Pursuant to the Anti-Monopoly Law, the Civil Procedure Law and the Arbitration Law, there is no limitation of applying arbitration clause as a settlement to monopoly disputes in China. The Arbitration is well acknowledged for its confidentiality, flexible legal or commercial basis of arbitrating and its finality of one award, which are perfectly adapted to the requirements of confidentiality, efficiency and reliance on customs in business operation. Therefore, the practice of arbitration clause can bring about significant values and meanings to commercial subjects, and furthermore help indicate various risks and opportunities of different timing in relevant market. In this essay, we will introduce relevant cases and investigate whether the judicial opinions on arbitration clauses applied in monopoly disputes are appropriate.
1.Catalogue of Industries for Guiding Foreign Investment (Revised Edition 2017)
Promulgated by the National Development and Reform Committee
File No. No.4 Order of the NDRC
Promulgation date: 28th June 2017
Effective date: 28th July 2017
The Catalogue of Industries for Guiding Foreign Investment (Revised Edition 2017) first introduced the negative list for foreign investment access, containing 63 articles about restrictions and prohibitions, decreased by 30 articles compared with the 2015 edition. The Catalogue shall be the basis on which the pre-establishment national treatment and negative list administration model is implemented. No measure should be taken to restrict foreign investment access to any area outside the scope of the negative list. The new Catalogue further relaxes the restrictions on foreign investment access to service, manufacturing and mining industries and especially abolishes the restrictions on foreign investment access to industries of oil and gas for special use, precious metals, lithium ores, etc. (Source: Website of the National Development and Reform Committee)
(By Ning Tinggang) Beijing Intellectual Property Court recently introduced some movie, TV series, music, animation and game related cases it heard in 2015 and 2016 via its public WeChat platform, including the trademark “Kuroko Basketball” invalidity case which inspired me. The way that the court dealt with this case shows a new trend of protecting merchandizing interests which we legal professionals should pay attention to.
Kuroko Basketball is a popular comic work about basketball created by ふじまき ただとし, a Japanese comics artist. The work was serialized on the magazine SHONEN JUMP published by Shueisha since the second issue in 2009, and then was adapted for an animation and first broadcast on 7th April 2012. The plaintiff, SL Sport Ltd. in Kaiping (“SL Company”), filed a trademark-register application to the trademark office on 19th July 2012. As approved, this trademark (“Disputed Trademark”) should be used under Class 25. In addition, SL Company registered tens of trademarks closely connected with popular comics works such as Kuroko Basketball and SLAM DUNK that Shueisha had published, including trademarks used under Class 18, 24, 25, 35 and other types of commodities or services. Thus, Shueisha filed a request for declaration of invalidity of the Disputed Trademark.
1.Circular on Special Administrative Measures for the Access of Foreign Investment to the Pilot Free Trade Zone (Negative List) (for 2017)
The revised edition is intended to further improve the access for foreign investment. The new negative list consists of 15 categories, 40 sub-categories and 95 special administrative measures, with 10 sub-categories and 27 measures removed from the negative list 2015, including 6 sub-categories with respect to subway equipment manufacturing, pharmaceutical manufacturing, road transport, insurance, accounting and auditing and other business services removed and 4 sub-categories combined with other sub-categories. The Special Administrative Measures on Foreign Investment Access to the China (Shanghai) Pilot Free Trade Zone (Negative List) published on 8th April 2015 was abolished at the same time.
1.The Supreme People’s Court and the Supreme People’s Procuratorate Give the Clarification of Several Issues on Dealing with Criminal Cases of Personal Information Infringement
The Clarification consists of 13 articles to clarify the definition of “personal information”, the decision making criteria on unlawful “provision of personal information”, the conviction criteria on personal information infringement, etc. Article 2 thereof states that violation of laws, rules and bylaws governing the protection of personal information should be deemed as “violation of applicable national laws” specified in Article 253.1 of the Criminal Law.
1.The State Administration for Industry and Commerce Releases the Opinions on Making the Registration Process More Efficient and Reforming the Registration of Business Names System
In order to deepen the business system reform, make the process of registering business names (including names of farmers’ cooperatives and individually owned businesses) more efficient and reform the registration of business names system, the State Administration for Industry and Commerce released on 19th April 2017 the Opinions on Making the Registration Process More Efficient and Reforming the Registration of Business Names System, opening the database of business names and related services.
