbricken.com Bescheid und wir würden uns freuen, ein Meeting mit einem unserer Anwälte organisieren zu können. Vier unserer Anwälte sind während der Konferenz in Barcelona, einschliesslich unsere “spanischen” Anwälte aus unserem Barcelona Büro, Nadja Vietz und Joaquin Cabrera. Zusätzlich zu unserem Barcelona Team werden Mike Atkins (bekannt für seinen Seattle Trademark Lawyer Blog) und Alison Malsbury (welche bei INTA im vergangenen Jahr über Cannabis Branding vortrug) teilnehmen.
Bitte tragen Sie dies nicht weiter, aber da wir unser lokales Team haben, kennen wir auch all die Geheimtipps an sehenswerten Plätzen, welche nicht mit INTA Teilnehmern überfüllt sind.
So sehr unsere China-Anwälte, mich inbegriffen, an INTA hätten teilnehmen wollen, ging die Arbeit am Ende vor und wir werden nicht teilnehmen, sondern in China oder den USA sein.
Si va a estar en Barcelona durante INTA 2017, por favor háganoslo saber a través de un correo electrónico a la siguiente dirección: firm@harrisbricken.com y haremos todo lo posible para que uno de nuestros abogados se pueda reunir con Vd. Cuatro de nuestros abogados estarán en Barcelona a lo largo de la conferencia, entre ellos dos de nuestros abogados de nuestra oficina de Barcelona, Nadja Vietz y Joaquín Cabrera. Además de nuestro talento de Barcelona, asistirán también Mike Atkins (famoso por su Seattle Trademark Lawyer Blog) y Alison Malsbury (que habló en INTA el año pasado sobre marcas de cannabis).
Por favor, no se lo digas a nadie, pero nuestro tener una oficina en Barcelona significa que conocemos todos los buenos lugares para ir, incluyendo aquellos que no serán superpoblados con participantes de INTA.
Aunque nuestros abogados del departamento chino, incluido yo, quisiéramos ir a Barcelona para INTA, el trabajo prevaleció al final y todos estaremos en China o los Estados Unidos por la duración.

China law and business eventOn Tuesday, April 18, I will be speaking on China IP at the Global Sources Summit in Hong Kong. This summit is designed to teach entrepreneurs and small businesses how to create and build an Amazon FBA (Fulfillment by Amazon) business. In 12 Business Conferences In China You Should Attend, Bay McLaughlin McLaughlin in Forbes Magazine describes it as follows:

This popular summit shows entrepreneurs and small businesses how to create and build an Amazon FBA (Fulfillment by Amazon) business. You’ll learn actionable strategies to grow your Amazon seller business and get insider tips on successful China importing. With over 3,000 booths this conference in huge! It will be held April 17-19, 2017, in Hong Kong.

I will be speaking Tuesday, April 18 on “How to Protect Your IP From China, Especially From Your Own Manufacturer,” focusing on the following:

  • How to choose the right China manufacturer
  • How to identify the IP assets you need to protect
  • How to structure your China manufacturing deal
  • How to draft your China manufacturing contracts to protect your IP
  • What you should know about trademarks, patents, copyrights, and licensing agreements
  • What to do when you’ve been copied

You can register for the Global Sources event here.

I will then cross the bay to speak in the middle of the afternoon on April 21 at Global From Asia’s Cross Border Summit, whose theme is “Grow Your Business in Asia.” This event too made Forbes Magazine’s top 12 for China list and Forbes justifies this choice as follows:

Held in Shenzhen, China, on 21-22 April, 2017, this event encourages international participation among industry leaders in cross border commerce between China and the rest of the world with content related to marketing, management, manufacturing, and technology. There are numerous roundtable discussions and networking sessions to encourage collaboration and idea generation. This event is hosted by Global From Asia, which also has a fantastic podcast about doing business in China.

My talk will be on “Global IP, In and Out of China: Protecting your brand via trademarks, inside China and globally.” You can register for the Cross Border Summit here.

