Author Archives: You Yunting

Analysis on the Data of Microsoft’s Combat against IPR Infringement

On 23rd February 2012, an article Michael Jordan Wants Respect for his Brand in China in Business Week reported Michael Jordan’s lawsuit against China Qiaodan Sports in China, and said that “After all, China is notorious as a haven for intellectual property rights (IPR) piracy. Microsoft (MSFT), to name just one example, has struggled for years to fight against unauthorized versions of Windows and Office. What makes Michael Jordan think he can succeed where Bill Gates has failed?”

But on 21st March, Mr. Simon L. K. Leung, Chairman and CEO of Microsoft China stated on the interview by Wallstreet Journal that the situation is improving and he credited a campaign against piracy led by China’s Ministry of Commerce, and said an increasing number of state-owned enterprises are using licensed software.

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Opinions on E-Commerce’s Unauthorized Change to Consumers’ Comments

Case: A noted Chinese E-commerce website is recently charged with unauthorized modification to customer’s comments on the product sold.(note: the link is in Chinese) A newly bought mobile phone was found used by a consumer from Hangzhou City, who afterwards gave a poor comment on the product. Surprisingly to him, his comment was then changed to satisfy one a month later, for this the consumer only got the reply from the website that it’s a misoperation. Actually, it’s not an individual case in recent. (the image is the logo of 360buy.com, a main B2C website in China)

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Interpretation on New Compulsory Licensing for Patent Implementation Rule

China State Intellectual Property Office (SIPO) issued its No. 64 order on 15th March, 2012 to announce the promulgation of the newly revised Measures for the Compulsory Licensing for Patent Implementation (the “Measures”). The most attention catching point is the amendment of medicine patent compulsory licensing. Then, what are the specific provisions? And is there any amendment else deserve you focus? Today, we will make a brief introduction for you. (the image is the picture of Tamiflu once applied for compulsory licensing in China)

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SIMENS Benefits: A Breakthrough of the Legal Compensation Limit on Pirate Software Litigation

As reported (note: the link is in Chinese), SIMENS PLC Software won the copyright dispute over its software against Excelstor Technology (Excelsor), a company headquartered in Shenzhen, in Shenzhen Intermediate People’s Court, with a sentence to stop the infringement and compensation of 1.16 million yuan for the infringement. There are two eye catching points in this case: 1) the court aided SIMENS in evidence preservation to detain the computers of Excelsor’ s design department, which are detected of NX Unigraphics copyrighted by SIMENS, and that is rare in the cases of this kind; 2) the judged compensation surpassed the legal limit. The post today mainly focuses on the 2nd point. (the image today is the logo of SIMENS)

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Legal Problems on RIM’s Recent Combat on Trademark Infringement in China, II

III. The differences between the act of refurnishing mobile phones and crime of counterfeiting registered trademarks

The crime of counterfeiting registered trademark specified in the Article 213 of the Criminal Law ( the “Article 213”) refers to whoever, without permission from the owner of a registered trademark, uses a trademark which is identical with the registered trademark on the same kind of commodities shall, if the circumstances are serious, be sentenced to fixed-term imprisonment of no more than three years or criminal detention and shall also, or shall only, be fined; if the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined . (the image is the genuine Blackberry and genuine Blackberry)

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Legal Problems on RIM’s Recent Combat on Trademark Infringement in China, I

The Conduct of Making and Selling Refurnished Mobile Phones Constitutes Crime of Counterfeiting Registered Trademarks?

After I read the article wrote by reporter Mr. Nie Shihai from the Judicial View on the First Case of Counterfeiting Trademark BlackBerry (the “Judicial View”) explaining and analyzing the decision made by the court from the aspect of jurisprudence, which is published in The China IP of 2011 February, I got contact with the editor due to my doubts about the sentences and finally I got the criminal sentences of the first instance and second instance. Through reading the sentences, I think the conduct of making and selling refurnished mobile phones doesn’t constitute the crime of counterfeiting registered trademarks for the following reasons.

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MOC Issues New Rule for Trade Secret Protection in Commercial Franchise

Recently, the Ministry of Commerce released the revised “Measures for information disclosure of commercial franchising” (the “Measures”) which will come into effect from 1st April. Compared with the past regulation, the most attractive part is the confidentiality responsibility of the franchisee, and the new regulation consists two main parts as follows（the image today is the logo of McDonald’s and Subway, the major franchisors in China）:

1, The franchisee shall not disclose or improper use any trade secret accessed to him/her when negotiating on the agreement, no matter whether the agreement is concluded or not;

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How to Label Patent Mark Correctly in China?

In Recent, State Intellectual Property Office of China (“SIPO”) issued its No.63 order for the promulgation of Measures on the Labeling of the Patent Marks (the “Measures”) on its website, the Measures modifies the past Provisions on the Methods for Labeling the Patent Marks and Patent Numbers (the “Provisions”) and will come into effect from 1st May of 2012. (the image is the certificate of patent in China)

Today, we will introduce you how to label your patent marks in China under the new Measures, and its new provisions.

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Does Combination of Youku and Tudou breach China Anti-monopoly law?

Reportedly(the report is in Chinese), the two Chinese leading video websites, Youku.com Inc. (NYESE: YOUKU) (“Youku”) and Tudou Holdings Ltd. (NASDAQ: TUDOU) (“Tudou”) jointly announced today that on 11th March, 2012, they have signed a definitive agreement for the combination of Tudou and Youku in a 100% stock for stock transaction, which has been approved by each party’s board of director but still waiting for the shareholders’ approval, and is planned to be completed in the third quarter of 2012.I think, it shall be noted that some anti-monopoly issues may be arisen from the combination of the two Chinese biggest video websites, which possibly resulting adverse impacts on the rights and interests of consumers and fair competition.

