Could Qunar.com be Entitled to Cancel Competitor’s domain name of Quna.com?

去哪儿(By Luo Yanjie) Generally, enterprises are always using the application of trademarks to protect their brands, but because of the strict trademark review and long review periods, sometimes enterprises could not obtain the approval of trademark registration. Even so, with regard to their famous goods, enterprises could rely on the Anti-Unfair Competition Law to protect their rights and interests. In today’s post, we will introduce and share a typical case with readers.

Introduction to the Case:

Appellant (Plaintiff at first instance): Beijing Qunar.com Information Technology Co. Ltd (the “Qunar”)

Respondent (defendant at first instance): Guangzhou Quna Information Technology Co. Ltd (the “Quna Company”)

Court of first instance: Guangzhou Intermediate People’s Court No.: (2011)穗中法民三初字第217号

Read More...

Is It Legal for Foreign Company to Transfer User Data out of China?

(By Wang Ting) Recently, China State broadcast CCTV, imposed Apple Inc. that its iPhone’s ability to track and time-stamp user’s frequent locations without user’s permission infringed user’s privacy. Even though the news impacts turned out to be small in western countries, large amounts of Medias in China reported the news (Note: the link is in Chinese). Within the quicker development of internet and mobile internet, personal data and information has become increasingly frequent cross region and even breaking national boundaries, thus making the transfer of personal data more smoothly. In today’s post, at the beginning of Apple’s device’s location tracking abilities, we will introduce regulations and legal risks concerning how enterprises transfer user data from China to third countries.

  1. Notes of collecting and using user’s personal data

At present, protection of user’s personal data are scattered among different laws and regulations in China. There are major applicable laws, for example, the Decision of the Standing Committee of the National People’s Congress on Strengthening Information Protection on Networks and the Law on the Protection of Consumer Rights and Interests. The Decision Read More...

Introduction to Protection of New Varieties of Plants in China

(By You Yunting)Introduction to the Case:

Appellant (Defendant at first instance): Jiangsu Xunong Seeds Science and Technology Co., Ltd (the “Xunong”)

Respondent (Plaintiff at first instance): Tianjin Tianlong Seeds Science and Technology Co., Ltd (the “Tianlong”)

Court of first instance: Nanjing City Intermediate People’s Court  No.: (2009)宁民三初字第63号

Court of second instance: Jiangsu Province Higher People’s Court  No.: (2011)苏知民终字第0194号

On November 10, 2000, a new three-crossbreed hybrid japonica rice named “9优418”, jointly cultivated by the Liaoning Rice Research Institute (the “LRRI”) and the Xuzhou Academy of Agricultural Sciences (the “AAS”), was approved by the National Crop Variety Approval Committee of China (the “NAVAC”).

The “9优418” comes from the female parent “9201A” and the male parent “C418”. The LRRI applied for the right of a new variety of plant with the Ministry of Agriculture on December 30, 2003 and received the approval on May 1, 2007. On the same day, the LRRI authorized Tianlong to the exclusive right of using the C418.

Read More...

China Laws and Regulations Update in August 2014

  1. The Shanghai Municipal People’s Government Releases the 2014 Revised Version of ‘Negative List’ Applicable in the Shanghai Free Trade Zone

On 1 July 2014, the Shanghai Municipal People’s Government released the 2014 Revised Version of ‘Negative List’ applicable in the Shanghai Free Trade Zone, containing 139 special administrative measurements, while the previous version contained 190 ones, representing a change of 26.8% contents of the Negative List.

The Revised Version of ‘Negative List’ eliminated fourteen (14) material clauses to expand business scopes, fourteen (14) material clauses to lift dual restrictions on both domestic and foreign investments and twenty three (23) clauses to readjust categories. The eliminated clauses, including those restricting foreign investment in mail orders and online sales of ordinary commodities, allowing wholly owned foreign businesses to deal in railroad transport, etc., relate to manufacturing, real estate, infrastructure, commercial trade, shipping, social service sectors, etc.

Website of the Municipal Government of Shanghai:

http://www.shanghai.gov.cn/shanghai/node2314/node2319/node12344/u26ai39501.html

  1. The Ministry of Commerce Publishes the Notice on Improving the Read More...

Could Jewelry Design be Protected by the China’s Copyright Law?

胜利之v俏灵蛇(By Luo Yanjie) It is common in China that a jewelry of the same design would be manufactured and sold by different jewelry shops in the industry of China’s jewelry. With regard to the initial source of the jewelry design, a lot jewelry companies and even consumers are not concerned whoever firstly designs the jewelry. In reality, a well-designed jewelry that took designers a great intelligence shall be protected by the Copyright Law. In today’s post, we will introduce a case where a jewelry design is succeed to be protected by the Copyright Law, sharing with readers.

Introduction to the Case:

Plaintiff: Shenzhen Tongtaifu Jewelry Co., ltd (the Read More...

