As mentioned above, in our work, we will mainly base ourselves on the theory of institu-tions as well as the sociology of organizainstitu-tions. It is therefore necessary to analyze the different existing institutions and then to question and understand their roles in the fight against counter-feiting.
Before that, let us first discuss the different terms and concepts at stake, distinguishing institutions from organizations. It is easy to conflate the concepts and attribute a common sense to them, so we will identify distinct characteristics so that we can better understand and use them later. We shall therefore review the authors and concepts related to trademarks and counterfei-ting, and then apply the theories of Emile Durkheim and Mary Douglas. Finally, we will see how these two domains interact to produce a new reading of the concepts.
After that, we will scrutinize the Taiwanese and Hong Kong institutions through this ana-lytics framework. We will examine in detail their government, juridical structure, IPR enforce-ment, and general organization with respect to the matter.
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3.1. Reviewing the conceptual framework 3.1.1. trademark counterfeits theories
In the case of trademarks and their copies, publications on the subject have highlighted that terms have malleable definitions. Therefore, we offer a summary table of our key concepts and their definitions to better highlight the terms that interest us here. We have chosen the dis-tinctions of Lai and Zaichkowsky, completed by Cordell et al, as they allow a simple, effective, and comprehensive vocabulary for the large category of counterfeiting. We can then distinguish counterfeiting, piracy, imitation of brands, and finally what they rightly qualify as gray zone. We fully agree that counterfeiting is actually a rather generic term that deserves clarification from the start.
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Table 1 IPR Classification Source: definitions from WIPO
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Table 2
Overview of the counterfeit concepts
Source: from Lai and Zaichkowsky and Cordell and al.
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Then, within the domain of counterfeit we will adopt the distinctions of WIPO and the definitions presented above for our focus on trademarks.
We will therefore assert that the infringement of a trademark is in fact a direct copy, often of inferior quality, of an original brand product which is distinguished in a precise manner and protected by intellectual property. This copy is often extremely similar to the original and also often reproduces the label and packaging identically. The resellers of said product intend to de-ceive the consumer.
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3.1.2. organization vs institution
Many terms – system, structure, function, organization, and institution – deserve special attention here since they will be the foundations of the framework of our study. Therefore, we have chosen to refer to the Durkheimian conception of institutions as well as further develop-ments made by Douglas and Groffman. To sum up, the institution has its own existence: it exists outside of individuals (Durkheim), it brings together symbolic structures (Douglas), and imposes
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standards to which individuals adjust or can even oppose (Goffman). Below is a table of defini-tions by various authors that will be relevant to this work.
Table 3
General overview on institutionalization Source: from Virginie Tournay (2011)
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We include also the postulate that each part or each organ of the society is arti20 -culated with others, and so the resulting system and functions are an organization. Thus, we dis-tinguish the system and its functions (organization) separately from the structural components (institutions).
Despite the fact that evolutionists confuse the organization as both the whole and the part, here we took the decision to dissociate the two and take the organization as the result, the sum of the institutions, their exchanges, and their actors. Thus, we take the Durkheimian (Durkheim 1983) acceptance of the term which considers an organization as a general structure with more or less elaborate order. For our work, this definition means that institutions and organization are not interchangeable: the former, through practice and action, gives rise to the latter. Unlike more recent schools of thought, we choose to maintain this distinction because it allows a wider scope
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and more features for our analysis. We will not ignore other, more liberal, founding fathers like Spencer, Weber, or de Tarde, but we have chosen a conception which assigns more natural and institutionalist definition of these terms, along with a more global understanding of organization and more organic notion of institution. We believe in the interdependence of institutions and or-ganization such that the former conditions and participates in the making of the latter. In this sense, we challenge the idea that the organization must be studied autonomously and indepen-dently (Bernoux 1985).
