Author Archives: yytbest

Is School Teaching a Method of Publicizing Work in China?

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(By Luo Yanjie) According to the Copyright Law, the copyright holder has more than ten exclusive rights. Because of the many kinds of works and complexity of society’s use of the work, the copyright holder is often unclear about the differences between the exclusive rights and may have a very vague understanding of the fair use system, a system which can cut against the copyright. Although the case introduced in this essay is fundamentally not a rights protection case, the judgment clarifies the methods used for publication and expands the scope of the fair use copyright exception. The following is a summary and analysis of the case:

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Is It Illegal For Directors in Company to Squat Trademarks in China?

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 (By Luo Yanjie) As regulated in Article 15 of the Trademark Law:

“Where any agent or representative registers, in its or his own name, the trademark of a person for whom it or he acts as the agent or representative without authorization therefrom, and the latter raises opposition, the trademark shall be rejected for registration and prohibited from use.”

But in judicial practice, the agent or representative has a very vague definition and limit, and interpretation regarding the meaning of “authorized” is currently in dispute. Our website once introduced and analyzed the issues concerned in the post “Whether Sales Agents Are Included in the Trademark Agent Squatting Articles of China Trademark Law”, and in today’s post we would like to introduce the opinions of the court having analyzed the case from a different aspect. The details are as follows:

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China Supreme Court: Which Courts Have Jurisdiction Over Design Patent Disputes?

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(By Albert Chen) Past essays on this websites have introduced the design patent dispute between Honda Motor Co., Ltd. (“Hongda”), Hebei Xin Kai Auto Manufacturing Co., Ltd. (“Hebei Xin Kai”) and Shuanghuan Auto Co., Ltd. In another utility model patent dispute involving Hongda and Xin Kai, the Supreme People’s Court has rendered a decision on jurisdiction in design patent disputes. This dispute deserves attention and concentration and will be introduced in today’s post.

Case summary:

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Measures on Compulsory Licensing for Patent Exploitation

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Order No. 64 of the State Intellectual Property Office

(promulgated on 15 March 2012 and implemented on 1 May 2012)

Chapter I  General Provisions

Article 1  The Measures are formulated in accordance with the Patent Law of the PRC (hereinafter as “the Patent Law”), the Implementing Regulations of the Patent Law of the PRC (hereinafter as “the Implementing Regulations”) and the relevant laws and regulations for the purposes of regulating the procedures relating to granting, royalty adjudication and termination of compulsory licensing for the exploitation of invention patents or utility model patents (hereinafter as “compulsory licensing”).

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Why Couldn’t the Trademark “Bond” Be Applied to Contraceptives?

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(By Albert Chen) The Beijing High People’s Court (the “Beijing High Court”) established the “merchandising right” in a 2011 judgment on an administrative dispute between the Trademark Adjudication and Review Board (the “Board”) and DANJAQ, LLC (the “DANJAQ”). That was the first judicial definition of the right, and the first time it was included as a protected “first right.” The decision can be considered a clarification of the “merchandising right” by the judicial organs as well as broadening the scope of first rights.

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Will Magic be Protected as A Work under China’s Copyright Law?

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(By Luo Yanjie) Magic has long been a popular medium with which to entertain an audience, and how one should legally protect magic has long been a problem in the law. This problem has become especially obvious now that we have seen arguments regarding magic and the requirement that an expression be “original” as stipulated in the Copyright Law. Today, we would like to introduce to our readers how China protects magic works based on a case heard by the Beijing No.1 Intermediate People’s Court, which can be considered the first established case concerning the magic work.

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The Shanghai Branch of CIETAC Changed Its Name

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Today, we noticed an announcement published on the website of the Shanghai Branch of the China International Economic and Trade Arbitration Commission stating that it has changed its name to the Shanghai International Economic and Trade Arbitration Commission (the “Shanghai Commission”). At the same time, it will begin to use the name of Shanghai International Arbitration Center. Additionally, starting on May 1, 2013, the Shanghai Commission will begin using new Arbitration Rules and a new arbitrator name list.

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Dissatisfied with the First Instance Judgment, Qihoo Has Appealed in Its Anti-Monopoly Lawsuit Against Tencent

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Our website has analyzed the case filed by Qihoo (NYSE: QIHU) against Tencent (SEHK: 700) stating that Tencent’s abuse of market dominance constituted a monopoly. The first instance of the case was decided by the Guangdong High People’s Court, which denied all of Qihoo’s claims. As recently disclosed by Qihoo, the company has appealed to the Supreme People’s Court, demanding either revocation of the first instance judgment and remand for the retrial, or amendment of the first instance legal judgment based on the facts such that all of Qihoo’s claims are supported.

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How Does Monsanto Apply GMOs Patent into Company Operation?

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Record of the Visit to St. Louis, Part I

 (By You Yunting) In late March, the author had the opportunity to take a journey to the United States at the invitation of the US government in order to better understand how the US IPR system operates. The third he visited was St. Louis in the midwest, and while he was there there he visited the well-known bio-tech company, Monsanto Company (NYSE: MON, the “Monsanto”), and was received by senior legal officers. The following is the brief record of the visit there. The author notes that the title of this essay only covers part of the content of the essay and should not be adopted as theory.

