(By You Yunting) Can brand holders cap wholesale and retail prices of their products? Many people believe brand holders have the discretion to set prices. However, the Anti-Monopoly Law 2007 imposes such strict restrictions that almost ban this practice, causing controversies. The safe harbor clauses added to the new Anti-Monopoly Law adopted by the Standing Committee of the National Congress conditionally allows small and medium sized businesses with small market shares to cap resale prices. Now let’s look at where the safe harbor comes from.
(By Gao Tianyi and You Yunting) Data buyers often focus on several potential legal concerns in web-scraped data, particularly relating to the Computer Fraud and Abuse Act (CFAA) in the United States. But a recent case in China between Weibo and Maimai demonstrates that even where the CFAA does not apply and vendors are using an Open API, risks may still exist if the buyers fail to acquire and use data appropriately.
Weibo is one of China’s largest social media platforms and has over 530 million monthly active users, according to China Internet Watch. Maimai is a China-based professional social-networking platform, which was initially modelled on LinkedIn. In July 2019, Maimai had 25 million monthly active users.
(By You Yunting)According to a media report, a woman recently claimed her rights at a car exhibition in Shanghai after Tesla disclosed part of driving data of her Tesla car, including time, VIN, speed, physical movement signal of the brake pedal and the pressure of master brake cylinder. The woman’s family claimed that Tesla infringed the car owner’s privacy and consumer rights and should cancel the data and apologize.
Let’s discuss whether it was illegal for Tesla to disclose the customer’s driving data to media. First, in my opinion, driving data are personal data of Tesla car drivers, so Tesla violated the Cyber Security Law when disclosing the driving data without the driver’s approval.
(By Lv Xuanxuan)Information about “one-stop online services” and the app of “in Shanghai” for the general public appeared on the official website of “the People’s Government of Shanghai” on 22 February 2019. Online “windows” such as “in Shanghai”, “With You”, “One-stop Online Services”, “On Your Hands”, “On Your Fingertips” give more convenience to the public to deal with administrative affairs. However, the application of the internet plus will make it more difficult to prevent “free riders” in the public service area. Search results generated by search tools in certain apps using key words about the above services frequently show account numbers and service marks that are very similar to or even the same as the official service names. This article aims to explore the protection of public service and product marks in hope of contributing to the construction of the “service government”.
(By Lisa Li)The EU General Data Protection Regulation (“GDPR”) affects a broad range of people outside the EU. Certain Chinese businesses are very likely to be bound by GDPR. This article briefly discusses how GDPR affects Chinese businesses and what Chinese businesses should do to comply with GDPR.
1.The Application of GDPR to Chinese Businesses
This is a matter of applicability. GDPR applies to the following people.
(a) People established in the EU who control or process data and process personal data while doing business regardless of where these data are processed.
Pursuant to the Anti-Monopoly Law, the Civil Procedure Law and the Arbitration Law, there is no limitation of applying arbitration clause as a settlement to monopoly disputes in China. The Arbitration is well acknowledged for its confidentiality, flexible legal or commercial basis of arbitrating and its finality of one award, which are perfectly adapted to the requirements of confidentiality, efficiency and reliance on customs in business operation. Therefore, the practice of arbitration clause can bring about significant values and meanings to commercial subjects, and furthermore help indicate various risks and opportunities of different timing in relevant market. In this essay, we will introduce relevant cases and investigate whether the judicial opinions on arbitration clauses applied in monopoly disputes are appropriate.
(By Ning Tinggang) Beijing Intellectual Property Court recently introduced some movie, TV series, music, animation and game related cases it heard in 2015 and 2016 via its public WeChat platform, including the trademark “Kuroko Basketball” invalidity case which inspired me. The way that the court dealt with this case shows a new trend of protecting merchandizing interests which we legal professionals should pay attention to.
Kuroko Basketball is a popular comic work about basketball created by ふじまき ただとし, a Japanese comics artist. The work was serialized on the magazine SHONEN JUMP published by Shueisha since the second issue in 2009, and then was adapted for an animation and first broadcast on 7th April 2012. The plaintiff, SL Sport Ltd. in Kaiping (“SL Company”), filed a trademark-register application to the trademark office on 19th July 2012. As approved, this trademark (“Disputed Trademark”) should be used under Class 25. In addition, SL Company registered tens of trademarks closely connected with popular comics works such as Kuroko Basketball and SLAM DUNK that Shueisha had published, including trademarks used under Class 18, 24, 25, 35 and other types of commodities or services. Thus, Shueisha filed a request for declaration of invalidity of the Disputed Trademark.
- The State Council Issues Policies on the Promotion of Imports and Exports On 22nd July 2015, the General Office of the State Council of the P.R.C. issued the Policies on the Promotion of Imports and Exports.
(For more details, please refer to your lawyer.)
Sourced from the official website of the National Government of the P.R.C.: http://www.gov.cn/zhengce/content/2015-07/24/content_10031.htm
- The Supreme People’s Court Issues New Judicial Interpretation, Conditionally Recognizing the Validity of Private Lending Between Enterprises
On 6th August 2015, the Supreme People’s Court issued the judicial interpretation on Private Lending, which will take into effect on 1st September 2015.
The new judicial interpretation specifies the conditions of the effectiveness of private lending agreements and notably validates private lending between private enterprises which meets the requirements thereof.
- The People’s Bank of China and the Other Nine Authorities Jointly Issue Policies on Boosting the Internet Finance Industry
On 18th July 2015, the People’s Bank of China, the Ministry of Industry and Information Technology, the Ministry of Public Security, the Ministry of Finance, the State Administration for Industry and Commerce, the Legislative Affairs Office, the China Banking Regulatory Commission, the China Securities Regulatory Commission, the China Insurance Regulatory Commission and the State Internet Information Office jointly issued the Policies on Boosting the Internet Finance Industry (“Policies”).
Such Policies provide a range of instructions on supporting and encouraging internet finance activities and specify duties of administration and control over major internet finance activities such as payment over the internet, network lending, equity crowd-funding, sale of funds via the internet, internet insurance, internet trust, doing and closing transactions through the internet.
(By Dr. Wenbao Qiao) For foreign companies doing business in China, dispute and litigation may sometimes be inevitable. Once a dispute cannot be resolved out of court, there is a long and rocky road to the final success, with several important points to be considered for planning and handling of litigation in China:
Documents and Evidence
The first step of each procedure is to collect and prepare all necessary documents and evidence. According to Chinese law, documents and evidence from another country (such as excerpts from the commercial register or powers of attorney) have to be first notarized in their country of origin and then certified by the Chinese Embassy or Consulate in the respective country. Only notarized and certified documents and evidence will be accepted by Chinese courts. While preparing the documents and evidence, attention should be paid to the timeline required for the notarization and certification. There are several important statutory deadlines shown below. Failure to meet these deadlines can lead to the loss of a case. Notarization and certification in Germany usually takes two to three weeks, which in turn may play a critical role for the time schedule of trial preparation.
(By You Yunting) Recently, Uber Shanghai carries out a marketing activity called Call for one hundred million by one button of Uber cooperated with 1qiaobao, an App owned by PINGAN INSURANCE GRP. According to the Uber’s official Weibo, users can use the Uber App to call the securicar provided by both Uber and 1qianbao, and anyone who is the winner of the caller can obtain all the financing earnings of one hundred million yuan, which is about ten thousand yuan. I think this activity has huge legal risks, therefore hereunder are the risks and its reason.
- The National Development and Reform Commission and the Ministry of Commerce Publish the Catalogue of Industries for Foreign Investment (2015 Revised Edition)
On the 10th March 2015, the National Development and Reform Commission and the Ministry of Commerce of the PRC published the Catalogue of Industries for Guiding Foreign Investment (2015 Revised Edition) (“Catalogue”) under the approval by the State Council of the PRC. The Catalogue will become effective on the 10th of April 2015.
The Catalogue totally contains 432 items, from which 48 items of the 471 items totally contained in the 2011 Edition, have been eliminated. Among those eliminated items, 41 ones are under the restricted class, 5 under the priority class and 2 under the prohibited class. In addition, the number of items “limited to joint investment and cooperation” in the Catalogue is 15, decreased from 43 in the 2011 Edition and the number of items applicable only to “Chinese controlled businesses” in the Catalogue is 35, decreased from 44 in the 2011 Edition.
(By You Yunting) As we have already posted Judgment Abstract on NDRC’s Administrative Decision of Qualcomm Incorporated (Part 1) on April 17 2015, today we would like to introduce more.
III What’re the legitimate basis and the final decision?
Pursuant to Article 47 and Article 49 of the Anti-Monopoly Law, the NDRC made the following decisiosn against Qualcomm’s abuse of dominant market position in the SEPs markets and the baseband chip markets:
- Order Qualcomm a halt to illegal activities upon abuse of dominant market position as follows:
a Qualcomm shall provide patent lists to its licensees in China and not charge licensees for expired patents.
(By You Yunting) As from October 2013, the National Development and Reform Commission (the “NDRC”) starts the anti-monopoly probe into the world’s biggest cellphone chip maker, Qualcomm (NASDAQ: QCOM) , and makes in-depth investigations and discussion with tens of cellphone manufacturers and baseband chip manufacturers at home and abroad. Recently, the NDRC determined that Qualcomm holds a dominant position in the markets of standard essential patents (“SEPs”) licensing in relation to CDMA, WCDMA and LTE wireless communication and the baseband chip market, and that Qualcomm be fined 6.088 billion yuan in the violation of the Anti-Monopoly Law. Today we will introduce the punishment decision and make comments.
(By You Yunting) China’s two largest Taxi apps Didi Dache (“Didi”) and Kuaidi Dache (“Kuaidi”) confirmed merger on the Western Valentine’s Day, triggering the whole industry, which also lead to the suspicion of a monopoly. Afterwards, the Taxi apps Didi and Kuaidi responded this with much larger travel markets, and told that their merger does not lead to a monopoly, because mobile taxis only count a small proportion with lots of participators. As for whether their merger is accused of monopoly, there are hot discussions among legal professions. At present, third parties were tending to make anti-monopoly investigation from the Ministry of Commerce, and I am no exception. But after full consideration, I fell into confusion.