Chinese Water Pollution Law Amended for Good

China faces many problems in its modernization. Income gap, aging population, air pollution, inadequate housing, social security/retirement, and the lack of affordable healthcare, to name just a few. But, none is more urgent and worrying than water pollution. Many readers are already familiar with media coverage of extensive pollution in major Chinese waterways and fresh water sources, and it is unnecessary to list them one by one. But, I do want to make an exception, the pollution of the Hanjiang River, as reported in the last few days, because it has touched a personal nerve.

I grew up by the Hanjiang River, along its upper stretches, close to its origin, so I have some emotional attachment to this nurturing, and at times mighty river. About a fifteen- minutes walk away from my home, as a kid, I used to swim and fish in it, search for rocks along its southern bank, graze our family water buffalo by it, and even drink from it. It was not so special while I was there, passing by it thousands of times. But it is when I have left my home that I realized how important a river like that is in shaping who I am today. So, upon hearing that pollution turned the water in the lower stretches of the river, I lament for its suffering. Even more so, I am deeply concerned for the people who live by the river because they rely on it for its life sustaining water, one of the most precious yet underappreciated natural resources on earth.

With that said, I am glad to hear that the Water Pollution Prevention and Control has been amended to abate the almost out-of-control pollution situation in China.

According to this report:

China's top legislature on Thursday passed an amended water pollution law that toughens punishment of company officials through hefty fines.

The Water Pollution Prevention and Control Law, to take effect on June 1, was passed at the 32nd session of the Standing Committee of the National People's Congress (NPC), which concluded in Beijing on Thursday.

"Enterprise heads directly responsible for causing severe water pollution incidents and others with direct responsibility would be fined up to half of their income in the previous year," said the law.

Previously, corporate executives faced only administrative penalties.

Water pollution is among the top environmental concerns of the Chinese government and the public.

A 2006 survey found that surface water generally was classified as containing intermediate levels of pollution, but one third of the 744 samples tested were graded at the worst pollution rating.

Yes, I have my doubts about how effective these amendments will be in the come days and years in alleviating the vast pollution problem facing the Chinese. I cannot help but question: how will monetary fines against executives of polluting companies effectively reduce and curb pollution (does deterrence really work?)? How strictly will this law be enforced? What viable measures and policies are in place to cure the impact of water pollution? Besides administrative penalties, civil fines, can individuals be given a private right of action for injuries due to pollution? If the current anti pollution legal structures are not effective, what solutions, legislative, administrative, or non-government related, could be adopted to abruptly abate pollution and jump start cleaning up process? Answers to some of the questions probably lie in a quick research, which I will do soon; but some questions are beyond my limited scope of knowledge.

The first required book in law school, which is not a casebook, was A Civil Action. It’s an enthralling book about a lawyer taking on two large corporations (W.R. Grace and Beatrice Foods) that allegedly polluted underground water. It is such a powerful book. (I digressed.)

Notwithstanding the questions I have about the amended Water Law, I welcome any step forward by the Chinese government (legislature) to address pollution.

What do you think?

G2000 v. 2000: Do Fear the Domino Effect

In my previous post, I indicated that G2000 has a much bigger problem ahead. Here is why.

Only one issue might be on appeal at the Zhejiang Higher People’s Court --the 20 million Yuan in damages for Plaintiff. No matter how the Court decides, Defendant G2000 will desperately want another bite at the apple regarding the validity of Plaintiff’s “2000 ” mark, but that is just a fanciful wish. In Chinese trademark litigations, as well as other civil trials, parties only get one appeal, which already occurred at the Beijing Higher People’s Court. Second, Beijing 1st Intermediate People’s Court and the Beijing Higher People’s Court have the exclusive jurisdiction on administrative trademark cases, which renders Defendant’s fanciful wish even more distant from reality. In short, Plaintiff’s “2000 ” mark is valid for the goods/services registered for, and that is written in the stone as of now, unless Plaintiff somehow forfeits it at a later date. But that is not the concern here.

So, what do all these mean to G2000, the big Hong Kong fashion company, the successful and expanding international franchisor?

