(By Dr. Wenbao Qiao) For foreign companies doing business in China, dispute and litigation may sometimes be inevitable. Once a dispute cannot be resolved out of court, there is a long and rocky road to the final success, with several important points to be considered for planning and handling of litigation in China:
Documents and Evidence
The first step of each procedure is to collect and prepare all necessary documents and evidence. According to Chinese law, documents and evidence from another country (such as excerpts from the commercial register or powers of attorney) have to be first notarized in their country of origin and then certified by the Chinese Embassy or Consulate in the respective country. Only notarized and certified documents and evidence will be accepted by Chinese courts. While preparing the documents and evidence, attention should be paid to the timeline required for the notarization and certification. There are several important statutory deadlines shown below. Failure to meet these deadlines can lead to the loss of a case. Notarization and certification in Germany usually takes two to three weeks, which in turn may play a critical role for the time schedule of trial preparation.
One practical suggestion for the preparation of power of attorney is to issue it as so called “special power of attorney”. Such special powers include, for Read More...
(By You Yunting) Mr. Wang Feng (in the Left Picture), the husband of the well-known international film star, Ms. Zhang Ziyi, is a famous singer in China, whose image has immense commercial value. Amateur singer Ding (in the Right Picture) became famous because of imitating Wang Feng in an imitation talented show. Except the similar appearance, he dressed up himself as Wang Feng did, sang the songs created by Wang Feng and even claimed to have his face changed in order to achieve a more vivid effect. As is reported that Wang Feng filed a lawsuit for infringing his rights of name and portrait against Ding who was suspected of profit-making publicity by using the name and photos of Wang Feng in Weibo. Wang Feng claimed to stop the infringement immediately and pay compensation for the infringement incurred.
Viewed from the brief introduction, it is hard to Read More...
(By You Yunting) Recently, Uber Shanghai carries out a marketing activity called Call for one hundred million by one button of Uber cooperated with 1qiaobao, an App owned by PINGAN INSURANCE GRP. According to the Uber’s official Weibo, users can use the Uber App to call the securicar provided by both Uber and 1qianbao, and anyone who is the winner of the caller can obtain all the financing earnings of one hundred million yuan, which is about ten thousand yuan. I think this activity has huge legal risks, therefore hereunder are the risks and its reason.
What’re the legal risks of Uber’s promotion?
The Anti-Unfair Competition Law requires that business operator shall not engage in sales with prizes in the form of lucky draws where the amount for the highest prize exceeds RMB 5,000, which means ten-thousand- yuan-prize of this activity has the risk of breaching the law. Although Uber will not charge the consumers during this activity, providing service is also applied to the article 13 of Read More...
(By You Yunting) I was once asked by a journalist what the foundation of intellectual property courts and the ratification of the Opinions on Quicker Development of the Globally Influential Scientific and Technological Innovation Center matter to small and medium-sized startups, and replied the outcome of those two events were the same, both of which ultimately aimed to enhance the awareness of intellectual property throughout our society and guide small and medium-sized enterprises to establish a competition barrier and a management philosopher on how to avoid infringing others’ intellectual property rights. As governmental authorities define and set official instructions and policies, each startup should take full use of its intellectual property during daily operation, trying to become positioned to succeed, just like a well-known Chinese aphorism says that even the pig can fly when the typhoon comes. Combined with my experiences, this article mainly deals with the issue of how small and medium-sized startups seek intellectual property protection both internally and externally.
- How to file intellectual property application with external departments?
Intellectual property is essentially intangible assets. Specific actions should be taken to ensure your businesses have all rights to such intangible assets, in connection with filing patent and trademark Read More...
(By Luo Yanjie) Recently, Guangzhou Intermediate People’s Court ordered New Balance Trading (China) Co., Ltd, an affiliate of US-based Sports footwear manufacturer New Balance, to compensate a Chinese shoes owner, Zhou Yuelun, with a rarely high amount of RMB 98 million for infringing his Chinese “新百伦” trademark, a Chinese transliteration from English word New Balance, in the first instance. Such high amount of compensation is unusual in China intellectual property infringement. It is for this reason that this case attracted extensive attention. Upon the public records, from the legal view, we will briefly introduce and analyze this case in today’s post.
Introduction to the Case:
Plaintiff: Zhou Yuelun
1st Defendant: Guangzhou Sheng Shi Chang Yun Trading Co., Ltd (the “SSCY”)
2nd Defendant: New Balance Trading (China) Co., Ltd (the “NEW BALANCE”)
Court of first instance: Guangzhou Intermediate People’s Court
Plaintiff Zhou Yuelun claimed that he holds the Chinese character Read More...
- The National Development and Reform Commission and the Ministry of Commerce Publish the Catalogue of Industries for Foreign Investment (2015 Revised Edition)
On the 10th March 2015, the National Development and Reform Commission and the Ministry of Commerce of the PRC published the Catalogue of Industries for Guiding Foreign Investment (2015 Revised Edition) (“Catalogue”) under the approval by the State Council of the PRC. The Catalogue will become effective on the 10th of April 2015.
