Author Archives: You Yunting

Latest Patent Law Revision Exposure Draft from SIPO

The State Intellectual Property Office (SIPO) published the exposure draft of the amendment to patent law on 9th August 2012. In this draft, we could find only some clauses are revised, and the followings are the articles translated by us for your reference.

The existing articles

The articles in the exposure draft
Article 46 The patent review board shall examine the request for declaring a patent right invalid and make a decision in a timely manner and notify the requesting person and the patentee of its decision. The decision on declaring a patent right invalid shall be registered and announced by the patent administration department under the State Council.

A person that is dissatisfied with the patent review board’s decision on declaring a patent right invalid or its decision on affirming the patent right may take legal action before a people’s court, within three months from the date of receipt of the notification. The people’s court shall notify the opposite party in the invalidation procedure to participate in the litigation as a third party.Article 46 The patent review board shall examine the request for declaring a patent right invalid and make a decision in a timely manner and notify the requesting person and the patentee of its decision.

READ MORE

Which Part of Medical Instruction Could be Protected by China Copyright Law?

By Luo Yanjie

In recent, the Supreme People’s Court of China asked for public opinions on “judicial protection on the medical instruction’s copyright and the definition of its legal boundary”. The lawyers of our website are confronted with the same problems in practices: shall the instruction be protected by the copyright law? So, in today’s post, we would like to share our opinions on the copyright protection of the insert with the reference to our past cases and experiences.

I. Could the instruction be the works on law?

READ MORE

Export Rebate: The Secret to the Cheaper Made-in-China Product Selling Outside China

It’s widely known that made-in-China products are selling at a cheaper price outside China, not only the OEM articles like Nike, but the China based Lenovo also follow that pricing. There are many reasons contributing to the different price, including pricing strategy, logistic cost, office rent, taxation and even the change or exchange rate. IN this essay, we prefer to discuss the cause of a cheaper price of the same article overseas from the aspect of tax rebate.

I. VAT rebated in export

To take the Nike shoes as the instance, when Nike plants export the shoes, China taxation authority will rebate the paid VAT occurred during the process of production and circulation before the export, and that’s called the “export tax rebate”. So, let’s first take a look at how many taxes shall be paid within Nike shoes’ manufacture and circulation before the export.

READ MORE

China Arbitration War: CIETAC Announced Its Shanghai Brunch Illegal

 By Albert Chen

China International Economic and Trading Arbitration Committee (CIETAC), the well-known China based international arbitration chamber, has been on the front page of local medias these days for it hearing the trademark dispute of Wang Lao Ji and the chamber’s internal strife. And by the latest news known to us, CIETAC holds the currently heard or adjudicated cases by its previous Shanghai Branch may face the risk of invalidity.

I. The conflict

The battle was triggered by the publishing of the chamber’s new rules of association and the arbitration rules (the “new rules”), which was rejected by CIETAC Shanghai Branch with the defenses that vote of the new rules did not base on the most wills. Moreover, to Shanghai Branch’s opinions, the clauses of the new rules also damage the free will to choose the arbitration committee and hearing place, and considering the vastly improved arbitration fees and the applicable scope of the sole arbitrator hearing. What’s worse, the new rules may also jeopardize the independence of the Shanghai Branch. For these reasons, Shanghai Branch stated on 4th May (Note: the link is in Chinese) of 2012 to denounce CIETAC and restate it as an independent committee.

READ MORE

The Latest Laws and Regulations of July, II

V. The Ministry of Finance Issued the Provisions on Handling Accounting of the Pilot Enterprise Levied VAT instead of Business Tax ( the” Provisions”)

On 17th of July, 2012, the Ministry of Finance issued the Provisions to coordinate the implementation of the pilot work of changing levy of Business Tax to VAT.

(From the website of the Ministry of Finance)

VI. The second Draft of Revised Copyright Law has been Issued for Public Opinions

On 6th of July, 2012, the National Copyright Administration issued a notice on the second draft of revised Copyright Law of People’s Republic of China for public opinions (the “Notice”). According to the Notice, since the issuance amendment draft of Copyright Law on 31st of March, 2012, lots of opinions and advices have been proposed by the public, based on which the National Copyright Administration revised and promoted the amendment draft. Additionally, a brief description was issued together with the amendment draft, according such brief description, the revised contents covers the content of copyright, the right of audio-visual performers, performer and recording producer’s right to receive remuneration based on the broadcast of recording production and performance, statutory license, fair use and other aspects. The deadline for the second draft for public opinions is 31st of July, 2012.