IT IS ALL BAD NEWS for a number of reasons!

First, obviously, G2000 will be ordered to cease the use of the “G2000” mark on its ties, socks, belts, and scarves. Well, relatively speaking, this is no big deal since what franchisees can do to G2000 is a tremendous headache. Since trademark, in most cases, is the core of a franchise system, uncertainty in the trademark casts a very long shadow on the franchise system itself. If the G2000 mark violates the rights of another with respect to the types of goods complained of, G2000’s franchise system suffers a major loss in its family of trademarks, and that translates into a major loss in revenues.

Second, Chinese franchisees can sue G2000 for violating the Chinese franchise regulations. Pursuant to the Regulations on the Administration of Commercial Franchise, a franchisor must disclose to prospective franchisees the status of its intellectual property, and its disclosures must be complete, accurate, and truthful. See Arts. 22-23. If in the unfortunate event that G2000 did not disclaim or disclose the status of its litigations on the “G2000” mark, it could find itself in a heap of trouble with the Chinese franchise regulators (AICs, and the Ministry of Commerce). The administrative penalties for violation of these Regulations can be substantial. See id., Art. 24-29. What is worse, franchisees could sue G2000 for breach of contract, fraud, and repudiation of the contract because of the failure to disclose. See id.

Third, as part of the domino effect (if number 2, above, occurs), G2000’s entire franchise system in China will be in jeopardy. It will have to deal with possible lawsuits from its some 436 franchisees. In addition, the named co-defendants won’t want to share the blame for the joint and several liability in the original law suit. Furthermore, G2000’s image, no matter how bright and attractive, will have been tarnished not only among its consumers, but more importantly among prospective franchisees. Growth and expansion in China through franchising, the fastest growing method of product distribution in China, will suffer at the minimum a slow down.

As one can see, one big mistake, especially in a company’s overall IP strategies in China, could have far-reaching impact on its bottom line. In this age of globalization and commercialization, intellectual property, trademark in this case, is of utter importance. Without a comprehensive, proactive, and sound IP strategy, franchisors march into China at their own peril.

G2000 v. 2000: Is 20 Million Yuan Enough for Trademark Infringement?

I thought I have blogged about almost everything interesting on Chinese Trademark Law. But, I was wrong. In the case of G2000 v. 2000, the Hangzhou Intermediate People’s Court showed Chinese Trademark Law is still more interesting than the Leifeng Pagoda in Hangzhou, and the Hong Kong star sex scandal.

(Disclaimer: After a reasonable search, I have not been able to locate the actual opinion of the Court. The content of this post is based on multiple news sources, here and here. Surprisingly, the Hangzhou Intermediate Court does not have a website while other intermediate courts of lesser importance in Zhejiang Province have.)

First, this is a somewhat complicated trademark infringement case involving one plaintiff and multiple defendants. And the defendants have appealed the decision to the Zhejiang Higher People’s Court; therefore, the outcome of the case as laid down below could change, depending upon the Court’s prospective decision.

The Parties:
Plaintiff is an individual, Mr. Zhao Hua, in the business of manufacturing and selling socks, ties, and scarves. He acquired by assignment and still owns the trademark “2000” (Registration # 1094814), which was first registered by the original owner in 1997. And it was registered for Class 25 Goods (Clothing, footwear, headgear), including the following categories: socks, gloves, scarves, ties, belts, sashes, and veils.

Defendants:
Defendant is G2000 (纵横二千集团), a Hong Kong company, in the fashion/clothing business with corporate and franchised units scattered in many Asian countries/regions. It manufactures and sells its full lines of products including casual, formal and informal clothing and accessories for men and women. In addition, it also franchises its business concepts internationally.

In 1992, Defendant registered the “G2000” mark in China for use covering clothing, shoes and headwear. (carefully note the different types of goods registered for as compared to those registered for by the Plaintiff under its 2000 mark.)

In 1997, Defendant registered the same G2000 mark for handbags, shopping bags, and straps (手袋、购物袋、背带等).