Introduction to Ownership of the Performer’s Right in China

(By Luo Yanjie) As China recently ratified the Beijing Treaty on Audiovisual Performances, in today’s post, we will introduce the system and cases of the performers’ rights in the Copyright Law. As for who holds the performer’s right, different judgments will be found through three cases. Who holds the performer’s right? The performer, the company/organizationthat hires the performer, or the performing company/organization? These different judgments can become an obstacle for the further development of China’s performing arts.

Firstly, regulations relating to the performer’s right shall be introduced. Item 6, Article 5 of the Implementing Regulations of the Copyright Law stipulates that, performer refers to an actor, performing organization or any other person who performs literary and artistic works. Since Item 6, Article 5 made a simplified stipulation, there are quite different judgments in China’s local courts.

1st Case: The performer’s right belongs to the performing organization.

Appellant (defendant at first instance): China Record Corporation (the Read More...

Why Did NCA Officials Attend Sohu.com’s Press Conference against Toutiao.com?

(By You Yunting) Recently, Sohu vs Toutiao has attracted attention from the media. Sohu sued Toutiao for copyright infringement and unfair competition, whilst Toutiao filed lawsuits against Sohu for defamation. It is quite normal for two enterprises in competition to take legal proceedings against each other. However, what really surprised us was, in their dispute, that governmental officials attended Sohu’s press conference, in favor of Sohu. In today’s post, we will discuss the reason for theimproper governmental interference. Comments and suggestions are most welcome.

  1. The process of governmental attending Sohu’s press conference

On June 24, Sohu held a press conference to announce that Sohu would sue Toutiao for copyright infringement and unfair competition. In Sohu’s press release, it said that some National Copyright Administration (the “NCA”) leaders attended the press conference. Moreover, a NCA official publicly expressed that it is absolutely impossible to carry something that belongs to other people without permission back home or direct trading, thus being the baseline of the Copyright Law and the red line between the Copyright Law and new technology application.(Note: the link is in Read More...

China Laws and Regulations Update in July 2014

  1. The Legislative Affairs Office of the State Council Releases the newly revised Copyright Law of the People’s Republic of China (under Review) and Solicits Public Opinions for It

On 6 June 2014, the Legislative Affairs Office of the State Council released the newly revised Copyright Law of the People’s Republic of China (under Review) and solicited public opinions for it. The deadline for opinion solicitation will be 5 July 2014.

What is most significantly revised according to the draft copyright law under review includes provisions on objects, contents, ownership and the validity period of rights within the scope of copyright. Also, it has stipulated more penalties that will be imposed on those who infringe others’ copyrights and has set forth means of enforcement by administrative authorities concerned, who have powers of seizure and confiscation, which was first stipulated by laws.

(Website of the Legislative Affairs Office of the State Council:

http://www.chinalaw.gov.cn/article/cazjgg/201406/20140600396188.shtml)

  1. The State Administration for Industry and Commerce of the People’s Republic of China Solicits Public Opinions for Regulations (Used for Opinion Solicitation) on Prohibiting Read More...

China Laws and Regulations Update in June 2014

  1. The State of Council Promulgates the Newly Amended Implementing Regulations of the Trademark Law of the People’s Republic of China

On 29 April 2014 the State Council promulgated the newly amended Implementing Regulations of the Trademark Law of the People’s Republic of China. The Regulations took effect on 1 May 2014.

The newly amended Implementing Regulations of the Trademark Law provides supplementary provisions to the new Trademark Law, in connection with renewing the trademark application division system, in which the part of any patent application that does not be refused may be registered before the refused part of the same application is completely reviewed, initiating the trademark agency filing system, clarifying legal responsibilities for illegal acts of trademark agencies, imposing tougher punishment on those who infringe others’ exclusive trademark use rights and adding a chapter entitled ‘international registration of trademarks’.

 (Authorized to be published on

http://news.xinhuanet.com/legal/2014-05/01/c_1110495197_4.htm)

  1. Pilot Intensive Operational Management of foreign exchange funds of headquarters of multinational companies in Shanghai Free Trade Read More...

Is CCTV Refusing to Sub-license World Cup Broadcasting Rights Found Violation of the Anti-Monopoly Law?

(By You Yunting)The 2014 FIFA World Cup is taking place at several venues across Brazil, and is attracting attentions from all over the world. According to reports, CCTV holds the exclusive rights of broadcasting 2014 FIFA World Cup in mainland China. However, CCTV refuses to sell the right of live network broadcasting but only sells the on-demand right of network broadcasting to video sharing websites. In reality, CCTV refusing to sell the right of live network broadcasting could potentially be considered to be a violation of the Anti-Monopoly Law. The following is our legal analysis.

To begin with, we shall look at how CCTV received the rights of broadcasting the World Cup to mainland China. In the last century, all local TV Stations participated in bidding for the right to broadcast the World Cup and other major events in mainland China. However, in 2000, SARFT issued a Circular for Enhancing the Management of Reporting and Broadcasting Sporting Events (the “Circular”), providing that “CCTV shall be responsible for negotiating and purchasing the right to broadcast significant international sports competitions, including the Olympic Games, the Asia Games, the World Cup and other major sports events in China, and that all other local TV Stations Read More...

