Author Archives: yytbest

China’s Latest Laws and regulations in October 2013, Part II

Posted on by

7. Circular by the General Office of the CPC Central Committee and the General Office of the State Council on Cessation of New Construction of Buildings, Halls and Chambers and Clearing Up Housing for Office Use of Party and Governmental Offices

 

Promulgated on July 23, 2013 by the General Office of the CPC Central Committee and the General Office of the State Council, the Circular on Cessation of New Construction of Buildings, Halls and Chambers and Clearing Up Housing for Office Use of Party and Governmental Offices was created in order to ensure the cessation in every aspect of the new construction of buildings, halls and chambers, and to regulate the management of housing for office use.

READ MORE

China Attempts to Utilize Patent to Protect Graphical User Interface for Software

Posted on by

(By You Yunting) In the epic battle of Apple Inc. v. Samsung Electronics Co. starting from 2011, Apple filed its lawsuit against Samsung in the United States, alleged that Samsung infringed several graphical user interface (the “GUI”). If Apple filed its lawsuit against Samsung in China, however, its complaint regarding infringing several GUI may not be filed because at present China has not accepted applications of patent for GUI. Nevertheless, good news comes that China’s governments are changing their attitude on the application for GUI.

READ MORE

China’ s Latest Laws and regulations in October 2013, Part I

Posted on by

1.Provisions of the Supreme People’s Court on the Procedures of Dealing with Self-Compensation Cases

Promulgated on July 26, 2013 by the Supreme People’s Court, the Provisions on the Procedures of Dealing with Self-Compensation Cases were effective on September 1, 2013.

The self-compensation cases in the Provisions refer to the cases of state compensation handled by a People’s Court where such court is the judicial organ liable for the compensation. The Provisions further indicates that the State compensation groups of primary People’s Courts, and compensation committees of the Intermediate People’s Courts or the People’s Courts of higher level shall each be responsible for the handling of self-compensation cases at the same level. In regard to compensation applications made by a claimant, the People’s Courts shall conduct an examination and file each case in accordance with the Provisions of the Supreme People’s Court on the Work of Case Filing of State Compensation Cases.

READ MORE

Why China Court Believe Google Books’ Scanning of Books Constitute Copyright Infringement?

Posted on by
[`QLB)()1C]KSA}DJ`HN9OK

(By Luo Yanjie)Abstract: The fair use system in China adopts a legislative model of “exhaustive listing”, and many judicial breakthroughs in recent cases appear to be more in conformity with principles of fairness and impartiality. Copyright Infringement against the right of reproduction shall be prohibited. However, an interesting question is whether the infringing party assumes liability for damages in cases where the copyright owner doesn’t actually suffer any losses.

Google Books has triggered global protest and litigation from publishers worldwide. The following is an introduction to a case that developed in China.

READ MORE

Essential points on Writing Noncompetition Clauses In a China Labor Contract

Posted on by

(By You Yunting) In today’s post, our website would like to introduce some essential points in writing noncompetition clauses in a labor contract in accordance with relevant Chinese laws and regulations. Pursuant to the Labor Law, the Labor Contract Law and related laws and regulations, combined with the specific conditions of employing units, when writing noncompetition clauses or agreements, we will pay particular attention to the following points:

I. How to determine the scope of the noncompetition clauses?

READ MORE

Logic and Practical Analysis of Foreign Investment Facilitation in the Shanghai FTZ