In 2002, Defendant registered the G2 mark for clothing, neckties, socks, scarves, belts, etc. (服装、领带、袜、围巾、腰带等)

In May 2002, Defendant filed an action in the China Trademark Office to cancel plaintiff’s trademark (2000), then it unsuccessfully appealed to the China Trademark Review and Adjudication Board (the “TRAB”). Finally, it brought an administrative action pursuant to Article 33 of Chinese Trademark Law 2001 in the Beijing First Intermediate People’s Court, challenging the TRAB’s decision, but to no avail. On final appeal in 2005, the Beijing Higher People’s Court affirmed the administrative decision, holding that Plaintiff’s mark is valid for the types of goods so registered under Nice 25 Class.

Co-defendants are Shanghai Heyuan Clothing, Ltd. (上海和缘服装有限公司) and Guangzhou Qianying Clothing, Ltd. (广州千盈服装有限公司), and Zhejiang Yintai Department Store, Ltd. (浙江银泰百货有限公司), all of which are Defendant’s franchisees in China (or they might be area developers, or sub-franchisors. The exact legal relationship between co-defendants and the defendant is not clear to me.).

Brief Facts:

Facts of this legal saga lasting more than eight years are complicated. Back in 2000, Plaintiff sent a demand letter (cease & desist letter) to Defendant and co-defendant Shanghai Heyuan Clothing, Ltd., alleging trademark infringement with respect to the use of G2000 in connection with their sale of socks, gloves, ties and scarves. Between 2000 and 2006, Plaintiff also sought redress by filing multiple complaints with local Administration Industry and Commerce (“AIC”) in Beijing, Guangzhou, and other cities, but apparently achieved little (Doesn’t this make you think twice about the efficacy of AICs?). And to gather evidence, in the span of 10 months from May 2005 to March 2006, Plaintiff purchased allegedly infringing goods at various stores and locations sold by Defendant’s/co-defendants’ G2000 specialty units in Beijing, Shanghai, Hangzhou, Ningbo, and other places.

Plaintiff, I assume, filed this action soon after the Beijing Higher People’s Court handed down its decision against G2000 in 2005. The timing was pretty good on the part of the Plaintiff since the Beijing Court’s decision eliminated some uncertainty as to the validity of his trademark rights in 2000 for the goods registered for.

Additionally, it is important to note that Defendant operates a widespread network of company-owned and franchised units (reportedly 436 units in China), selling goods under the G2000 trademark. Of course, “goods” as referred to include those types that Plaintiff was seeking for relief.

Issue:

Whether Defendants’ use of the G2000 trademark for ties, socks, belts, and scarves (领带、袜子、腰带、围巾) caused confusion with Plaintiff’s goods bearing the 2000 mark among consumers?

Holding:
The Court held that Defendants infringed on Plaintiff’s rights, but for lack of access, no detailed analysis is available (Chinese courts, as do many courts in civil law jurisdictions, do not provide detailed analysis for their decisions, unlike their counterparts in common law jurisdictions. Exceptions, like the Starbucks v. Shanghai Copycat, do exist.).

My Thoughts & Reactions:

The court’s award of damages in this case is intriguing. Plaintiff pleaded for damages totaling 20,000,000 Yuan (that is right, 20 million). And the Court ordered the Defendants to turn over the figures for total sales, profits, etc. for the goods complained of in the relevant period of time, but the Defendant failed to do so. Generally, Chinese courts award damages to a plaintiff in an IP infringement case to the extent of a defendant’s illegal profits as proven, rather than losses sustained by the plaintiff. See Kate C. Hunter, Here There Be Pirates: How China is Meeting Its IP Enforcement Obligations Under TRIPS, 8 San Diego Int’l L. J. 523, 547. In addition, if the illegal profits or plaintiff’s losses cannot be accurately ascertained, the statutory maximum award of damages is 500,000 Yuan. See Chinese Trademark Law, Art. 56. Therefore, in an act rarely seen in Chinese courts, the Court awarded a whopping 20 million Yuan to the Plaintiff. Further, given the intertwined relationships among the Defendants, the Court held them jointly and severally liable. (for more discussion on awarding damages, please visit China Law Blog's post here.)

