The Pictograph and a Pun: China’s Role as Rogue in Modern IP

By examining two early legal cases featuring the alleged counterfeiting of Xiangmao Honey Soap, this talk shows how the Chinese language and linguistic practices in Chinese commercial culture often stymied Western manufacturers and import companies’ attempts to pursue and prosecute suspected Chinese copycats. Xiangmao soap was featured in the first ever trademark litigation trial in China held in 1889. In that trial, it became evident that the emerging global trademark regime was premised on an Orientalist understanding of the Chinese character as ideograph. A second case in 1919 that also featured the alleged counterfeiting of the Xiangmao brand then reveals how the homophonic nature of Chinese and the issue of dialect were often the basis of wordplay and punning in Chinese trademarks, and that international trademark law was unable to accommodate these practices. The key legal premise that an offending trademark rested on its function to deceive the public prevented the system from recognizing (and thus, successfully prosecuting) marks that while likely to have been emulative, turned precisely on a knowing audience, willing to purchase the “counterfeit” because of the witty pun or wordplay at work. Both bring to the fore how the emerging trademark regime was premised on romance languages and failed to appreciate the complexity of both the Chinese language and the nature of the Chinese consumer market. Hardly marks that purposefully deceived in acts of “passing off,” so-called “spurious” marks aided (and arguably abetted) knowledgeable and appreciative consumers in their wily acts of consumption and were part of a larger market of rogue knock-offs in China that eluded the emerging trademark regime in the early twentieth-century and that continue to elude the global IP today.