READ MORE

The Latest Laws and Regulations of July, I

I.  From 1st of August, 2012, Export Enterprises won’t be Required to Go through the Formalities of Collection, Verification, Writing-off of Export Proceeds in Foreign Exchange

The State Administration of Foreign Exchange, the General Administration of Customs and the State Administration of Taxation jointly issued the Announcement on Reform concerning to Foreign Exchange Administration System of Goods Trade, and the reform will be implemented nationally on 1st of August, 2012. Reportedly, from 1st of December, 2012, the reform has been piloted in 7 provinces such as Jiangsu, Shandong, etc.. The reform covers the administration method including the cancellation of paper of collection, verification and writing-off of export proceeds, no need to go through the formalities of collection, verification and writing-off of export proceeds; implementation of dynamic sort management referring to classifying the enterprises into 3 sorts according to the compliance and the consistency of export and import of goods; and adjustment to declaration process for export, etc.. Meanwhile, the State Administration of Foreign Exchange has delivered new laws and regulations for administration of foreign exchange of goods trade to the local departments of foreign exchange and banks authorized to deal with foreign exchanges, accordingly the old documents are abolished.

READ MORE

Will Alcohol Trademarks Implying Them the State Liquor Be Registered in China?

By Albert Chen:

By the latest trademark gazette of State Trademark Office of China on 20th July of 2012, “Guo Jiu Mao Tai”, which implies it the state liquor, has come through the preliminary examination and has been published. The news soon agitated the argument among the industry and academic circle, and other brewers like Feng Jiu (SSE:600809) and Luzhou Laojiao (SZSE: 000568) have all expressed their oppositions on it and planed to block the registration of “Guo Jiu Mao Tai”.

As retrieved on the state trademark website, I find it’s not the trademark’s first application. Early in 2011, the applicant China Kweichow Moutai Distillery Co., Ltd (the “Maotai Company”) tried to register the trademark, yet it was refused by the authority and the same for the follow on 5 applications. The current preliminarily approved marks are concentrated in Class 33, covering the fruit wine, Bitter, wine, aperitif, spirit, and alcohol beverage excluding beer, etc.

READ MORE

Is the Second-paid Right of Audio-visual works in Draft Copyright Law Feasible?

On the 6th of July, the State Copyright Bureau published the second copyright law revision draft (hereinafter referred to as “the second draft”), which removed the “phonograms compulsory license” clause and the collective management organization’s “extended management” clause those are controversial in the first draft. The removal is welcomed by right people. In spite of this a new rule in the second draft caused controversy by the Movie Company and investors which is so-called “second paid right” of right people and related individuals. Industry insiders point out, the rule of “second paid right” will lead to the circulation payment which will increase the cost indefinitely. It will cause a negative effect to movie industry’s development. Today, we would like to introduce the rule of “second paid right” and share ideas as follows:

READ MORE

Apple Finally Gets its iPad Trademark in China

Posted on by

According to China Trademark Office’s latest ” Announcement of Trademarks “, the iPad trademark, which used to owned by Shenzhen Proview were formally transferred to Apple on July 27, 2012. And by Chinese Trademark Law, Apple could exercise the exclusive right over the trademark from the day.

As we reported last week :

Grandall Law Firm, GH Law Firm, Hejun Vanguard Group and other units providing legal or agency service to Proview applied to Shenzhen Yantian People’s Court in written for freezing of iPad trademark in China on 23 July,2012, also they have submitted the guarantee of RMB 300 million.

READ MORE

Will Lashou Lose its Trademark Battle after Apple?

Posted on by

—Analysis on Lashou trademark dispute

By Luo Yanjie

According to a recent news report (note: the link is in Chinese), Lashou Company, the largest daily deal website in China, owns the right of Chinese trademark “拉手网”, but the English trademark “lashou” is owned by “Shenzhen Harmonious Network Limited ” (the former Shenzhen Qiandao Ecommerce Ltd, hereinafter referred to as Shenzhen company) who applied the trademark in February of 2012, 2 months earlier than Lashou company. Shenzhen declared that the company may defend its legal interests. In addition, due to the “lashou” trademark is now of the ownership of the Shenzhen company, we have also noticed the concerns of the continuing use of lashou.com by Lashou Company.