Obtaining sufficient damages in IP infringement cases is of paramount importance, if not the paramount one. After all, without proper compensation, a plaintiff’s glorious victory in the people’s courts can only be a “feel-good” occurrence, without much substance. (However, that is not to say that winning is not important.) Perspective and purpose affect one’s reactions to a major score in the courts. If a plaintiff’s main goal is to make a statement to actual and prospective infringers, and to enjoin current infringements, a win deserves much celebration. However, if a plaintiff’s main goal is to seek redress and obtain monetary and equitable relief, a win unsupported with lost profits waters down sweetness.

On appeal, the bone of contention, as I expect, would be that award of 20 million in damages to plaintiff. Of course, Defendants will try to set aside that amount, citing that it exceeds the statutory maximum; whereas, the plaintiff might argue that the 20 million award is appropriate given the scope and extent of violations, in addition to their failure to turn over documents within their control to ascertain the exact amount of damages.

Insofar as infringement is considered, it is a classic example of reverse confusion issue. According to Joel R. Feldman,

[i]n reverse confusion cases, a junior user (defendant) adopts a mark already in use by the senior user (plaintiff). However, the junior user dwarfs the senior user through advertising and other expenditures used to promote the mark. While the senior user has a “property” interest in protecting the mark, the public may benefit more from the junior user’s adoption of the mark because they only identify the mark with the junior user and are not confused by the dual uses of the mark.

Like any trademark infringement case, the key for Plaintiff is to establish confusion. Here, the fact is that the Defendant registered the G2000 before Plaintiff (his predecessor) registered the “2000” mark, but Defendant’s mistake was not to register its mark to cover more types of goods, specifically ties, socks, belts, and scarves. Instead, it only registered it for clothing, shoes and headwear. It is very easy to see what happened here. As Defendants’ business grew and expanded in China, it wanted to use the mark for ties, socks, belts and so forth, but found out, albeit regrettably, that it was too late to register. However, it was too lucrative not to go ahead with the expansion into more products with the coveted and profitable “G2000” mark. The fact it filed an objection/cancellation action with the Trademark Office speaks for itself. Although one might contend that plaintiff might have had ulterior motives when it registered the “2000” for the categories of goods under Class 25, plaintiff (or its predecessor) did so within the bounds of the Chinese Trademark Law at that time. And it did so because Defendant had failed to obtain trademark rights large and extensive enough to exclude others like the plaintiff from using the “2000 ” mark for any reason. And it did so, arguably, on account of Defendant’s failure to develop a comprehensive IP strategy before G2000 became highly profitable.

On the topic of a comprehensive IP strategy, G2000, I think, failed miserably. In addition to what I discussed above, it relied too heavily on the legal approach for its overall IP enforcement/strategy. Once its opposition/cancellation action failed through the entire legal process, it should not have pretended that “2000” problem does not exist. (This is simply for the sake of argument since I am assuming that Defendants did not attempt to buy out Plaintiff.) Should it have employed other means and strategies to make this headache go away? Should it have reached some kind of settlement agreement with respect to damages, or the use of the “2000” / “G2000” mark?

I think it should have done something more proactive to avoid a much, much bigger problem that is waiting for G2000. And if the appeal gets affirmed, or vacated on the issue of damages (assuming that is the only issue on appeal), the legal standing of Defendant’s “G2000” mark is still in doubt with respect to the categories of goods in question, thus jeopardizing its entire franchise system in China.

Next post will discuss the impact of this case on G2000’s franchise system.

The Supreme People's Court's 2-18-08 Judicial Explanation on Trademarks, Enterprise Names, and Other Prior Existing Rights

(The following is my attempt at translating the SPC's latest Judicial Explanation regarding the issues/conflicts between registered trademarks, enterprise names and other prior existing rights. If I have mis-interpreted any part of the Judicial Explanation, please kindly point out in your comments. Thanks! In addition, I will write a following post on the impact of this Judicial Interpretation.)


