Category Archives: Trademark

China Laws and Regulations Update in December 2023

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1. Opinions on Handling Criminal Cases of Dangerous Driving while Intoxicated

Promulgated by The Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of Justice

Promulgated date:13 December, 2023

Implementation date: 28 December, 2023

Document number: SPP [2023] No. 187

The Opinions consists of 30 articles, divided into six parts, namely, general requirements, filing and investigation, criminal prosecution, expeditious handling, comprehensive management and supplemental provisions, which are comprehensive in content and tightly regulated by law. Among them, the filing and investigation part has prescribed the filing standards, definitions of roads and motor vehicles, enforcement measures, and evidence collection, etc.; the criminal prosecution part has prescribed the circumstances for heavier and lenient punishment, the identification and sentencing standards for significantly minor and minor circumstances, public services, and the connection between criminal and administrative penalties, etc.; the expeditious handling part has prescribed the principle, scope, period and process of applying the expeditious handling mechanism to driving while intoxicated cases. (Source: Supreme People’s Procuratorate)

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China Laws and Regulations Update in November 2023

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1. Administrative Measures for the Capital of Commercial Banks (Revised)

Promulgated by National Financial Regulatory Administration (NFRA)

Promulgated date: 1 November, 2023

Implementation date: 1 January, 2024

Document number: NFRA Order No. 4

Recently, the National Financial Regulatory Administration has issued the revised Administrative Measures for the Capital of Commercial Banks (hereinafter referred to as the Measures), which will come into force on January 1, 2024, and simultaneously issued the Circular on Matters Related to the Implementation of the Administrative Measures for the Capital of Commercial Banks. The Measures consists of 10 chapters and 206 articles, including the calculation of capital regulatory indicators and regulatory requirements, and the definition of capital. In terms of risk management requirements, the Measures requires the establishment and effective implementation of corresponding credit risk management systems, processes and mechanisms, the formulation by banks of business policies for and segmentation and management of trading desks on which the measurement of internal modeling method is based, and the establishment and improvement of the standards, rules and processes for the collection of loss data before applying for the adoption of loss multiplier and coefficient given by the administration. In terms of improving supervision and inspection requirements, the Measures clarifies that, on one hand, the content of supervision and inspection should be improved with reference to international standards; on the other hand, the implementation of the policy should be facilitated based on the existing domestic supervisory system. (Source: National Financial Regulatory Administration)

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How can OpenAI fight against trademark squatting towards its “ChatGPT”?

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(By You Yunting) After U.S. OpenAI company a year ago launched a large language model ChatGPT3.5 version, a number of domestic companies have filed the trademark application of “ChatGPT”, many of which have been registered or gone through the Trademark Office’s preliminary examination and entered into the announcement process. I have found after my reflection that it is not easy for the company to successfully protect its rights because ChatGPT is not available to Chinese users, and its own trademark application is also at risk. Today I will talk about this matter with you.

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Why Zheng Yuanjie Finds it Difficult to Seek Protection of Intellectual Property Rights?

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(By You Yunting) Zheng Yuanjie, a famous fairy tale writer announced on his personal social account that he would no longer seek trademark protection or publish any written work. By his own account, he had sought trademark protection for 673 infringed trademarks unsuccessfully. After reading part of the content of his Weibo, I feel he may have some misunderstanding of intellectual property protection principles. Actually, he was given a lot of legal protection, but intellectual property protection is different considering its privity. What he is angry about may be unnecessary.

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How to Look at “Hideki Yukawa” (Physicist and Nobel Prize Winner) Trademarks on Toilet Covers from Chinese Law Perspective? Comments on Legality of “Hideki Yukawa” Trademarks

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(By Chen Danfeng)

On dang dang, JD and other platforms there are descriptions of the book “The Traveller” published by Shanghai Translation Publishing House and its author professor Hideki Yukawa, famous physicist and the first Japanese winner of the Nobel prize.