Both events have a plethora of great speakers and I hope to see you at one or both of them.

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By now just about everyone knows about the Chinese-American doctor who was forcibly removed from a United Airlines airplane. To say this has been a PR mess for United Airlines would be an understatement. It has been a worldwide disaster. America is angry. China is outraged. The video has gone viral. Full disclosure: I started my legal career in Chicago at the law firm that back then (and I think still does) represent United Airlines and I have been a Platinum 1K (the highest tier) at United Airlines since as long as I can remember and I generally like the airline and I generally defend it.

What does this have to do with your China business? Everything.

Let me explain.

If you run any sort of business, you need to be prepared for major problems and you need to have a plan in place for dealing with those problems. Your plan must include how to prevent the problem from occurring, how to mitigate the problem if it does occur, and, sometimes most importantly, how to apologize for the problem when it does occur. If you do not have such a plan in place, your China business is at risk, and let me tell you, China poses major risks. Why is that? Because China has ~1.5 billion people and a large chunk of those people are on the internet and what happens in China or with China does not just stay in China, and vice-versa.

Let’s analyze what United did wrong and how you can do better. First off, United should have prevented the problem in the first place, and I am not talking about better algorithms that might have prevented the overbooking situation, though that certainly would not hurt. No, I am talking about how (based on what I have read) United was willing to offer only $800 to get passengers off the plane once it had become clear there was an overbooking situation. Why didn’t United just keep raising its bumping reward until it got voluntary takers? You can’t tell me that it would not have gotten more passengers off that plane had it kept raising its offer. I have to believe that it had it been willing to spend another $700 per passenger it would have had sufficient takers. United needed to get four passengers off that plane. Do you think paying another $2800 total will have killed them? What do you think this debacle is going to cost United in cancelled or never-booked flights? I’m just wildly guessing, but I’d say more like $2.8 million than $2800. Not to mention the inevitable lawsuits which will cost them another ~$2.8 million in attorneys’ fees and payouts and additional bad and lingering publicity. Does United not give enough authority/discretion to its employees to solve problems like these?

And now let’s talk about the “apology,” which I intentionally put in quotes because it really was more of an airline-speak statement.
China contingency planAccording to Psychology Today (which is what I always use when I am playing psychologist), you only get one chance to make an apology without sounding excessive. Therefore, you need to nail it with your one chance. And United Airlines most certainly did not. Let’s break down this apology.

  • It starts out saying this is an upsetting event to all of us here at United. Really? This is nearly the equivalent of saying, you having to witness your mother dying really makes me feel bad. Why is United focusing on how this has impacted United rather than on how it impacted its own passengers? Not smart.
  • I apologize for having to re-accommodate these customers. Really? I did not have sexual relations with that woman. When you apologize, you should personalize it and humanize it. This “apology” fails on all accounts. It does not constitute an apology for the way a passenger was dragged off a plane nor does not apologize for United having overbooked the flight. It is in the passive voice; rather than say I apologize for our having…., it makes it seem as though United had no choice but to do what it did. But United did have a choice as it could have paid more money to get passengers off. This is a classic non-apology. And what the heck does re-accommodate mean anyway? Is this airline-speak, because it sure as hell isn’t the way the normal people I know speak. Using industry buzzwords is a classic way to create distance and yet this is a time when United should be doing everything it can to reconnect with its customers.
  • “Our team is moving with a sense of urgency to work with the authorities and conduct our own detailed review of what happened. Your mother froze in the cargo hold, but don’t worry, we will move with a sense of urgency to work with others to review what happened. What the heck does this even mean? 1. Why say “sense of urgency” instead of just “urgency.” Another example of trying to create distance. Why talk about working with others? Why say “to review what happened” instead of to determine and report back on what happened. Most importantly, you are the CEO of United Airlines, have you not watched the video? Isn’t there enough there to say that the situation was handled poorly? Should he not at least have referred to what happened?