Why UniStrong’s Navigation Found Guility of Copyright Infringement against Microsoft?

microsoft(By Luo Yanjie)Our previous post How does Microsoft Settle Its Problems of Software Copyright Infringement in China introduced the difficulties of protecting its rights and interests in China. However, in today’s post, the court decided the trade practices constituted copyright infringement and ruled in favor of Microsoft, thus boosting confidence for all software owners.

Introduction to the Case:

Appellant (defendant at first instance): Beijing UniStrong Science & Technology Co., Ltd (“UniStrong”)

Respondent (plaintiff at first instance): Microsoft

Court of first instance: Beijing No.1 Intermediate People’s Court  No.: (2011)一中民初字第12617号

Court of second instance: Beijing Higher People’s Court  No.: (2013)高民终字第2263号

Microsoft is the Read More...

Is It Illegal for the SARFT to Prohibit Installing Youku and Iqiyi in Internet Cable Box?

Is It Illegal for the SARFT to Prohibit Installing Youku and Iqiyi in Internet Cable Box?

–Analysis on the Prohibition of Installing Youku App and Iqiyi App on the Internet Cable Box

 

广电总局(By You Yunting) According to some media reports, the State Administration of Press, Publication, Radio, Film and Television (the ”SARFT”) issued a rule to local administrations requesting to delete Youku App, Iqiyi App, Sohu App and browsers from Wasu Box and Internet cable Set-top boxes (the “boxes”), which enables users to support TV, games, online video, music and photos. At first glance, i was astonished how it could be called boxes if without Youku App, Iqiyi App and browsers. However, Hangzhou Wasu Digital TV Media Group confirmed receiving the rule shortly after the reports came out. That being the condition, we would like to analyze the rule.

The rule relies on the Demands for Management Concerning Operation of Institutions with Internet Television Licenses (the “Demands”), stipulating that “institutions integrated Internet and television shall be designed to Read More...

Supreme Court Determined Trademark Non-infringement for Using Prior Enterprise Name with Good Faith

(By Luo Yanjie) Both the enterprise name and the trademark distinguish the sources of goods or services, so that in practice they may conflict with each other. However, trademark, an exclusive right, has functions so as to prohibit others from using it as enterprise name. Under some circumstances, the enterprise name can coexist with the trademark. In today’s post, we would like to introduce such a case.

Introduction to the Case:

Retrial Applicant (Plaintiff at first instance, appellant at second instance): Yinchuan Buma Trading Co., Ltd (the “Yinchuan Buma Trading”)

Retrial Respondent (Defendant at first instance, respondent at second instance): Dazhou City Kaida Business Hotel

Court of final appeal: Sichuan Province Higher People’s Court  No.: (2012)川民终字第119号

Court of retrial: Supreme People’s Court  No.: (2012)民申字第1543号

Dazhou City Kaida Business Hotel (translated from “凯达商务酒店”) was established on June 27, 2006 within the business scope of hotels, Chinese food, tea and bathing services. On September 28, 2007, Wang Hongjuan was approved to obtain the No.4153971 “凯达” (the Read More...

Traditional Media shall Enhance Themselves against Internet Infringement

toutiao(By You Yunting) According to news media’s reports, the National Copyright Administration of China (the “NACA”), State Internet Information Office (the “SIIO”), Ministry of Industry and Information Technology (the “MIIT”) and the Ministry of Public Security (the “MPC”) recently initiated the 10th special campaign dubbed “Sword Net Action” against online piracy and infringement, centered on cracking down on some websites’ unauthorized reprint from traditional media. This “Sword Net Action” could be better for traditional media, but governmental action gradually has different stages. Traditional media must improve practicing skills in the legal campaign against new Internet media.

It results from the disagreement with copyright for the works of news.

An entrepreneur of a news mobile app recently asked me if the Copyright Law stipulates copyright for the works of news, if the news is made to spread around the world, and why reprinting the news must be authorized. Actually these questions show us some public’s knowledge that it is contradictory between the news’ broadcasting and its authorization. According to the laws, the Read More...

Beijing Intermediate Court Published Its First Preservation Injunction Against Baidu

360诉百度(By You Yunting) The Chinese internet industry is a fiercely competitive one in which many large internet companies have used lawsuits to gain a competitive advantage. Lawyers are engaged by internet companies to fight against their competitors using any new laws and regulations that might offer opportunity. In the most recent unfair competition litigation Qihoo 360 v. Baidu, Qihoo 360 applied for a litigation injunction to prevent Baidu engaging in infringement. On May 23, 2014, the Beijing No.1 Intermediate People’s Court issued its first litigation injunction since the new Civil Procedure Law came into effect.

Introduction to the Case:

Plaintiff: Beijing Qihoo 360 Technology Co., Ltd (the “Qihoo 360”)

Defendant: Beijing Baidu Network Information Technology Co., Ltd (the “Baidu”)

Court: Beijing No.1 Intermediate People’s Court

On April 1, Qihoo 360 filed an unfair competition lawsuit to the Beijing No.1 Intermediate People’s Court. Qihoo 360 alleged that when Read More...