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A Compromise between Michael Jordan and Qiaodan Sports?

Reportedly (Note this report is in Chinese), Michael Jordan, the star sportsman of NBA, recently made a statement that Qiaodan Sports Co., Ltd. (“Qiaodan Sports”) is suspected of infringement on his right of name, and he had initiated the legal proceeding in the People’s Court of China. And by the late news, the Shanghai Second Intermediate People’s Court has accepted this case. It is reported (Note this report is in Chinese) that the Qiaodan Sports has been approved by the Issuance Examination Committee of Shanghai Stock Exchange (SSE) to issue 11.25 million shares collecting RMB 1.06 billion, which would be issued publicly upon the future approval of China Securities Regulatory Commission (CSRC). (the image above is the trademark information retrieved from the trademark office of PRC)

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China Copyright Protection Law Enforcement Statistics 2010

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On 1st March, 2012, the State Copyright Office issued the statistical table on the copyright protection law enforcement in China of 2010. The last time we saw the table was in 2009 of the statistical table on the 2008 copyright protection law enforcement.

As shows in the table, the law enforcement on the copyright protection has been strengthened a lot, with a vast increase in the amount of administrative punishment, cases transferred to the police, the penalty amount, etc. And the detailed information is as follows:

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Why Starbucks Lost in Trademark Objection Adjudication in China?

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According to the news from local media in China, Starbucks Corporation (NASDAQ: SBUX) recently filed a lawsuit against the Trademark Review and Adjudication Board (the “Board”), for it was refused by the Board for the application of the review of 沙巴克 (which is similar to the Chinese translation of Starbucks 星巴克 in Chinese) trademark application on mineral water products(沙巴克is similar to the translation of Starbucks 星巴克 in Chinese). 沙巴克 was applied by an individual  on 16th July of 2003 on the mineral water beverage, which in Starbucks Corporation’s opinion shall constitute the similarity of identity of its local trademark of 星巴克, and therefore, Starbucks Corporation filed a trademark review to the Board and also applied a official establishment of the well-known trademark of 星巴克 in the field of Café, Café operation & service and coffee beverage.(the image above is the Starbucks café and the poster of the World of Legend)

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WIPO: ZTE and HUAWEI of China Rank First and Third in PCT Application of 2011

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By the news of 6th March, WIPO released the statistics on the PCT application in 2011 global wide, among which ZTE Corporation of China with 2,826 published applications overtook Panasonic Corporation of Japan (2,463) as the top PCT applicant in 2011. Huawei Technologies, Co. of China (1,831) ranks third.

Despite difficult economic conditions, international patent filings under the WIPO-administered Patent Cooperation Treaty (PCT) set a new record in 2011 with 181,900 applications – a growth of 10.7% on 2010 and the fastest growth since 2005. China, Japan and the United States of America (US) accounted for 82% of the total growth. In 2011, the patent application in China saw a growth of 33.4 on 2011, the fastest growth among all, and totaled 16, 406; a growth of 8% in U.S.A totaled 48, 596 and a growth of 21% in Japan totaled 38, 888.

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Comments on the Trademark Squatting of HERMES

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Another Lesson from the Negligence of Trademark Localization

It’s reported (note: the link is in Chinese) that the well-known luxury brand HERMES INTERNATIONAL has registered its international trademark of HERMES in China as early as in 1985, while its official Chinese name 爱马仕 is unregistered. While, on the other hand, Dafeng Garment (the “Dafeng”), a clothing company admitted in Foshan City of Guangdong Province registered the Chinese trademark of爱马仕 in September of 1995, though it was disputed later in 1997 and 2001, Dafeng still owns the right of the trademark. In 2009, HERMES INTERNATIONAL registered爱马仕 in the class of tie manufacture, which was refused by the trademark office and remained rejected by the Trademark Review and Adjudication Board (the “Board”) after the review procedure. After that HERMES INTERNATIONAL filed the lawsuit against the Board, but finally the court supported the decision made by the Board.

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Why Shenzhen Proview Will Not Be Bankrupt Immediately?

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According to the report from the Beijing News (note: the link is in Chinese), Shenzhen Proview, the company battling against Apple in the iPad trademark dispute has been applied for bankruptcy clearance by its debtor Taiwan Fubon Insurance (Fubon), who first applied for the bankruptcy to Shenzhen Intermediate Court in June of 2011 and sent the written notice to urge the acceptation on 20th February, 2012.

According to the Enterprise Bankruptcy Law, “where an enterprise legal person fails to pay off its debts, and that if its assets are not enough to pay off all the debts or if it is obviously incapable of paying off its debts, its debts shall be liquidated in accordance with the provisions of the present Law.” That is to say the bankruptcy could only be applicable when the company’s assets are not enough to pay off its debts or it’s obviously incapable to pay off its debts. In the case, it’s arguable to say Shenzhen Proview is under such situations. For one hand, Fubon claims Shenzhen Proview has not made the payment on its debt and seems to be incapable to make the payment, while on the other hand, Shenzhen Proview disclaimed the accusation and insisted the iPad trademark is valuable enough to clear all the debt once it could be realized, and therefore it shall not be liquidated under the bankruptcy procedure.

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