People's Republic of China The Supreme People's Court Notice
Law Explanation (Fashi)(2008)(3) Provisions on Several Issues in Hearing Cases Regarding the Conflict between Prior Existing Civil Rights and Registered Trademarks & Enterprise Names adopted on February 18, 2008 by the Supreme People's Court Judicial Committee meeting No. 1444. It is hereby announced that it will go into effect on March 1, 2008.

February 20, 2008中华人民共和国
最高人民法院公告
法释〔2008〕3号

《最高人民法院关于审理注册商标、企业名称与在先权利冲突的民事纠纷案件若干问题的规定》已于2008年2月18日由最高人民法院审判委员会第1444次会议通过。现予公布，自2008年3月1日起施行。

二○○八年二月十八日

To correctly resolve civil disputes involving the conflict between registered trademarks & business names and prior existing civil rights, these provisions are hereby instituted in accordance with the PRC Civil Procedure Law, General Principles of Civil Law, the PRC Trademark Law and the PRC Anti-Unfair Competition Law, as well as trial practices.

为正确审理注册商标、企业名称与在先权利冲突的民事纠纷案件，根据《中华人民共和国民事诉讼法》、《中华人民共和国民法通则》、《中华人民共和国商标法》和《中华人民共和国反不正当竞争法》等法律的规定,结合审判实践，制定本规定。

Article One Provided that requirements under Article 108 of the PRC Civil Procedure Law are met, People’s Court should accept cases filed by plaintiffs on the basis that defendants’ use of letters, graphics in defendants’ registered mark violated Plaintiffs’ existing copyright, patent right in packaging design, rights in business names, etc.

Where Plaintiff brings a lawsuit on the ground that another’s registered mark used in approved categories goods/services are similar or identical to her mark, People’s court should refer plaintiff to relevant administrative bodies for resolution, in accordance with Article 111 (3). However, where plaintiff bring a lawsuit on the grounds that another’s use of its registered mark is beyond the categories of goods/services registered for, or where another uses a registered mark by transforming its distinctive features, disassembling it or re-configuring it, the people’s court shall accept such cases.


第一条 原告以他人注册商标使用的文字、图形等侵犯其著作权、外观设计专利权、企业名称权等在先权利为由提起诉讼，符合民事诉讼法第一百零八条规定的，人民法院应当受理。

　　原告以他人使用在核定商品上的注册商标与其在先的注册商标相同或者近似为由提起诉讼的，人民法院应当根据民事诉讼法第一百一十一条第（三）项的规定，告知原告向有关行政主管机关申请解决。但原告以他人超出核定商品的范围或者以改变显著特征、拆分、组合等方式使用的注册商标，与其注册商标相同或者近似为由提起诉讼的，人民法院应当受理。

Article Two Where Plaintiff brings lawsuits, pursuant to PRC Anti Unfair Competition Law Article 5 (3), on the ground that another’s use of a business name is same or similar to her prior existing business name, which use is sufficient to cause consumer confusion as to the source of the goods/service, the people’s courts should accept such cases.

原告以他人企业名称与其在先的企业名称相同或者近似，足以使相关公众对其商品的来源产生混淆，违反反不正当竞争法第五条第（三）项的规定为由提起诉讼，符合民事诉讼法第一百零八条规定的，人民法院应当受理。

Article Three The people's court shall, in accordance with the plaintiff's claim and the nature of controversial legal relationship under civil law, and in accordance with the Civil Causes of Action (Provisional), ascertain the cause of the conflict in civil disputes between registered trademarks or enterprises and prior existing civil rights, and apply appropriate law accordingly.


第三条 人民法院应当根据原告的诉讼请求和争议民事法律关系的性质，按照《民事案件案由规定（试行）》，确定注册商标或者企业名称与在先权利冲突的民事纠纷案件的案由，并适用相应的法律。

Article Four Where the use enterprise name complained of infringe on the exclusive right of registered marks, or constitute unfair competition, the people's court, in accordance with the plaintiff's petition and specific circumstances of the case, may assign civil liabilities, such as enjoining defendant from using such name, correcting such use, etc.

