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  • Writer's pictureRémi Fouque

Is China the archetypal counterfeiter? Fight the clichés!

China, the archetypal counterfeiter. This cliché, deeply rooted in our European mentality, is easy to verify if we consult the figures on customs seizures provided each year by the European Commission. However, there are two key facts that challenge this stereotype. First, since the death of Mao Zedong and the rise to power of Deng Xiaoping, China has developed an extensive legal and regulatory arsenal to suppress intellectual property violations. Second, through the New Silk Road project ("一带一路"), the new habits of Chinese consumers (Aliexpress, etc.), and the development of a high-tech industry (Huawei, etc.), China itself is suffering from counterfeiting on its own territory. In a way, China gets a taste of its own medicine.

The PhD thesis I defended in December 2022, entitled "La lutte douanière contre la contrefaçon - Etude comparée sino-française" ("Customs action against counterfeiting - a comparative study between France and China"), set out to compare the French and Chinese legal systems in terms of the effectiveness of intellectual property protection, via a common denominator: customs action against counterfeiting, which can easily be described as convergent and integrated. However, major cultural differences remind us that the dialogue between East and West remains fraught with pitfalls.

If the Chinese-French customs fight against counterfeiting can be described as convergent, it is because the legal systems have adopted the same standards for the protection of intellectual property. A comparison of jurisprudence reveals the same imperatives to protect legal interests, but also, on the Chinese side, the health of consumers (the Chinese Supreme Court, for example, sentenced the perpetrators of cigarette smuggling that infringes a trademark to death). In this way, China and France have created a single legal framework for the customs seizure of counterfeit goods.

The term "integrated" also applies to this fight, as both countries are members of the main international bodies concerned (WIPO, WTO, WCO) and have ratified international conventions on intellectual property and customs law, such as the Madrid Agreement, the Berne Convention and the Convention on International Road Traffic. Genuine mutual cooperation in the fight against counterfeiting does not seem to be an illusion either, if we take into account the Sino-European Joint Customs Cooperation Committee, the cooperation agreements between France and China, the annual Franco-Chinese commissions, or the signing of protocols on the mutual recognition of geographical indications for foodstuffs.

But the vicissitudes of cultural particularisms continue to make dialogue a delicate matter. The cultural understanding of intellectual property in China is very different from the Western view: copying is seen as a badge of honor and respect for the original work, a vision inherited from Confucian values. If you don't register your trademark in sinograms with the Chinese authorities, ill-intentioned people can do it for you and exploit your brand with impunity: this was the nightmare experienced by the Castel Frères Group when it opposed the registration of the translation "卡撕特" by a third party. Furthermore, counterfeiting is a major part of the Chinese economy: entire cities, such as Yiwu, live off the profits generated by the trade, while the underworld channels capital into counterfeit factories in Guangdong and Fujian.

In spite of these facts, the establishment of a genuine Franco-Chinese-European co-decision, due to the convergent and integrated nature of the customs fight against the trade in counterfeit goods, gives us solid grounds for hope, far from fantasy and clichés; this is particularly true if we consider, for the future, the use of new technologies, such as blockchain, to be able to regulate or even curb this trade. As a famous Chinese proverb rightly reminds us, "风向转变时,有人筑墙,有人造风车" "When a new wind blows, some build walls, others build windmills.”

Photo by Li Yang on Unsplash


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