The "Dancing Beijing" logo -- the emblem for the 2008 Beijing Olympic Games -- has triggered heated debate among officials and experts regarding who is the legal proprietor of its trademark and intellectual property rights. 

The Beijing Organizing Committee for the 2008 Olympic Games has so far registered the trademark for using Dancing Beijing, but has not applied for the layout design patent of the emblem.

But a domestic company has designed a similar emblem and applied for the designing patent, and moreover, rights to create products for monetary gain.

Thus, the committee is now in a dilemma: it may have to pay for the designing patent to the company over the coming five years, according to the Beijing News, a newly circulated newspaper.

"Generally, the previous Olympic Games had only applied for trademark registration, and not necessarily for patents. The committee has registered the trademark for Dancing Beijing both at home and abroad," said an official from the Beijing Organizing Committee, who preferred to remain anonymous.

The State Administration for Industry and Commerce and the State Intellectual Property Office may also disagree on the intellectual property rights of the emblem, he said.

Sources from the Trademark Department of State Administration for Industry and Commerce said under the current Trademark Law, the organizing committee can enjoy overall protection since it has applied for the trademark of Dancing Beijing. Others who use the emblem as a commodity trademark will violate the regulation.

"It is true that the Beijing Organizing Committee has not applied for patent protection for using the emblem, and other marks related to the 2008 Games. But it is incorrect and misleading to say that Dancing Beijing has been stealthily used by other companies under their patent registration," said Gong Baomin, an official from the Industrial Design Examination Department of State Intellectual Property Office, in a telephone interview with China Daily.

The name of the company is not available, because it is a convention to remain anonymous when a company is in the process of applying for a patent, according to Gong.

Gong said the Beijing Organizing Committee can apply for the overlapped protection of trademark and patent. The two are not conflicted for the committee. But if a company applies for patent protection, such protection may conflict with the committee's trademark protection because the company and the committee are different entities, said Gong.

The current situation for the Beijing Organizing Committee is not that difficult, if the committee can reverse it in a timely manner, as Dancing Beijing is not the only symbol of the 2008 Games, said Gong.

But he didn't give specific suggestions on how to reverse the situation.

Another official from the Industrial Design Examination Department of State Intellectual Property Office, who declined to be named, said the department has not received patent applications for Dancing Beijing or other similar designs. But some companies are now applying for patent protection for products which bear the words "2008" or "Olympic."

But their applications have become ineffective, as those companies have either given up or have not paid for the applications, said the official.

Shen Zhihe, a professor of Trademark Law with Renmin University of China, said Dancing Beijing is a special mark that is different from ordinary trademarks, enjoying wider and stronger state protection than commodity trademarks. Any similar marks should be banned.

Design patents must be connected with products, not the artistic design itself, said Shen.

The Beijing Organizing Committee is not a venture itself, so it may not apply for design patents out of business profits. However, this doesn't mean that others can apply for the so-called patent protection for similar designs. The committee can ask the company to withdraw patent applications or resort to the courts if necessary, said Shen.

(China Daily December 6, 2003)