The Catalogue totally contains 432 items, from which 48 items of the 471 items totally contained in the 2011 Edition, have been eliminated. Among those eliminated items, 41 ones are under the restricted class, 5 under the priority class and 2 under the prohibited class. In addition, the number of items “limited to joint investment and cooperation” in the Catalogue is 15, decreased from 43 in the 2011 Edition and the number of items applicable only to “Chinese controlled businesses” in the Catalogue is 35, decreased from 44 in the 2011 Edition.
Items under the priority class newly added to the Catalogue mainly include modern agriculture, high tech, advanced manufacturing, energy conservation, renewable energy and modern service industries.
Sourced from the official website of the National Development and Reform Commission of the PRC: Read More...
(By You Yunting) As we have already posted Judgment Abstract on NDRC’s Administrative Decision of Qualcomm Incorporated (Part 1) on April 17 2015, today we would like to introduce more.
III What’re the legitimate basis and the final decision?
Pursuant to Article 47 and Article 49 of the Anti-Monopoly Law, the NDRC made the following decisiosn against Qualcomm’s abuse of dominant market position in the SEPs markets and the baseband chip markets:
- Order Qualcomm a halt to illegal activities upon abuse of dominant market position as follows:
a Qualcomm shall provide patent lists to its licensees in China and not charge licensees for expired patents.
b Qualcomm shall not request its licensees in China to grant back their patents for reverse license to Qualcomm for free.
c Qualcomm shouldn’t insist on charging a high rate of licensing fee to calculate based on the net wholesale prices.
d Qualcomm shall offer licenses to its wireless communication related SEPs without bundling with other non-SEPs.
e Regarding the sale of baseband chips, Qualcomm shall not be allowed to Read More...
(By You Yunting) As from October 2013, the National Development and Reform Commission (the “NDRC”) starts the anti-monopoly probe into the world’s biggest cellphone chip maker, Qualcomm (NASDAQ: QCOM) , and makes in-depth investigations and discussion with tens of cellphone manufacturers and baseband chip manufacturers at home and abroad. Recently, the NDRC determined that Qualcomm holds a dominant position in the markets of standard essential patents (“SEPs”) licensing in relation to CDMA, WCDMA and LTE wireless communication and the baseband chip market, and that Qualcomm be fined 6.088 billion yuan in the violation of the Anti-Monopoly Law. Today we will introduce the punishment decision and make comments.
Introduction to the Case:
Respondent: Qualcomm Incorporated
Reference: 发改办价监处罚 1号
I. Why does Qualcomm hold a dominant position?
1. Qualcomm holds a dominant position in the markets of SEPs licensing
The NDRC found that under the following facts and reasons, Qualcomm holds a dominant position:
a Qualcomm occupies 100% shares in the market of SEPs licensing, without any competition. Pursuant to Item 1, Read More...
(By Luo Yanjie) Article 15 of both the 2014 version and the 2001 version of the Trademark Law stipulated that an agent shall not rush-register trademarks of the principal or the represented. In practice, Article 15 is always used to prevent from rush-registration. The following judgment will introduce a typical rush-registration case with new ideas for reference.
Introduction to the Case:
Re-appellant (plaintiff at first instance, appellant at second instance): LEHMANBROWN LIMITED (the “HK Company”)
Re-respondent (defendant at first instance, respondent at second instance): Tradeamrk Review and Adjudication Board (the “TRAB”)
Court of first instance: Beijing No.1 Intermediate People’s Court
Court of second instance: Beijing Higher People’s Court No.: (2012)高行终字第686号
Court of Retrial: Supreme People’s Read More...
1. The New Law Concerning the Administration of Tax Collection (Draft for Comments) Recently Published for Public Comments
The New Law Concerning the Administration of Tax Collection (Draft for Comments) (the “Draft”) was recently published for public comments (Closing date: 3rd of February 2015).
Contents of such Draft involve ideas about establishment of taxpayer identification number policy, based on which each Chinese citizen has a unique and permanently valid taxpayer identification number, new provisions on stopping collection of and not collecting tax interest surcharges, granting tax breaks to those who actively cure acts related to wrongful tax collection or cooperate with tax authorities to investigate wrongful tax collection cases, lowered standards for imposing punishments on taxpayers, narrowed scope for tax authorities to exercise prosecutorial discretion.
Sourced from the official website of the Ministry of Finance of the PRC:
2. The Supreme People’s Court of the PRC Amends Provisions on Issues concerning Applicable Laws to the Trial of Patent Controversies
As of 29th of January 2015, the Supreme People’s Court of the PRC Read More...
Recently, DeBund takes a big step forward in providing mobile internet legal services that You Yunting Team, on behalf of clients, succeeds in pulling a popular game from the AppStore by more than 10 lawyer’s letters.