第四条 被诉企业名称侵犯注册商标专用权或者构成不正当竞争的，人民法院可以根据原告的诉讼请求和案件具体情况，确定被告承担停止使用、规范使用等民事责任。



　　

Smart China Exit Strategy: Leave but Don’t Burn Your Bridges

China Law Blog (the “CLB”) has just come out with an excellent post regarding how investors should deal with the changing investment circumstances/environment in China. Most fittingly, CLB titled its post as “China Changes. Don't Over-React. Don't Under-React.”

To substantiate its argument, CLB borrows some pearls of wisdom from the China Business Blog, which recently posits the following on how one should respond to changes occurring in China:

1) Don’t over-react
The recent changes in China are not a death knell for global business. What is happening here are just the normal growing pains of a developing economy showing signs of budding maturity and the problems that go along with it.

2) Don’t under-react
China IS going to be a growing consuming market and it WILL suck up a lot of raw material and energy resources. And this WILL have an impact on other nations and economies by making these resources more expensive. It is a reality. It is happening. Sitting and complaining about it is NOT going to help. What emergency plans do you have that address potential future scenarios involving a growing China?

3) Don’t over or under-react, but DO REACT
Many a fortune cookie tells us, in some form, that in the midst of great chaos one may find great opportunity. Well, now seems a time of – if not GREAT chaos – then of some modicum of chaos in global markets. So how can you react and take advantage of it?

4) Look at all of your options
The lesson here is that companies should certainly consider their growth possibilities in China. It is (and will remain for some time) the most compelling market in the world. However, companies should not look at China at the cost of ignoring other markets. If the changes in China are motivating companies to consider all of their options, then I think this is possibly a good thing and is healthier for everyone involved.

In pure simplicity and brevity, CLB translates the above into—“use your head” when dealing with a changing China.

CLB’s advice is most poignant and relevant in light of the way some Korean companies are handling recent changes in China. Reportedly, some Korean companies decided to withdraw from the China, thus causing a pretty noticeable exodus. Nothing wrong with leaving, but it is problematic when they leave illegally (Chinese only). Some “escaped” in the middle of the night, and apparently the problem is so severe that the Korean Foreign Ministry has stepped in to help the exiting companies leave legally.

True, the cost of doing business in China has risen due to a host of economic and legal factors. Inflation keeps rising; labor costs are getting higher accordingly; tax breaks are disappearing; land control is getting tighter; and then there is the “cursed” labor contract law. For some, a quick exit might be the right and appropriate reaction to the changing investing environment; for others, it might not. But, before jumping onto the exodus wagon, it is crucial to analyze the appropriate measures to take, with professional help if necessary. Examine the motives, methods, reasons, and options for exiting.

It is bad enough to leave China illegally, presumably for not settling accounts with supplies, employees, and not paying taxes. It is worse to find out afterwards that China is actually still the place to be, and that you have already burned your bridges in China.

To end, I quote CLB—“Use your head.”

Low-Budget, High-Yield Legal Aid in Xi’an

After I enrolled in law school, I began to notice what amazing services that legal aid offices in American cities offer to the indigents. They operate on a small budget, yet manage to give their all to their clients’ causes. As the good folks at the Dallas Bar Association put it, Pro Bono work is like “billable hours for your soul.”

It turns out that lawyers in my home turf of Shaanxi Province are doing the same, providing much needed legal representations to migrant workers who would otherwise not be able to afford lawyers. As I wrote in one of my previous posts, affordable and easy access to the justice system in a country is essential to the establishment of the rule of law. And what China Digital Times reported does shine a gleam of hope for many, including the disenfranchised Chinese workers and those of us who care about China’s legal system.

In its post titled Why Migrant Workers Praise the Law, CDT states:

The Shanghai Daily News reports that migrant workers have some hope to resolve their woes with free legal assistance in the northwestern city of Xi’an in Shaanxi Province.

Running with a budget of less than 7,000 yuan (US$972) per month, the Xi’an legal-aid station is hailed as a “beacon” for migrant workers by local media which have tracked the station since its formation last year. It is a joint effort by the United Nations Development Program and the All China Lawyers’ Association.

