The Analysis Of "Shanzhai" Phenomenon From Intellectual Property Right Perspective

Shanzhai refers to Chinese imitation and pirated brands and goods, particularlyelectronics. The use of “Shanzhai” has become popular in the public with theoutstanding sale performance of Shanzhai cell phones since2008. After then, lots ofShanzhai products have been made by unregistered small factories in Guangdongprovince and rapidly extended to all aspects of consumer good market. What is thereason for vitality of Shanzhai products? Why do those products occupy a largemarket share in a very short period of time? Under intellectual property law which isprimarily created by administration to promote innovation, owners are granted certainexclusive rights to benefit from their creations, but the majority of those Shanzhaiproducts somewhat infringe the IP owners’ rights. Is there a possibility to reconcilethe contradiction between IP protection and Shanzhai products? Do Shanzhai productsinvolve in IP issues? Are they legal or not? What attitude should take when we treatShanzhai products? In this thesis, author is trying to answer the above questions andfind a way to solve those problems. The construction of this thesis has been dividedinto four sections:First section: An overview of the Shanzhai phenomenon. In this section, authordefines the word of Shanzhai at the very beginning and then classifies Shanzhaiphenomenon into Shanzhai product and Shanzhai culture by its differentperformances. The upper definition of Shanzhai product is frequently used in industryand market area to represent piracy or infringing goods, and latter is specially used inliterature and culture area to describe a social phenomenon. At the end of this section,author analyzes why Shanzhai phenomenon is so vital in aspects of economy, societyand culture.Second section: Shanzhai product and copyright law. Shanzhai product alwayshas a close relationship with copyright law, for instance, author demonstrates thedifferent legal status of Shanzhai architectural works, Shanzhai software and Shanzhaiaudio-visual works in copyright law. This section focuses on analyzing the connectionbetween parody and infringement under copyright law which are still controversial intheoretical circle and giving recommendations about application of parody works by fair use under copyright law.Third section: Shanzhai product and trademark law. This section discusses thethree specific forms of Shanzhai product under trademark law and then lists thecriteria of infringement. When judge the infringement of trademark, we shouldconsider the range of protection of trademark law, similarity between trademarks andwhether those two trademarks cause confusion in consumers. Finally, author pointsout industries should create their original brands and gradually enhance brand valueand that is the only way for industries to be survived and developed under thetrademark law in the future.Fourth section: Shanzhai product and patent law. Patent law involvesmulti-stakeholders’ interests and has a great impact on the economic and socialdevelopment. That’s why patent law plays a leading role in regulating Shanzhaiproduct. In the first place, author analyzes the forms and status of Shanzhai productunder the patent law and defines the criteria of infringements in inventions, utilitymodels and designs. Then, based on analyses, author brings forward the method toregulate Shanzhai product and establish a healthy market order. Combined withpowers of government, industries, businessmen and consumers, we should prohibitthe infringements in market and protect the part of creation of Shanzhai product inorder to regulate these factories return the correct way.