The Developer of the complained game copied large amounts of background elements of a well-known game, including graphic design, plots, role names and geographic names, and also used the brand of the original game. The Developer also made a cartoon modeling on the game characters, and did a slight change to the game name, not exactly the same as the original game. The infringed benefits greatly from the complained game to millions of yuan every month.
Not exactly the same to the original game is a bit more complicated because in most cases, application market operators are unwilling to push them from the market but would like to ask the two parties solving the matter through lawsuits. However, lawsuits take time. As the infringed still can gain a lot during the lawsuits, it is pushing them out from application market that becomes critical against infringement.
Fierce fights come because of involving numerous benefits. In our Lawyer’s Letters, You Yunting analyzes the infringing contents in detail and explains the reasoning pursuant to the Copyright law, the Anti-Unfair Competition Law, and the Regulations on Protection of the Right to Network Dissemination of Information. At the other side, the Developer contends and Read More...
(By You Yunting) A game guide, also known as game strategy guide, is an essential reference for players. Generally, a game guide may quote pictures and screens from the game itself. But if without authorization, it triggers questions whether this quotation causes copyright infringement. In the following, a similar case will be introduced.
Introduction to the Case:
Plaintiff: Shanghai Aurogon Information and Technology Co., Ltd (the “Aurogon”)
1st Defendant: China Zhongdian Media Co., Ltd (the “ZD Media”)
2nd Defendant: Beijing Sheng Bi Er Digital Technology Co., Ltd (the “SBE”)
3rd Defendant: Beijing Books Building Co., Ltd (the “BBB”)
Court of first instance: Xicheng District People’s Court No.:（2010）西民初字第18215号
Plaintiff, the developer and copyright holder of the game Gujian Qitan, a 3D role-playing video game, filed a lawsuit against three defendants hereof, with the claim that, the book Gujian Qitan Prima Guide (the “disputed book”) published by the ZD media and sold by both SBE and BBB, is unauthorized Read More...
(By You Yunting) Introduction to the Case:
Plaintiff: Shenzhen Qvod Technology Co., Ltd (the “Qvod”)
Defendant: Market Supervision Administration of Shenzhen Municipality (the “MSA”)
Court of first instance: Shenzhen Intermediate People’s Court
The MSA filed a case with the Shenzhen Intermediate People’s Court, and claimed to cancel the punitive fine of RMB 260 million from the MSA. On 30th of December 2014, the Shenzhen Intermediate People’s Court held the trial as the case is still on that trial.
On 26th of June 2014, the MSA issued a punitive fine of RMB 260 million to Qvod. After the receipt of the punitive fine, the Qvod put forward an administrative review but was rejected by the Copyright Bureau of Guangdong Province. The Qvod filed a lawsuit asking the court to cancel the most expensive online copyright administrative punishment. On the 30th December 2014, the court held a trial.
The Qvod claimed, it only provided Read More...
(By You Yunting) China’s two largest Taxi apps Didi Dache (“Didi”) and Kuaidi Dache (“Kuaidi”) confirmed merger on the Western Valentine’s Day, triggering the whole industry, which also lead to the suspicion of a monopoly. Afterwards, the Taxi apps Didi and Kuaidi responded this with much larger travel markets, and told that their merger does not lead to a monopoly, because mobile taxis only count a small proportion with lots of participators. As for whether their merger is accused of monopoly, there are hot discussions among legal professions. At present, third parties were tending to make anti-monopoly investigation from the Ministry of Commerce, and I am no exception. But after full consideration, I fell into confusion.
At the first interview by reporters, my opinion was that the Ministry of Commerce should initiate an investigation. According to the Provisions of the State Council on the Standard for Declaration of Concentration of Business Operators, where a concentration of undertakings does not reach any of the thresholds specified in Article 3 herein, but facts and evidence collected in accordance with the prescribed procedures establish that such concentration effects, or is likely to effect, the elimination or restriction of competition, the competent commerce department of the State Council shall initiate an investigation in accordance with law.
But could Read More...
- The New Foreign Investment Law(Draft) Published for Public Comments
On 19th of January 2015, the Ministry of Commerce of PRC published the Foreign Investment Law of PRC (Draft for Comments) (referred to as ‘draft FIL’ below). Opportunities to offer comments on the draft FIL will remain open to the public until 17th of February 2015.
Significantly, the draft FIL transforms the current foreign investment administration system by introducing the administration model combining pre-establishment national treatment policies and the Negative List and stipulating that foreigners intending to invest in one of the areas as specified in the Negative List shall apply for and obtain a foreign investment entry permit beforehand. Also, foreign investors throughout PRC shall perform the reporting obligation regardless of the Negative List. Under this new administrative system, foreign investment in most areas can be admitted to PRC without prior approval by relevant departments. In addition, the draft FIL includes provisions on China’s national security review system, the foreign investment promotion and protection system, supervision and inspection of investment and operational actions taken by foreign investors and foreign invested enterprises, strengthened in-process and after-the-fact administration.
Sourced from the official website of the Ministry of Commerce of PRC: