Author Archives: yytbest

What Legal Risk May Come to Companies Enrolled in the Non Bank Loan in China?

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(By Albert Chen) The capital shortage is inevitable during the company operation, and many operators could be head aching with the financing. Due to the strict demands and procedures for the credit approval in the banks, the company may suffer from the refusal of loan application or delay in lending. At that time, the non-bank loan could play another main role in the company financing. Then what risks may come to foreign invested companies as they enrolled in the non-bank loan when running business in China? Please check today’s post for the answer.

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Tonghuashun VS. Wind and the Judgment Standards for Software Copyright Infringement in China

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(By Luo Yanjie) Recently, Wind Information Co., Ltd (“Wind Info”), a well-known stock speculation software developer in mainland China, made an official announcement that it would sue its competitor Zhejiang Hexin Tonghuashun (300033) to seek RMB 99.22 million yuan in compensation. According to Wind’s spokesman, “more than ninety-nine percent of its software’s function has been copied by Tonghuashun without any changes, including data, organizational structure, column names, connection mode, index, function, text interpretation, parameters, interface, operation or transfer method, and etc.” At present, the ninety-nine percent figure claimed by the spokesman refers to the interface, operation, or transfer method and database. Even if this claim is true, it is still not certain that Tonghuashun has infringed because the judgment of infringement depends on comparison of the source code of both parties’ software. Today, we would like to share the following information on the protection of software copyrights:

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Which Copyright Should Internet TV Operators Purchase?

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Analysis on the Prohibition of Xiaomi Box and Legal Issues Concerning Internet TV

(By You Yunting) Recently, Xiaomi Tech (the “Xiaomi”), a thriving Chinese smart phone maker, released its “Xiaomi Box” (the “Box”), which enables the user to play online video on their television. Moreover, it also supports TV, games, music, and photos. Strangely, however, the Box ceased its video service under the claim of system maintenance only one week after its release.

According to some media reports (note: the link is in Chinese), the Box is a kind of set top box, and according to the rules of the State Administration of Radio, Film and Television (“SARFT”), such products must first be administratively approved before they can be used in online TV. Despite the cooperation made with WASU, other content available from Xiaomi’s box, such as video from Sohu, Tencent, PPTV, or iFeng are against Notice No. 181 issued by SARFT, which regulates that each set top box can only provide content from licensed video providers.

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How to Judge the Copyright Holder of Musical Works

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 (By Luo Yanjie) Previously, we introduced how to determine the copyright holder of cinematographic works, and today we would like to continue by introducing how to determine copyright ownership of musical works. Similar to cinematographic works, we have confronted situations in infringement cases in which it is difficult to determine the copyright holder of musical work. For example, in one case the copyright conducted in mainland China was licensed by an overseas rights holder, but the name in the signed and issued license was different from what was written on the original CD. Although the issue might have come from a mistake in the translation, it still created a real obstacle for the rights holder. Now, let’s take a look on the way to determine the copyright holder of musical work in China.

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How to Judge the Copyright Holder of Cinematographic Work in China?

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(By Luo Yanjie) In a previous infringement case against cinematographic we handled, the plaintiff submitted several articles of evidence to the court, which showed that the work belonged to different copyright holders: according to a certificate issued by the Hong Kong Copyright Center, it was Copyrighter A’s property while the subtitle authorship rights belonged to Copyrighter B. And yet, as demonstrated by a license agreement, C shall be the exclusive holder of the copyright. That made the plaintiff argue for his ownership of the copyright. In fact, due to the complexity in determining copyright ownership, contradictory disputes like the one described above are quite common in actual practice. In today’s post we will share our understanding of the issue.

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How Companies in China Apply for Reserve Trademarks and Defensive Trademarks?

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(By Luo Yanjie) A reporter from China Industry & Commerce News asked the author how companies should apply for reserve trademarks and defensive trademarks. The interview is as follows:

1. How to decide between the registration of a reserve or defensive trademark?

Reserve trademarks are prepared for coming new business. Because the period from application to reservation requires one year, it is suggested to prepare some spare names for new products or services being prepared or under research and development. Then, before the product is released, the company can directly select and use a name it has already registered. Generally, it is only necessary to apply for the classes the company intends to adopt, and there is no need to register many other related classes.

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How to Acquire the Trademarks of Companies Whose Business Have Been Canceled or Whose Licenses Have Been Revoked in China?

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By Albert Chen

Trademark assignees may sometimes encounter an awkward situation: the target trademark is in the hands of a company that has had its business license revoked or that has been cancelled. Although the trademark is still valid, others seem to have no legitimate means to acquire it. So, under these circumstances, does the assignee really have no means to acquire the trademark? In today’s post, you will find the answer.