For Durkheim, an organization is more or less perfected, that is to say the natural sum of its past and contributing factors. However, unlike natural organisms, whose internal functions operate mechanically, the institution of classes is cultural and arises from struggles and conflicts in societies (Durkheim 2013, 367). We will here also recognize the contributions of Marcel Mauss (Ledent 2004, 36) who adds that the organization is a general arrangement used to coor-dinate parts of society and not an elementary grouping related to social structure and action. The-refore, it makes sense to study the institutions at stake and try to compensate for weaknesses to then conceive of a better and more efficient global institution.
However, we will not apply Durkheim's definition of the institution, as it appears to contradict his notion of organization, but we will rather follow the idea that the institution is the product of a social history marked by symbolism, a social form specific to humans and guarantor of cohesion. As a result, a law, a government organization such as customs and the police are all examples of institutions which are the product of the social history of a society, holding the mo-nopoly of symbolic power in that they guarantee the cohesion of individuals. Mauss thus ex-plains the institutions and the social structure: "We therefore understand by this word both uses and fashions, prejudices and superstitions as well as political constitutions and essential legal or-ganizations; […] True institutions live, that is to say change constantly: the rules of action are neither understood nor applied in the same way at successive moments, even though the formu-las which express them literally remain the same. […] There are two main orders of social phe-nomena: the facts of social structure, that is to say the forms of the group, the way in which the elements are arranged there; and the collective representations in which the institutions are gi-ven" (Mauss and Fauconnet 1901, 150-151 and 162). Institutions will therefore here, as with
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Bouglé (Bouglé 1909, 154-216), serve as organs of society which aim to integrate horizontally, to reinforce its cohesion in the face of what can divide it. Thus, the legal system, the laws, the customs, the police, and so on are all measures taken in order to unite individuals against divisive threats: crime and trafficking, for example. Sometimes, however, the term “institution” will ap-ply to an association, established for the purposes of better integrating society. Indeed, we accept the idea that man, being naturally interdependent, creates associations with others in order to re-lieve individual burdens. This formulation also more fairly reflects the complexity of modern society and our subject of study. Undeniably, there is a great multiplication of groupings that coa-lesce around common goals, some of which then associate and intersect – like the police and cus-toms, for example. Despite their own purpose, these institutions can associate and cooperate.
Following Durkheim and according to the table above, let us now consider the ideas of Mary Douglas. For her, institutions go even further and bring together symbolic structures. Dou-glas answers the question of the origin and the foundations of social order by shedding light on the role that cognition plays, thus highlighting how individuals construct institutions. Of particu-lar interest to our analysis, she highlights the influence of institutions on individual thoughts and shows that the former is what maintains social order. It then appears that institutions, just like Durkheim's society, forge individuals and therefore guide their activity. It is natural, then, to look at the influence institutions have in the fight against counterfeiting and on the companies of Hong Kong and Taiwan. For instance, what role do institutions play and to what extent do they intervene in the decision-making processes and the strategies employed by Hong Kong and Tai-wan in the fight against trafficking?
Before we answer this question, we should recognize that institutions are created as an expres-sion of collective will and action. According to Mary Douglas, institutions reflect "the emergence of common beliefs and the possibility for latent groups to achieve a certain degree of collective practice" (Douglas 2004, 71), with the only initial condition being that the members, without wanting to give up their individual freedom, seek to ensure the survival of the group. It therefore follows the line of Durkheim and Fleck who advocate that because individuals share the same categories of thought, so are they interdependent with each other. This perspective combines
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tional choice theory and functionalism, whereby institutional foundation draw form utilitarian (individuals seek to maximize their utility) and rational (seeking consistency, stability, and order of people) influences. Mary Douglas goes further and explains that “individuals, when they se-lect among the natural analogies those which are going to be authentic, at the same time sese-lect their allies and their enemies, as well as the pattern of future social relations. By building their interpretation of nature, they also constrain the construction of their society. In short, they are building a machine that thinks and makes decisions on their behalf” (Douglas 2004, op. cit. 99).
Therefore, a certain notion of reciprocity appears: the individual creates the institutions which will mold individuals and organize their society.