Now as a lawyer I know that an apology constitutes an admission that can be used against you in a court of law, but surely Munoz could have said something more clearly and more compelling than this. Munoz just really never takes responsibility for the problem. He never takes ownership of it. And don’t think apologies don’t matter. Many years ago, I spoke at a terrific lawyer conference on the cutting edge of law. I remember one of the speakers (I apologize because I do not remember his name) gave a great talk on crisis management and he used MLB pitchers Roger Clemens and Andy Petitte as the examples. Both Clemens and Petitte had been accused of using performance enhancing steroids. Clemens vigorously denied having done so and essentially accused those who said otherwise of being liars. Petitte pretty much immediately owned up to his mistake: I used them, I should not have, I am sorry, it will not happen again. How many baseball fans know Clemens used steroids and dislike him for having done so? Way more than with Petitte. I can hear this crisis management speaker saying “Munoz should have emulated Petitte here.”

Our China lawyers often have to deal with PR imbroglios. The below are some of the following:

1. A client makes a product that many consumers would not want others to know they use and it has its Chinese manufacturer ship this product direct to the consumer who orders it and when the order goes out an email from the Chinese manufacturer goes out saying that the product has been shipped. This email appears to come from our client and usually — of course — this email goes out only to the one person who ordered the one product. But one day it inadvertently went out to every single person who had ever ordered the product and it went out to all of these people in the “to” line so that everyone else could see everyone else’s email address. We and our client immediately went into overdrive and sent out an email apologizing for the problem, owning up to it, assuring that it would never happen again, and offering a substantial discount on any future orders within the next year. This apology email went to one person at a time and it went out within 15 hours of the incident. Our client got hundreds of responses back to its own email and almost all of those responses were appreciative of how quickly and decisively it had acted. They got a few emails from people saying that they would never buy from our client again, but that was it.

2. Many years ago, a company that made ultra-high end outdoor equipment at prices about double of any of its competitors came to us because its Chinese manufacturer had sold product that our client had rejected as defective — let this be a lesson as to why your China manufacturing contract should clearly provide exactly what happens to rejected product. Anyway, the defective product had found its way to the United States and many many buyers of it had come to our client to ask for a replacement per our client’s 100% replacement guarantee. Our client said that the defective products were not theirs and they were right as the defective products were actually counterfeits. Our client wanted us to research its legal obligations to replace the defective product. My response to them was as follows: Look, we can charge you a lot of money to legally support your decision not to replace the defective equipment, but might you not be better off paying to replace it and maintaining your great reputation than paying us to fight against replacement and perhaps irreparably harming your reputation. The client said “umm” and that they would get back to me on how to proceed. They chose to replace and I have always thought that was a wise decision.

I could go on and on with real life examples but it would be a lot more productive for you to create your own worse case scenarios for your own business. 

Back in the golden age of China blogging, Will Moss (now the Director of Reputation Management at Intel) had a terrific blog called ImageThief, that focused (at least sometimes) on China public relations. He did a post once on how foreign companies need to prepare beforehand for their China PR disasters and I saved the key lines from that post and I repeat them to you below now:

Be prepared to respond fast. Silence often equals guilt in the eyes of the public. Have an issues management kit that anticipates possible crisis scenarios in place beforehand. Don’t rely on guidance from overseas headquarters.

Pay close attention to the tone of public communications. Address concerns. State positions. Don’t condescend or talk down to Chinese audiences.

Get everybody on the same page. Limit public comments to the minimum number of spokespeople and throttle unauthorized communication.

Brief employees so they know what is expected of them and how to respond to media queries, ambushes, etc.

For consumer brands, ongoing monitoring of the Internet is a good idea. Internet scandals are often flashes-in-the-pan, but they can erupt into the mainstream. It’s better not to be caught by surprise.

Great advice isn’t it? And it applies worldwide.

What are your thoughts?