Migrant workers who number up to 200 million in China usually complain that employers pay them late or not at all, and of work-related injuries.

The station recently helped 41 construction workers fight to collect about 90,000 yuan, their half-year earnings for last year. “The work is tougher as they were employed indirectly through sub-contractors or, even worse, via oral promises,” said Zhao.

Now, the Xi’an lawyers have at least two things to be proud of—the historical legacy of Shaanxi and their care for the “soul.”

The Call of the Home

(Foreword--China Business Law Blog strives to focus on matters only related to Chinese Law, but the following post is an exception due to the unique weather circumstances in China right now. This post is dedicated to all the migrant workers, either at home already or still on the road.)

The coldest winter of half a century has so far claimed at least 60 people.

It has caused billions of dollars in economic damages.

It has paralyzed much of the transportation system in southern, central, and southwestern China.

It has engendered mass blackouts in many areas, including my parents’ home.

And it has exposed the Chinese government’s weaknesses in emergency response management. At least, it is a huge blow to a government whose leadership believes that “man is sure to triumph over nature.”

Besides bringing about these unpleasant losses, damages, and revelations, the worst weather in half a century also showed something golden and precious—Chinese people’s unwavering resolve to go home for the most important holiday of the year, no matter what.

Hundreds of thousands of migrant workers are willing to brave the cold, the pushing and shoving, the rude railway employees, the cops, the hunger and thirst, and the seemingly endless waiting while exposed to the elements. Even though they knew they would be delayed for an extended period of time, most of them still chose to wait some more so that they could catch a train or bus for home. So, many of them are still waiting in the cold as I am writing and by the time you are reading this.

Why? Why don’t they just turn around and return to their factories, warehouses, construction sites, dormitories, or wherever they were before their arrival at the Guangzhou train station? Or some other stations scattered across southern and central China? It would be such an easy, logical, and obvious thing to do, given the grave circumstances.

But they did not. Millions of them chose the counter intuitive approach. They chose to brave the difficulties on their way home. They chose to suck it all up for a New Year’s Eve meal with their family whom they have not seen for at least a year; they chose to “eat the bitterness” in order to spend a few days at home, drinking home water, eating home meals and breathing home air; they chose to go home for all that it stands for and all that it means consciously and subconsciously to them. They chose to go home at all costs. They simply choose home over a hotel room, a dormitory bunk bed, or a rented apartment where they do not belong. Because to them, the simple truth is that as far as the Chinese New Year is concerned, “North, South, East or West, Home is the best.”

They won’t do this for the Labor Day; neither will for the National Day; nor will for any other cultural or political holidays. Somehow, the return to home for the Chinese New Year is so deeply ingrained in their psyche that nothing can overcome their drive and resolve to accomplish it.

Is it worth their while to risk so much, even their lives, just to be home?

For observers outside China, the answer is not so obvious, but for them, it seems to be a simple yes.

After observing migrant workers at the Guangzhou train station, the China Blog has the following to say:

My overriding impression was that I was impressed. I was impressed by what people were willing to put up with just for the possibility of getting a seat or even a spot on the floor of a train for a 20+ hour trip home. It was a grand display of enduring hardship, or what in Chinese is vividly known as "eating bitterness" (吃苦).

Of course, that is what many of these people's lives are about, a willingness to endure hardship to get ahead. The thousands waiting outside the Guangzhou station were largely migrant workers, people who traveled to Guangdong province from China's interior seeking a better life for themselves and their families. So when I spoke with the Chinese reporter, my final thought was that I couldn't imagine many Americans going through this. I left feeling a little guilty for complaining about transpacific flights in economy class.

It definitely gives me a new perspective about the Chinese New Year and going home. The closest thing about going home during a holiday in America can be found, I think, in the comedy movie Planes, Trains & Automobiles, although the mood is totally different from the reality in China now.

Hope the migrating masses in China find their transportation and get safely back to their sweet home soon; and above all, wish all a happy Chinese New Year (starting on February 7, 2008).