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How Does the US Government Determine Whether the Parallel Import of Trademarks Is Legal？

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Record III of the Visit to New York

(By You Yunting) From late of March, the author visited the US at the invitation of the US government in order to get a better understanding of how the US IPR system operates. On Monday of the second week there, the author visited Wiggin and Dana LLP and Pryor Cashman LLP, two New York law firms. The law offices visited on that day were all in New York’s central business district and had spacious offices, with luxurious decorations, and the view outside was all of beautiful river scenery or of the Apple Countdown. The following is the record of that day’s visit.

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Analysis on the Anti-monopoly Dispute Filed by Qihoo against Tencent, III

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(By Luo Yanjie) In our previous two posts, we introduced the reader to the facts involved in the monopoly dispute between Qihoo and Tencent, as well as the Court’s decision. Today, we continue that discussion of the case and would like to share our opinions on it.

Lawyer’s comments and analysis

It is not difficult to find from the above judgment that Qihoo lost the lawsuit mainly because the court in the first instance denied its allegation that Tencent held a dominant position in the market; in addition, it’s evidence that the court’s decision was primarily based on a broad definition of “relevant market” in regard to Tencent’s QQ instant messaging software. The following is our analysis on the issue:

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Analysis on the Anti-monopoly Dispute Filed by Qihoo against Tencent, II

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(By Luo Yanjie) Today we will continue our introduction of the opinions of the Guangdong High People’s Court, the first instance court in the anti-monopoly dispute, concerning the facts in the case as well as its judgment.

II. About the dominant position of the defendant in the relevant market

As held by the court in the first instance, the plaintiff had a much narrower definition of the relevant product market and regional market, and the plaintiff calculated the market share based on the relevant product and regional market as it advocated, and that could not truly reflect the share and position of the defendant in the relevant market objectively. Especially taking into account that the product scope shown was the plaintiff’s most important evidence; more importantly, that the report from the Ai Rui research institution presented data contrasting with the scope determined by the court.

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Analysis on the Anti-monopoly Dispute Filed by Qihoo against Tencent, I

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(By Luo Yanjie) Starting today, we will have three posts introducing the decision in China’s most closely followed anti-monopoly case. Today’s post will first introduce the facts of the case. Qihoo 360 Technology Co. Ltd. (NYSE: QIHU) (“Qihoo”) is a company whose primary business is security software. In October of 2010, Qihoo released software named “360 Privacy Protector,” which was claimed to prevent QQ, the instant messenger of Tencent Holdings Limited (SEHK: 700) (“Tencent”), from uploading the user’s personal information. Tencent was very dissatisfied with this claim, and believed that Qihoo actually intended to steal QQ users’ information and then replace QQ with its own product. For this reason, Tencent issued a notice to its users, demanding that users who installed QQ not install any of Qihoo’s software. At the same time it took technical steps to check the computers of its users to see whether they had installed Qihoo’s software. If any Qihoo software was found, the user was not allowed to sign in to QQ. This led to a large dispute on the internet in China. After the Ministry of Industry and Information Technology (the “MIIT”) intervened, Qihoo recalled its 360 Privacy Protector, and Tencent revoked its regulation prohibiting QQ users from using Qihoo.

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How Does the Federal Trade Commission Decide Whether Intellectual Property Licenses Violate Anti-trust Laws?

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Day Five of the US Visit II

In late March, the author had the opportunity to make a journey to the United States at the invitation of the U.S. government in order to better understand how the US intellectual system operates. On the fifth day of the visit, the author went to the Federal Trade Commission (the “FTC”), and the following is a brief record of his visit there.

The FTC is the administration in charge of investigating and taking action against unfair competition and anti trust in the US. During the visit, FTC officials showed us a map showing that as of 1900, only the US and Canada had enacted competition laws, including unfair competition law and the anti trust law. Later by 1960, Sweden, France, and Japan passed legislation on competition. By 1980, many countries in Europe and South America passed competition laws, as well as Australia, India, Thailand, and South Africa. By 2012, almost all states of the world had laws in that field, except for a few African countries.

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US Industrial Representative’s Interpretation on the Impossibility of Charges in China’s Music Industry

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Record IV of Day Four of our U.S. Visit

(By You Yunting) In late March, the author had the opportunity to take a journey to the United States at the invitation of the U.S. government in order to better understand how the U.S. IPR system operates. On the fourth day of the journey, the author and his associate visited the International Intellectual Property Association (the “IIPA”). The following is the brief record of our visit there.

The IIPA is a copyright protection organization consisting of the Association of American Publishers (the “APP”), Business Software Alliance (the “BSA”), Entertainment Software Association (the “ESA”), Independent Film & Television Alliance (the “IFTA”), International Visual Art Association (the “INTVAA”), Motion Picture Association of America (the “MPAA”), National Music Publishers’ Association (the “NMPA”), and the Recording Industry Association of America (the “RIAA”).

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