Translatation of the information of the Original Cover:

About the Author

Hideki Yukawa (1907-1981)

He is famous Japanese physicist who was born in 1907 and studied physics at the science school of Kyoto Imperial University (now named Kyoto University). He was awarded PHD of Science by Osaka Imperial University (now named Osaka University) in 1938, started to work as professor of Kyoto Imperial University in 1939 and was given the award of the Japan Academy in the following year. He served concurrently as professor of Tokyo Imperial University (now named Tokyo University) and was awarded the Order of Culture in the following year. He went to the US as guest professor of Princeton Institute for Advanced Study in 1948 and became guest professor and professor of Columbia University in July, 1949. He was awarded the Nobel Physics Prize for creation of the meson theory and became the first Japanese winner of the Nobel prize. He died of illness in Kyoto in 1981.

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China Laws and Regulations Update in January 2023

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1. Instructions on Improving Legal Protection of Intellectual Property Rights Relating to Traditional Chinese Medicines

Promulgated by Supreme People’s Court

Promulgation date: 22 December 2022

Document number: FF[2022]34

The Instructions consists of three parts and sixteen articles which are specific provisions relating to the role of judicial authorities in legal protection of intellectual property rights in traditional Chinese medicines and improvement of the ability to administer law to give legal protection of traditional Chinese medicine patents, business marks, trade and state secrets, copyrights and related rights, raw materials of traditional Chinese medicines, various products made from traditional Chinese medicines, etc. and more vigorously maintain the fair competition order on the traditional Chinese medicine market, protect legal interests of traditional Chinese medicine innovators and fight infringement of intellectual property rights in traditional Chinese medicines. The Instructions focuses on main areas and key issues relating to traditional Chinese medicines and is a guide for legal professionals to deal with cases arising from intellectual property rights in traditional Chinese medicines. To improve the protection of traditional Chinese medicine patents, the Instructions suggests following the development law of traditional Chinese medicines, understanding characteristics of traditional Chinese medicine innovation and improving rules on legal protection of patents in traditional Chinese medicine areas. (Source: SPC website)

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Why Huawei Trademark Has More Worth than MI Trademark in Trademark Infringement Cases?

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(By You Yunting andGao Tianyi) In a recently decided trademark infringement case brought by Huawei Technology Ltd. (“Huawei”) against Shenzhen Shangpai Technology Ltd. (“Shangpai”), the court awarded Huawei all punitive damages based on its claims and ordered Shangpai to pay Huawei RMB 5 million. In this case the court found 80% contribution rate of the trademark “Huawei”, which was much higher than the 30% contribution rate of the trademark “mi” in a precedent similar case. So let’s discuss whether the contribution rate of Huawei trademark decided by the court was rational and how punitive damages in the trademark infringement case were calculated.

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Why “Gu Ailing” Trademarks Are Declared as Invalid?

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(By Wang Haichuan) With Beijing Winter Olympic Games going on well, some people are planning to take advantage of successful athletes to gain enormous profits. On 14 February 2022 China National Intellectual Property Administration made the Announcement of Legally Fighting Malicious Rush Registration of Bing Dundun, Gu Ailing, Etc. Trademarks, arousing wide concerns. According to the announcement, a few businesses and individuals maliciously applied hot words related to the Winter Olympics such as the mascot for 2022 Beijing Winter Olympic and Paralympic Games and athletes’ names, illegally used reputation of the Olympics and the Olympic Committee and infringed others’ names and legal rights in order to gain illegal profits and therefore China National Intellectual Property Administration refused to approve 429 trademark registration applications, including No.41128524 “Bin Dundun” and No.62453532 “Gu Ailing” trademark applications and used its powers to announce the invalidity of 43 registered trademarks, including No.41126916 “Xue Dundun” and No.38770198 “Gu Ailing” trademarks. This article deals with reasons for and issues related to NIPA’s announcement of the invalidity of “Gu Ailing” trademark.

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Changes in Trademark Crime Related Provisions of (Eleventh) Made by the Amendment to Criminal Law

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(By Ye Sushuo)Comparison between trademark crime related provisions