（By Albert Chen）Last year Beijing Intellectual Property Tribunal dealt with an infringement case involving a QQ group and made the same decision as the first-trial court that the group’s administrator should be responsible for the infringement, but with different reasons. Detailed analysis of differences in the reasons for decision given by the two courts will help you answer the question of whether the group administrator should be brought to account for direct or indirect infringement.
1.The National People’s Congress Votes to Adopt the General Principles of the Civil Law of the People’s Republic of China
On 15th March 2017 the National People’s Congress voted to adopt the General Principles of the Civil Law of the People’s Republic of China which will take effect on 1st October 2017.
The new General Principles of the Civil Law includes new provisions on inheritance rights of a fetus, boundaries of limitation on capacity for civil conduct, legal entities, statutes of limitations, etc.
1.The State Council Issues the Notice on Active Measures to Expand Opening Up and Use Foreign Funds
On 17th January 2017 the State Council issued the Notice on Active Measures to Expand Opening Up and Use Foreign Funds in order to clarify opening up and foreign fund use policies and create a fair and favorable market environment.
(Source: Website of the Central Government)
2.The State Administration for Industry and Commerce Publishes the Opinions on Comprehensive Promotion of the Simplified Registration Cancellation Policy
(By Wang Ting) In China, the Trademark Law applies the Principle of First Filing and when the Trademark Office reviews these applications, they usually examine whether there are prior applications or registrations existed, but not the intentions of filing such prior registrations. It means they don’t consider the bad faith during trademark registration procedure. Many foreign companies have applied and obtained the trademarks for their own products and services at the beginning. However, as so-called villains can always outsmart, besides the malicious registrations of others’ un-registered trademarks, there are lots of cases in which the trademark squatters register the well-known or popular trademarks on different goods or services. Thus foreign companies suffered from such consequences. Today, in our introduced case, we are going to discuss about the situations that the acts of malicious registrations under different classes are finally determined as improper means as stipulated in the Trademark Law.
1.The State Council Issues the Administrative Rules on the Approval and Filing of Enterprise Investment Projects
On 14th December 2015 Li Keqiang, the Premier of the State Council signed an order of the State Council to promulgate the Rules on the Approval and Filing of Enterprise Investment Projects which will take effect from 1st February 2017. The Rules further standardize the government acts of approving and filing of enterprise investment projects.
(Source: Website of the Central Government)
(By Wang Ting)Recently the court has approved of the attorney fee up to 1 million RMB in an IPR case, and it is the first time that the court has applied time-based billing to calculate such attorney fee. Meanwhile in this case, the court has also confirmed the principles of determining the attorney fee on three items. Today, we are going to go through this case and discuss about the reasons why the court has fully approved of the attorney fee this time.
Plaintiff: Beijing Watchdata Technologies Co., Ltd (the “Watchdata”)
(By You Yunting) Recently, the Ministry of Culture has issued the Notice of Ministry of Culture on Regulating Online Game Operation and Strengthening Interim and Ex Post Supervision (Referred to as “Notice”), which will be put into effect as of May, 2017. The Notice contains lots of specific policies, including the restrictive policy on providing virtual props and value-added services of an online game by sweepstakes (Referred to as “Item Sweepstakes”), which are the significant sources of profits for game companies. In this article, we’ll discuss whether this policy would affect the incomes of these game companies or not.
(By Yue Mengyan) There are many applicants who register a tremendous number of trademarks without the use-oriented purpose. Moreover, they register trademarks on obvious malicious purpose. In such situation, their enforcement for trademark protection shall be limited and their claims for compensation against trademark infringement may not be favored by the court.
Appellant (Plaintiff at the first instance): Guangzhou Zhinanzhen Exhibition Service Co., Ltd. (the “ZHINANZHEN”)
(By Yue Mengyan) Pursuant to China trademark laws and regulations, if certain trademarks have been already registered for certain goods, applicants cannot apply for such same or similar trademarks for any same or similar products. However, if the trademark coexistence agreement is made by the right holder of prior registered trademark and applicant of an identical or similar trademark without interfering in each other’s interests, then it is possible for the applicant to successfully obtain the approval of such application.