While cognition plays a central role in the foundation of social order, the resulting order in turn influences cognition by delineating systems of thought. This relationship then influences worlds and ways of thinking, especially the ways of classifying subjects and objects among themselves. Institutions generate and organize information by defining classification methods but also by managing memory. One might assume that classification methods arise naturally as a consequence of objective comparison. In truth, as a result of the process of naturalization of ins-titutions discussed above, judgments of similarity are instituted and instead correspond to prin-ciples of inclusion-exclusion in defined categories and not to the sensory and objective measu-rement of qualities. Institutions provide categories for thought which then evolve with the social order. Likewise, they organize and structure memory by highlighting information that supports and is in accordance with the established social order, and generally makes those that are incom-patible slip into oblivion. Therefore, "to observe how criteria are set which highlight certain types of events and obscure others is to examine the social order at work in individual thoughts" (Douglas 2004, 106). Taking up the concept of "structural amnesia" established by Evans-Pritchard, Douglas shows us how institutions, by building styles of thought, organize memory in a coherent way, so as to justify and rationalize their existence. In short, the social sys-tem models the syssys-tem of memory: "a competitive society celebrates its heroes, a hierarchical society its patriarchs, a sect its martyrs" (Douglas 2004, 119).
Thus, institutions generate the prism through which we understand the world. It would seem then
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that we let them think for us. With a cleverly chosen example from the very field of social psy-chology, the author points out how institutions manipulate our reasoning while making them-selves invisible. The idea that institutions think for us is all the more difficult to accept as it seems to deprive us of all independence of mind. Moreover, as Mary Douglas deftly points out, this idea challenges her own reasoning since this analysis itself fits within a social framework.
How then can we have an objective (or at least as objective as possible) look at ourselves, free of the influence of institutions, if institutions mold our thoughts? We can avoid falling into a fatalis-tic relativism if we work to understand how this mechanism acts and thus earn a certain intellec-tual independence. To this end, Douglas takes up Ian Hacking's induction, where he describes a
"labeling process" to explain the influence of the social on self-perception. If institutions gene-rate modes of classification, and therefore classifications, they then define in a certain way the identity of individuals who perceive themselves through the prism of these instituted nomencla-tures. In addition, individuals appear to redefine themselves and merge into new groupings as they appear, and so modify their behaviors to suit. In short, "people make institutions, institutions make classifications, classifications shape actions, actions call names, and people, or other crea-ture, respond to those names, positively or negatively" (Douglas 2004, 146). This is how institu-tions influence the very identity of their members.
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3.1.3. Institutions and counterfeits
Counterfeiting thrives because of the desirability of luxury goods and the willingness of consumers to buy the goods. The choices to produce and purchase counterfeits are moral ones, and we can query how the principles and framing flow from institutions. Such principles are held sacred after repeat reinforcement in society, and it is then unconsciously that we let institutions guide our decisions, almost as a reflex when it comes to fundamental choices. Douglas, by asso-ciating Hume and Durkheim, forces us to accept the idea that our principles of justice are a "so-cial artifact" which meets the criteria of the sacred as defined by Durkheim. Attacks against them arouse a passionate defense, they cannot be desecrated without harmful consequences and
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cit invocations are associated with them (names, places, symbols, et cetera). It is then intolerable and destabilizing to reject institutional attempts to administer corrective justice. Moral principles, though, are also institutionalized and therefore need to be put into context. "When individuals disagree on issues of elementary justice, their conflict becomes completely insoluble if it in-volves institutions based on incompatible principles" (Douglas 2004, 172). Yet, Mary Douglas refuses moral relativism: for her, not all justice systems are created equal, and while they cannot be taken out of context, it is nevertheless possible to compare them. To do this, it is necessary to study their coherence, their effectiveness, their proximity to the population, and so on. A theory of justice must therefore take into account the relationship between the individual and society, and hence the interest of studying the relationship between cognition and institution. Moreover, we must keep in mind that "to choose rationally [is] to constantly choose between several social institutions" (Douglas 2004, 171).