Changes of trademark crime related provisions in Articles 213 to 215 of Section 7, Chapter 3 of Criminal Law
Crime Current Criminal Law (Eleventh) Amendment 2020
Article 213 Crime of falsifying a registered trademark A person who uses a mark that is the same as other’s registered trademark on the same type of products without permission of the registered trademark owner in serious circumstances should be sentenced to less than three years in prison or detainment and/or payment of a fine; and more than three and less than seven years in prison and payment of a fine in very serious circumstances. A person who uses a mark that is the same as other’s registered trademark on the same type of products or services without permission of the registered trademark owner in serious circumstances should be sentenced to less than three years in prison and/or payment of a fine; and more than three and less than ten years in prison and payment of a fine in very serious circumstances.
Article 214 Crime of selling products with a falsified registered trademark A person who sells products in a large amount of sales which they know contain a falsified registered trademark should be sentenced to less than three years in prison or detainment and/or payment of a fine in case of a large amount of sales; and more than three years and less than seven years in prison and payment of a fine in case of a very large amount of sales. A person who sells products which they know contains a falsified registered trademark should be sentenced to less than three years in prison and/or payment of a fine in case of a large amount of illegal profits or serious circumstances; and more than three years and less than ten years in prison and payment of a fine in case of a very large amount of illegal profits or very serious circumstances.
Article 215 Crime of illegally manufacturing or selling illegally manufactured registered trademarks A person who falsifies or manufactures other’s registered trademark without permission or sells a registered trademark falsified or manufactured without permission in serious circumstances should be sentenced to less than three years in prison, detainment or surveillance, and/or payment of a fine; and more than three years and less than seven years in prison and payment of a fine in very serious circumstances. A person who falsifies or manufactures other’s registered trademark without permission or sells a registered trademark falsified or manufactured without permission in serious circumstances should be sentenced to less than three years in prison, and/or payment of a fine; and more than three years and less than seven years in prison and payment of a fine in very serious circumstances.

Change A: An additional type of trademarks – service marks

One of major changes in trademark related crimes is that acts of seriously infringing service marks are treated as the crime of falsifying a registered trademark. Whether provisions relating to the crime of falsifying a registered trademark apply to service marks was always a question discussed in academic and practical worlds. Because of the large-scale development of the Chinese service industry, there is an urgent need to strengthen criminal law protection of service marks.

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Strategies for Protecting Intellectual Property Rights in Online Education Platform Software

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(By Gao Shaoyi, Li Rong)Online education is becoming increasingly more important to educational and training industries due to the impact of Covid-19. Online education platforms provide various educational services including course video recording, live online teaching, personalized teaching and instructing, test question searching, work assessment, etc., which to some extent reduce the effect of suspension of on-campus classes on teachers and students. There are many online education platform developers and a lot of online education platform software products launched. Some software brands are copied from others. Therefore, for online education platform software developers, giving a protection for intellectual property rights in their online education platforms in all respects is the only way to gain more core competitive advantages and succeed in today’s market.

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Malicious Registration of “渣渣辉” Trademark! Zhang Jiahui VS Game Operator of Legend of Blue Moon

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As media reported, Zhang Jiahui, a film star in Hong Kong recently applied for the “渣渣辉” trademark for all items under Class 45. I searched the database of the trademark office and found that Jiangxi Tanwan Information Technology Co., Ltd. (“Jiangxi Tanwan”), the operator of the game “Legend of Blue Moon” had applied for the same trademark before.

All the “渣渣辉” trademark applications filed by Zhang Jiahui would be rejected by the trademark office because of the prior applications. I noticed a big news that Zhang Jiahui and Jiangxi Tanwan were scrambling for “渣渣辉”, a valuable popular brand. Now let’s discuss how the two sides use laws to obtain the trademark.

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How to Protect Public Service and Product Marks

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(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”[1].

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Does the Merchandizing Rights Fall into the Protection for Priority Right in China Trademark Cases?

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(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.

Case Introduction

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.

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Shall Quantities of Malicious Registration Be Improper Means in China Trademark Law?

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(By Wang Ting) In China, the Trademark Law applies the Principle of First Filing and when the Trademark Office reviews these applications, they usually examine whether there are prior applications or registrations existed, but not the intentions of filing such prior registrations. It means they don’t consider the bad faith during trademark registration procedure. Many foreign companies have applied and obtained the trademarks for their own products and services at the beginning. However, as so-called villains can always outsmart, besides the malicious registrations of others’ un-registered trademarks, there are lots of cases in which the trademark squatters register the well-known or popular trademarks on different goods or services. Thus foreign companies suffered from such consequences. Today, in our introduced case, we are going to discuss about the situations that the acts of malicious registrations under different classes are finally determined as improper means as stipulated in the Trademark Law.

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