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Course Details

(Live Lecture & Webinar) Passing Off and Unfair Competition
Douglas Clark, Partner & Solicitor Advocate, Tanner De Witt
Date: 24 May 2024 (Friday)
Time: 2:30pm - 5:45pm
Level: I (Intermediate)
For delegates who have prior knowledge of the subject area
Language: English
Fee: HK$ 1,850
Accreditation: 3 CPD pts (Accredited by The Law Society of Hong Kong)
Ref: L24IP01
Venue: Live Lecture or Zoom Webinar
- Rm 2102, 21/F, Beautiful Group Tower,
77 Connaught Road Central, HK
- Online Webinar via Zoom
[View Map]
Presenter's Biography:

Doug is a widely respected litigator and arbitrator with over thirty years experience handling IP litigation and arbitration in East Asia as well as coordinating global cases.

Doug has handled the entire gamut of contentious IP cases including raiding factories in China (in the early part of his career); obtaining civil search and seizure (Anton Piller) orders and freezing (Mareva) injunctions; establishing new law in relation to anti-circumvention technologies; and, running complex multi-jurisdictional patent litigation.

Doug is a member of the HKIAC appointments committee. He has been appointed an arbitrator in 8 HKIAC IP related arbitrations and is on the Hong Kong International Arbitration Centre, Shanghai International Arbitration Centre, Shenzhen Court of International Arbitration and Word Intellectual Property Organisation panels of arbitrators. He is also a Deputy Chairman of the Hong Kong Inland Revenue Board of Review.

Doug, who is originally from Australia, studied on an exchange at high school in Kobe, Japan and at Fudan University, Shanghai. He speaks, reads and write, both Japanese and Chinese.

Doug began his career in IP in Hong Kong in 1993 with a Lovell White Durrant. In 2000, he moved to Shanghai where, in 2003, he established and was Managing Partner of that Lovells' Shanghai office while also serving in the firm's worldwide partnership council. From 2011 to 2019, Doug practiced as an intellectual property barrister in Hong Kong appearing as an advocate in all level of courts, including in the Hong Kong Court of Final Appeal. From 2020 to August 2022 he was global head of dispute resolution with IP boutique Rouse where he handled and supervised litigation in China and other countries.

Doug practiced for a year with Douglas Clark LLP a specialist IP litigation and arbitration boutique and appeared as a solicitor advocate for his firm and on instructions of other firms. He is now a partner at Tanner De Witt where he handles IP and general litigation and arbitration matters.

Doug was from 2016 to 2022 and again from 2023 will be an adjunct professor at the University of Hong Kong where he teaches a masters course in IP. He is the author numerous articles on IP and of four legal texts:
  • Patent Litigation in China
  • Hong Kong Intellectual Property
  • Civil Litigation in Hong Kong
  • Patent Law in Greater China (co-author)

 
Objective:

The copying or imitation of the products or services of others is big business. Sometimes the copying or imitation can be legitimate. Other times it is not. The law of passing off in Hong Kong and the Anti-Unfair Competition Law in the Mainland of China are designed to prevent others taking unfair advantage of others' reputation and goodwill, but the courts also strive to leave room for legitimate competition.

This seminar will focus on practical steps that can be taken to prevent competitors from free-riding on a company's valuable goodwill and consider just how "close to the wind" it is possible to sail in promoting goods and services. Recent Hong Kong and UK case law and the 2019 Anti-Unfair Competition Law and 2022 Supreme Court Interpretation will be discussed and considered.
 
Outline:

  1. Passing off vs Unfair Competition
  2. The law of passing off in Hong Kong
    • Goodwill
    • Misrepresentation
    • Damage
    • Common field of Activity necessary?
    • The Court of Final Appeal decision in Tsit Wing v TWG

  3. The Anti-Unfair Competition Law in Mainland China
    • Anti-Unfair Competition Law
    • The 2022 Supreme People's Court Interpretations
    • Examples of cases

  4. Similarities and differences between the laws
  5. Bringing a passing off claim in Hong Kong
    • Courts with jurisdiction
    • Pleading a case
    • Evidence to support a case
    • Summary Judgment
    • Interim and final relief

  6. Bringing an unfair competition action in China
    • Administrative complaint
    • Court Actions
    • Evidence
    • Procedures
    • Relief

  7. Cross border actions involving Hong Kong and China
  8. Case studies will be discussed during the presentation

 
Category: Intellectual Property
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