Posted on by
1

(By Gong Lier) The China (Shanghai) pilot free trade zone (hereafter called ‘the free trade zone’) was officially launched in Waigaoqiao, Shanghai on 29th Sept. 2013. Attention should be paid to the news that the, i.e., the ‘Negative List’, of the free trade zone was issued at midnight on the same day, on which the five Shanghai municipal governmental rules were also implemented one after another, including the China (Shanghai) Pilot Free Trade Zone Administrative Rules (No.7 municipal government’s order) (hereafter called ‘the Free Trade Zone Administrative Rules’), the China (Shanghai) Pilot Free Trade Zone Foreign Investors’ Funded Projects Filing Rules (H.F.F.(2013) No.71) (hereafter called ‘the Foreign Investors’ Funded Projects Filing Rules’), the China (Shanghai) Pilot Free Trade Zone Overseas Investment Projects Filing Rules (H.F.F.(2013) No.72) (hereafter called ‘the Overseas Projects Filing Rules’), the China (Shanghai) Pilot Free Trade Zone Foreign Investors’ Funded Enterprises Filing Rules (H.F.F.(2013) No.73) (hereafter called ‘the Foreign Investors’ Funded Enterprises Filing Rules’), and the China (Shanghai) Pilot Free Trade Zone Overseas Invested and Incorporated Enterprises Filing Rules (H.F.F.(2013) No.74) (hereafter called ‘the Overseas Invested and Incorporated Enterprises Filing Rules’).

READ MORE

Introduction to the 2013 Trademark Law, Part 2

Posted on by

(By Zhan Yi) On August 30, 2013, the Standing Committee of the National People’s Congress promulgated Decisions of the Standing Committee of the National People’s Congress Concerning Alterations to the Trademark Law of the People’s Republic of China, which shall be implemented on May 1, 2014. Our website previously translated the Full text of 2013 China Trademark Law, we provided a Comparison Version highlighting the differences between the 2001 and 2013 Trademark Law. In today’s post, our website will introduce and discuss the revised content within the 2013 Trademark Law. Without further ado, we will now move on to the second part of our examination of the 2013 Trademark Law.

READ MORE

Introduction to the 2013 China Trademark Law, Part I

Posted on by

(By Zhan Yi) On August 30, 2013, the Standing Committee of the National People’s Congress promulgated the Decisions of the Standing Committee of the National People’s Congress Concerning Alterations to the Trademark Law of the People’s Republic of China, which shall be implemented on May 1, 2014. Our website has already translated the Full text of 2013 China Trademark Law in a previous post, and compiled and provided a comparative version highlighting the differences between the 2001 Trademark Law and 2013 Trademark Law. Starting with today’s post, we will introduce and discuss the most important revisions and changes found in the 2013 Trademark Law. In today’s post, we will introduce the first part.

READ MORE

Why did the Court not Approve the Trademark Coexistence Agreement?

Posted on by
图片1

（By Luo Yanjie）Abstract: Current laws have no provisions as to whether a trademark coexistence agreement made by and between the trademark holder with a prior trademark and the trademark applicant with a latter trademark could impact the validity of the latter trademark. Under such circumstances, the courts shall consider and decide whether to approve the above-mentioned agreement. Where litigation concerning trademark ownership affirmation takes the form of an administrative suit, the courts shall, within the scope of the Trademark Review and Adjudication Board’s (the “TRAB”) administrative acts, decide whether its administrative acts are valid and rational.

READ MORE

The Establishment Procedure of Foreign-Capital Enterprises in Shanghai FTZ

(By Bai Lituan) On August 30, 2013, the Standing Committee of the National People’s Congress enacted the Decision of the Standing Committee of the National People’s Congress on Authorizing the State Council to Temporarily.

Adjust the Administrative Examination and Approval of Relevant Laws in China (Shanghai) Free Trade Zone (the “DESIVISION”). The DESIVISION authorizes the State Council to temporarily adjust about 11 administration examinations and approval of the establishment and merger of foreign-capital enterprises including the wholly foreign-owned enterprises, Sino-foreign cooperative joint venture and Sino-foreign equity joint ventures in the Shanghai Pilot Free Trade Zone (the “FTZ”). Earlier reports once said that it would temporarily suspend the implementation of the Law on Wholly Foreign-Owned Enterprises, the Law on Sino-Foreign Cooperative Joint Ventures and the Law on Sino-Foreign Equity Joint Ventures in the FTZ. In effect, those three laws involve the establishment, business structure, foreign exchange management, labor and personnel, finance and accounting, dissolution and liquidation, etc. The DESIVION of the National People’s Congress just temporarily suspends 11 administration approvals and changes them into filling administration. The Law on Wholly Foreign-Owned Enterprises, the Law on Sino-Foreign Cooperative Joint Ventures and the Law on Sino-Foreign Equity Joint Ventures will still be enforced in the FTZ and be temporarily adjusted.