Our logic is to evaluate the response to counterfeit trafficking by comparing the institu-tions involved. We will have a dialogue with different actors at several levels: individuals, firms, national institutions, and supranational institutions. Again, we will extend Douglas' model to le-vels higher than her initial work, drawing links between the local, the national, and the global for issues governed by national and international legal frameworks. We must engage these levels, for trademark protection is institutionalized at the national, regional, and international level, and all these elements, both actors and institutions, clearly reflect the myriad strategies and measures that we find in the field.
Having established our objectives, let us now examine the legal framework and existing institutions to Taiwan and Hong Kong through the prism of the theory of institutions in Chapter 3. In Chapter 4, we will review the strategies that arose as a system, and then consider what al-ternatives might be incorporated to increase efficiency in the fight against counterfeiting. Given that our analysis emphasizes the actions of and interactions between institutions, we will try to provide answers through the sociology of organizations.
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3.2. Theorizing the current existing framework
In Chapter 3, we will return to the different participating institutions and the laws in place for analysis. At that time, we will use the following methodology, and frame our cases as illustra-tive examples of our theories.
3.2.1. Comparing the governments’ institutions
Our analysis will begin with the different parties at stake. Many different entities have stakes in combating counterfeit: for Hong Kong, the customs and excise department, the Intellec-tual Property Department, and the Hong Kong Trade Development council; in Taiwan, the Tai-wan Customs, the TaiTai-wanese Intellectual Property Office, and the TaiTai-wan Intellectual Property Court. We see here that both Hong Kong and Taiwan governments created similar logical divi-sions and tasked dedicated institutions with similar areas of responsibility.
During our comparison, we will employ Lionel Chaty's (Chaty 1999, 267) breakdown. He dis-tinguishes three main elements in the analysis of institutions: the inhabitants, the places and things, and the rules. An “inhabitant” is to be understood as agent or actor but meant to be neutral and free from any theoretical interpretation. He then evokes their occupied (institutional) posi-tion, their behavior, their groupings and positions within groups, their practice, their discourse, and their representation. He then defines “places and things” as the geographic position of the institution, the exterior appearance of the buildings, the internal structuring of the premises, and their technical tools. Finally, he understands “rules” as the legal, practical, and promotional rules.
In the case of our institutions, it will not be a question of drawing up a list of characteristics ac-cording to these different elements but rather of choosing those which appear relevant in order to highlight the positive, effective aspects of these institutions and, by contrast, areas that malfunc-tion and require improvement.
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3.2.2. The current juridicial framework
At each level, different laws and legal systems apply. Firms protect themselves through their own operations, and states have their own judicial strategies. At the top, states try to syner-gize efforts through regional or international initiatives. This last area will be further reviewed later with a more global perspective. For our analysis of legal systems, we shall rely on Hau-riou's (Millard 1995) work and sociological grounding. He explains that "a little sociology takes you away from the law, a lot brings it back". Thus, to go beyond a simple description of the preexisting Taiwan and Hong Kong frameworks, we will apply the analysis of two elements: the connection between all the ways of knowing the law and assigning a place to the law in the so-cial. Thus, the law is given its proper sociological context. However, we will not use Hauriou's conception of institutions, and instead maintain our Durkheimian perspective.
At each level, different laws and legal systems apply. Firms protect themselves through their own operations, and states have their own judicial strategies. At the top, states try to syner-gize efforts through regional or international initiatives. This last area will be further reviewed later with a more global perspective. For our analysis of legal systems, we shall rely on Hau-riou's (Millard 1995) work and sociological grounding. He explains that "a little sociology takes you away from the law, a lot brings it back". Thus, to go beyond a simple description of the preexisting Taiwan and Hong Kong frameworks, we will apply the analysis of two elements: the connection between all the ways of knowing the law and assigning a place to the law in the so-cial. Thus, the law is given its proper sociological context. However, we will not use Hauriou's conception of institutions, and instead maintain our Durkheimian perspective.