READ MORE

Proview’s Lawyer Applied for Freezing iPad Trademark Transfer

Posted on by

By You Yunting

We have reported that the iPad trademark battle in China has come to its end, with Apple paid the reconciliation fee of $ 60 million to Shenzhen Proview. But the story seems to not end there, Grandall Law Firm, the attorney of Shenzhen Proview filed a lawsuit to local people’s court on 23rd July demanding the lawyer’s fee of $ 2.4 million.

And as said by the latest news of the case, Grandall Law Firm, GH Law Firm, Hejun Vanguard Group and other units providing legal or agency service to Proview applied to Shenzhen Yantian People’s Court in written for the freezing of iPad trademark in China, also they have submitted the guarantee of RMB 300 million.

READ MORE

Why to Protect Legal Benefits of Units in Labor Disputes?

Posted on by

By You Yunting

Recently, following a disputed labor case I have noticed an inadequate protection of the unit by the existing laws and regulations, and such inadequacy has made an unfaithful employee gain immoral advances from such inadequacy in the case, and on the other hand, hundreds of innocent labors may suffer losses from this. So, we would like to put the case in discussion now:

A senior employee asked for sick leave of 1 year (it was found afterwards that the hospital has never prescribed medicine after the issuance of the medical certificate, yet the hospital also refuses to admit involvement in the false sick leave), contrary to this the employer later found that the employee was actually running her own company then entrusted lawyers to investigate it. After the check of the registered information of the suspected company, the employee was proven to be the general manager. Meanwhile, the lawyer also contacted the employee in the name of business contact through the contact telephone number on the home page of the company, which further confirmed the employee’s service with the company. The call was notarized.

READ MORE

Cartier sues Walmart’s Yihaodian of Trademark Infringement and Non-fair Competition

Posted on by

—Complementation between Anti-unfair Competition Law and Trademark Law

By Luo Yanjie

Anti-unfair competition law, trademark law, Walmart, Cartier, Yihaodian, yihaodian.com, Yihaodian being charged, Cartier sues Yihaodian, malicious competition in market, unfair-competition infringement, trademark infringement, trademark lawyer, trademark infringement definition, establishment of unfair-competition, legal protection of trademark in unfair competition law, false propaganda, revision of anti-unfair competition law, completion of anti-unfair competition law,

READ MORE

Can Sound or Smell be registered as Trademarks in China?

Posted on by

—the introduction to the registerable trademarks in China

By You Yunting

As a news report (note: the link is in Chinese), Apple applied the trademark protection for the start up sound of its Mac in USA and Europe. The protection of sound trademark is on the front of the theory research, and in many situations, the sound is protected through copyright law. So far, to register the sound as mark in China is of no legal ground. Meanwhile, in the latest revision of the Chinese Trademark Law, we notice the suggestions to add sound as legal sort of trademark, which was objected by some experts. According to the schedule of the legislation in China, the latest Trademark Law could be issued in this October as soonest, and then we could find the answer to proposal. Today, we will introduce you the sorts of trademarks to be applied in China.

READ MORE

Proview Was Charged by Its Lawyer for Fee Payment Failure

Posted on by

By You Yunting

According to a news report (note: the link is in Chinese), the iPad battle in China has ended in reconciliation with Apple’s payment of 60 million dollars to Proview by the agreement. However it seems that Proview will soon be trapped in another dispute afterwards and related to the battle, its agents of Grandall Law Firm (the “Grandall”) filed a lawsuit to the local court on the 23rd of July, demanding the professional fee of 2.4 million dollars.

As introduced by the attorneys from Grandall, their entrustment by Shenzhen Proview was on a contingent fee, by which it could gain 4% of the total conciliation expenses or the compensation (namely 2.4 million dollars by the final settlement agreement). Also all the litigation fee or expenditures paid for custom record in the trademark battle was firstly paid by Grandall. However, after the end of the dispute, Proview refused to cash the fees into Grandall’s account as agreed and has even collected the money paid by Apple at the end of June.

READ MORE