China Laws and Regulations Update in September 2014

1.The PRC State Administration of Foreign Exchange releases the Notice on the Pilot Reform of the Administrative Approach Regarding the Settlement of the Foreign Exchange Capitals of Foreign-Invested Enterprises in Certain Areas

On 4 August 2014, the PRC State Administration of Foreign Exchange released the Notice on the Pilot Reform of the Administrative Approach Regarding the Settlement of the Foreign Exchange Capitals of Foreign-Invested Enterprises in Certain Areas to launch the pilot reform of the settlement of the foreign exchange capitals of foreign invested enterprises on a discretionary basis in 16 areas throughout the P.R.China, including the Suzhou Industrial Park, on 4 August 2014, after such reform was first launched in the Shanghai Free Trade Zone.

In addition, according to the Notice, the uses of the foreign exchange capitals of foreign invested enterprises and the RMB capitals acquired through the settlement of such foreign exchange capitals are restricted, and the payment management, the management of settlement and use of the capitals in foreign accounts for direct investment and the post-supervision of the PRC State Administration of Foreign Exchange are standardized.

Website of the State Administration of Foreign Exchange:

Read More...

Judgment Abstract on NDRC’s Administrative Decision of Zhejiang Insurance Association in China

(By You Yunting) By reports, recently, National Development and Reform Commission (the “NDRC”) investigated the industry group the Zhejiang Insurance Association and its membership insurers, originated from that the Zhejiang Insurance Association in violation of the Anti-Monopoly Law organized its 23 membership insurers to agree on unified commissions from auto insurance premiums through meetings. The NDRC fined 22 of the insurers a total of RMB 110 million. Today, we will introduce the NDRC’s Punishment Decision on Zhejiang Insurance Association and make some comments.

Introduction to the Case:

Respondent: Zhejiang Insurance Association

Reference:  发改办价监处罚[2013]7号

Since 2009, Zhejiang Insurance Association organized all insurers in Zhejiang Province to revise the Zhejiang Province Motor Vehicle Insurance Discipline and its implementing rules through meetings and revisions through meetings and revisions, to agree on and carry out on an agreement of fixing commercially motor insurance fees

Based on the aforesaid analysis on illegal facts, the NDRC held that the respondent is in violation Read More...

Judgment Abstract on NDRC’s Administrative Anti-Monopoly Decision of PICC Zhejiang Branch’s Impunity in China

NDRC(By You Yunting) By reports, recently, National Development and Reform Commission (the “NDRC”) investigated the industry group the Zhejiang Insurance Association and its membership insurers, originated from that the Zhejiang Insurance Association in violation of the Anti-Monopoly Law organized its 23 membership insurers to agree on unified commissions from auto insurance premiums through meetings. The NDRC fined 22 of the insurers a total of RMB 110 million, with PICC Property and Casualty Company Limited Zhejiang Branch, an insurer, escaping punishment because of informing the authorities and providing key evidence. In today’s post, we will introduce the decision on PICC Property and Casualty Company Limited Zhejiang Branch escaping punishment and make comments.

Introduction to the Case:

Party: PICC Property and Casualty Company Limited Zhejiang Branch (the “PICC Zhejiang Branch”)

Reference:发改办价监免[2013]4号

Since 2009, under the organization of the Zhejiang Insurance Association, PICC Read More...

Analysis on New Provision of Agent’s Trademark Rush-Registration in China Trademark Law

(By Luo Yanjie) According to the latest news report, more than 14 millions of trademark applications in China have already been filed by June 2014. It indicates that Chinese economy develops very fast and also that brands across China and even all over the world, big or small, are attempting to the protection of trademark registration in China. However, there is no doubt that some trademarks were registered with bad faith at the beginning, i.e., pirate trademark rush-registrations. Among those trademark rush-registrations, some of rush-registrars are connected to the original holders, thus leading to prevention from agent’s trademark rush-registration as regulated in Article 15 of the Trademark Law (2001 version). Furthermore, in the newly applicable Trademark Law from May 2014, legislature departments made implementation on the Article 15. In today’s post, we will discuss the modification and its application.

1.   Modification of Article 15 in the 2013 Trademark Law

The 2001 version of Trademark Law stipulates that, in the event that an agent or representative seeks Read More...

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

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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.

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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...