I. Why would trademarks be left unused?

According to relevant statistics, the average life of Chinese companies is seven years, and the average of life of privately owned companies is only 2.9 years. On the other hand, however, the validity period of a trademark is ten years, and there is nothing in Chinese law that states that the trademark shall automatically become invalid when the business license of its holder is revoked or the company is cancelled. Especially when the business license has been revoked, the company still has legal capacity. It is merely incapable of conducting civil acts, including the use and transfer of trademarks, because its business license or chop has been announced invalid or has been confiscated under the punishment of business license revocation.

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What Geographical Names Can be Registered As Trademarks in China?

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It is reported that (Note: the link is in Chinese) Wakayama County of Japan recently announced that the trademark application for “Ji Zhou” (纪州) filed by a Hong Kong company on the Chinese mainland concerns a publicly well-know geographical name. The County has also filed an objection with the Chinese Trademark Office because this name is not appropriate to serve as a trademark. The report also stated that Wakayama County has been paying close attention to trademark applications in China since 2010 and has already had two objections granted against trademark applications for “Wakayama.” Today, we would like to discuss whether geographical names can be registered as trademarks:

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How Long Is the Copyright Protection Period of Foreign Companies and Individuals in China?

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By You Yunting

A reader asked: Does Chinese law protects the copyrights of foreign companies and individuals? And, how long is the protection period? Today’s post will discuss this question.

I. The three requirements for granting copyrights to the works of foreign individuals or companies

Whether or not the work of a foreign person, company, or stateless person enjoys the copyright protection period depends on whether or not they qualify as a Chinese copyright holder. By Article 2 of China’s Copyright Law, one of the following three conditions must be met:

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Chinese Tech Websites Begin to Pay More Attention to the Copyright of Translated Work

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By You Yunting

The competition among Chinese tech websites is fierce, and in order to gain an advantage in the battle, many translate essays from American blogs into Chinese and publish them on their websites without permission from the author. Recently, apple4.us, a China-based tech blog, announced they will no longer translate essays without authorization. Furthermore, they will withdraw all past unauthorized translations and ask permission from the authors.

Here is the whole story: Lawrence Li (李如一), an author for apple4.us, translated What Is and Is Not a Technology Company by Alex Payne without authorization and posted it on apple4.us. An editor of Donews, a tech blog under Qianxiang, asked Mr. Li and another apple4.us writer, Hu Wei, for authorization to reproduce the translated essay. Despite never giving confirmation, Mr. Lee later found that Donews had reproduced the essay.

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Does Chinese Trademark Law Permit the Coexistence of Identical or Similar Trademarks?

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Last year, the Supreme People’s Court issued the final decision in the protracted dispute between LACOSTE and CARTELO. The decision clarifies cases involving long brand history and could guide future hearings on similar disputes in courts of all levels. In the decision, LACOSTE lost the lawsuit, and no infringement was found on the part of CARTELO. In the judgment, the Court took the first steps towards establishing a system of “trademark coexistence,” which means the coexistence of similar trademarks in the same class, for use in China’s trademark cases. Today’s post will provide an analysis of the application of this system in China.

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What Receives Protection as a Trade Secret in China?

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By Albert Chen

In an essay posted several days ago, we discussed how infringing another’s trade secret is a kind of unfair competition. Although the Anti Unfair Competition Law contains a definition of trade secret in principle, this definition is not very detailed, and there might still be a fair number of differences between understanding and actual practice. Today’s essay will share the author’s research and analysis on whether Chinese law contains any further regulations on the term “trade secret.”

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Unauthorized Derivative Work Still Receives Protection Under China’s Copyright Law

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By Luo Yanjie

The copyright holder of Pleasant Goat (喜羊羊), a popular Chinese cartoon figure, recently brought actions against the unauthorized use of the character in Flash games on several game websites. According to Chinese copyright law, the copyright holder must give permission to use art in a game, otherwise it will result in infringement. This is easily understood. But, if such an unauthorized game is then used on another website without the original developer’s consent, does this infringe the interests of the game developer? Today’s post will discuss this problem. In my opinion, even if the game developer used the cartoon character to create software without authorization from the copyright holder, the software still receives protection under the Copyright Law, but its protection has definite limits.

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Is It Lawful for News Websites to Demand Payment of Fees for Google and Baidu Searches

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(By You Yunting) According to a report in the New York Times, as also reported by some European websites, Google is recompiling its searched news results as a news page. It may be said that this method could infringe the copyright of the original publishing websites and, as a result, Google should pay fees for the websites. This idea has received support from both the French and German Governments, yet Google believes that its behavior fully conforms to the law, and thus should not have to pay any fees. In China, the main search engines Google and Baidu provide this kind of news search service, and today’s post will discuss whether it is lawful for news websites to claim fees from the search engines.

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