READ MORE

China’s Telecom Anti-Monopoly: What Troubles is the China National Development and Reform Commission Meeting?

TM截图未命名

(By You Yunting) According to media reports, the officer in charge of the China National Development and Reform Commission (the “NDRC”) in a recent statement was quoted as saying that the NDRC had always, and would continue to supervise the monopoly issues in relation to broadband access provided by China Telecom and China Unicom, and that the NDRC suffered from various reactions when it announced its investigation into China Telecom and China Unicom at the end of 2011. He also said that currently the 10G of bandwidth provided by China Telecom and China Unicom had been extended to 100G, and that it would still urge China Telecom and China Unicom to rectify this issue within a period of three to five years.

READ MORE

Why did the “Gatekeeper” of the Capital Market Fail to Fulfill its Duties?

(By Yu Zhiyuan and Bai Lituan) In the capital market, agency institutions’ participation greatly reduces the degree of information asymmetry of market subjects, and plays a significant role in the capital market; thus, the agency institutions and their professionals are named by the industry as the “gatekeepers” of the capital market. Ever since the Enron Corporation scandal became public and the Sarbanes-Oxley Act (SOA) was published, in order to better protect the interests of public investors, all countries are attempting to apply new approaches to security supervision. Thus far, enhancing the gatekeepers’ obligations is one of the ways to realize investor protection. Recently, fraudulent securities issuances and severe distortions of information disclosure are occurring frequently in China’s capital market, and this has a direct causal relationship with the gatekeepers’ mechanism failure.

READ MORE

Why QQ Pinyin suffered due to Unfair Competition from Sogou Pinyin?

TM截图未命名

(By You Yunting) Abstract: Although the Advertising Law stipulates that advertisements may not make excessive use of superlatives in advertising products and services, a business operator using absolutist phrasing and imagery alone is insufficient to find one guilty of unfair competition. Although it is true that many methods of advertising on the Internet are not yet clearly defined in the laws, if a company’s methods would be considered to go beyond those of a normal business practice, it can be assured that those operators may face the possibility of lawsuits and possible criminal actions.

READ MORE

Why could China’s Courts Decide for Audi’s “TT” to Apply for a Trademark?

TM截图未命名

(By Luo Yanjie) Abstract: as for whether trademarks are similar, many times, it is decided on the subjective cognition of the judge. Furthermore, considering the fact of the distinctiveness of a trademark, whether the “TT” trademark has distinctiveness is still in doubt.

Automobile models are always composed of simple numbers and English letters. Sometimes manufacturers of bestselling cars once hoped to register these simple models as trademarks but all failed (for example, A6, A4, etc.). However, Audi canceled the rules handled down by the Trademark Review and Adjudication Board through administrative litigation processing, thus possibly obtaining trademark registration:

READ MORE

Four Problems of China Supreme Court‘ s Judicial Interpretation on Crackdown of Web Rumor

(By You Yunting) Recently, the Supreme People’s Court and the Supreme People’s Procuratorate jointly issued the Interpretations on Some Issues Concerning the Application of Laws for in the Handling of Defamation via Information Networks and Other Criminal Cases (hereinafter the “Judicial Interpretation”).

Upon reading the whole text of the Judicial Interpretation, in the author’s opinion, this Judicial Interpretation has a bad negative impact upon the rule of law and freedom of speech rather than the positive value of cracking down on web rumors and purifying the environment of internet, because of considering that this Judicial Interpretation attempts to use the idea of “governing the country with severe law during the trouble times” to solve the web rumors so that current crackdown against web rumors is too hard and the legislative proceedings of this Judicial Interpretation are defective .
II. The Problem in Violation of the Principle of Legality

READ MORE