Category Archives: Services

Could User Information Be Considered Trade Secret in China?

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Abstract: trade secret must have three basic features: confidentiality, practicability, and security. Therefore, whether user information in a website could be considered as trade secret or not, it shall also be judged based on these three basic features.

(By Luo Yanjie) User information is very important to a website daily operation. To judge it from the legal protection perspective, it is generally protected as a trade secret. The case introduced in this article is a typical dispute on whether the user information could be considered a trade secret, and thereby could infringement be decided.

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Whether using the Name of Another’s Work Constitutes Copyright Infringement or Unfair Competition

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Abstract: The Copyright Law and the Anti Unfair Competition Law supplement each other, but they also compete with each other.

(By Luo Yanjie Unfair competition refers to an operator’s misconduct that violates principles of fairness, justice, and good faith; it is also considered any behavior that violates widely adopted commercial ethics. As for copyright, as a kind of exclusive right, it mainly focuses on granting the right holder a monopolistic right in conformance with the law, and thereby grants the right holder monopoly rights as well as a competitive advantage through the exploitation of his/her own intellectual works.

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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. 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 judgement 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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Why Hainan Netcom Is Judged Infringement Liability for IP Addresses It Manages?

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(By Albert Chen) Hainan Netcom is an Internet Service Provider (“ISP”), but it also provides the content on the Internet. Even after the company failed todemonstrate that the IP address is used by a third party, and it fulfilled its obligation to check the content of the webpage, the company should still be liable for any corresponding infringement.

Case Summary:

Beijing Ciwen Filming Co., Ltd. (“Company C”) is the copyright holder of film Qi Jian (also known as “Seven Sword”) in mainland China. However, Company C discovered that Hainan Netcom hadbeen providing a link on its homepage (www.hai169.com) for its visitors to stream Qi Jian, without the authorization of Company C.As a result,in September of 2005, Company C filed a lawsuit against Hainan Netcom because it believed that Hainan Netcom had infringed upon its copyright.

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Does 360’ s QQ Guard Constitute Unfair Competition against Tencent? Part II

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(By Luo Yanjie) Today, we would give our opinions on 360’s unfair competition ruling

Lawyer’s Comments:

The case is a part of the “3Q battle”, and has garnered wide attention in the society. From a legal standpoint, this case is not difficult.The ruling against 360 was proper for the following reasons:

1. The promotion of ads and charges are of the lawful items

It shall first be pointed out that despite the annoying functions in QQ, like the pop-up ads or value added service, these functions are of the legal profit model of Tencent. As known to all, QQ is a free software (despite the various charging items, the basic function of the software, namely the messaging is free). For Tencent has invested many resources in hardware and management cost, and should naturally be repaid through the ads or value added service. If other companies prevent the lawful advertising of Tencent, thereby reducing the chances of lawful transactionsfor Tencent and its clients, it would be of unfair competition.

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Does 360’ s QQ Guard Constitute Unfair Competition against Tencent? Part I

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(By Luo Yanjie) Abstract: Although online ads or pop-up ads may make you feel uncomfortable, that is a profit model utilized by free software like Tencent’s QQ, the popular online messaging software. But, when the 360 Guard software removed QQ’s ads, it would no doubt damage Tencent’s legal rights. We’d like to introduce this case to our readers, beginning with today’s post and extending into tomorrow’s.

In 2010, Tencent introduced its “QQ Computer Keeper” to the market, which focuses on defending against attacks on Tencent. Before that, the Qihu 360 Company publicized its product 360 Guard. 360’s software could remove QQ’s ads, remove supplemental and additional functions found within QQ’s software, and prevent computer viruses from stealing QQ account information. Within the first 72 hours after the introduction of 360 Guard, it was downloaded more than 20 million times. Tencent believed that 360’s Guard software constituted unfair competition, and was possibly even stealing end user’s personal information. For this reason, Tencent announced that all computers with 360’s software installed would no longer be able to use QQ’s software.

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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 there from, 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 of “authorized” . Our website once analysed the issues concerned in the post “Whether Sales Agents Are Included in the Trademark Agent Squatting Articles of China Trademark Law”. In today’s post, we would like to introduce the opinions of the court from a different aspect. The details are as follows:

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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 judgement 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; ithe 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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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 its calculation for the market share was thus not accurate.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 of the the Anti-monopoly Case Filed by 360 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 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 for any 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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Trademark Legal Service

DeBund Intellectual Property Right Agency Co., Ltd, subordinated to our website, is approved for trademark agency by administration.

Trademark application agency
Report on trademark retrieval;
Advice on trademark application by trademark laws and regulations in China;
Application for trade mark.

Other Agency
Trademark inquiry, renewal, transfer, modification, authorization record, opposition, review, etc.

Trademark Infringement Combating
Against the manufacture, sales, publicity, payment and other aspects concerning trademark infringement.
Method: litigation, administrative complaint, trademark record in custom.

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Copyright Legal Service

Copyright Application
Copyright registration of literary works, fine works, software works, music works, etc.

Infringement Combating
Against any website infringing the copyright of literary works, fine works, software works, music works;
Scope: comprehensive combating on infringement related to the infringing website’s domain name, IDC hosting, website promotion, pay link and other aspects.
Method: lawyer’s letter, administrative complaint, litigation.

Policy Consultancy
Our attorneys are expert in China laws and administrative policies on copyright.

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Patent Legal Service

Administrative Affairs
Drafting patent application, patent claims and other documents
Patent application;
Paten re-examination application, drafting application document, re-examination statement or reasons and other documents;
Invalid patent application, drafting application document, statement or reasons and other documents;
Communication and negotiation with patent officer in the process of patent application and dispute settlement.

Patent Strategy
Establishment of patent protection system, determination on the protection scope of peripheral patent and the establishment of patent pool.

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Trade Secret Legal Service

There has promulgated no Trade Secret Law in P.R.C, while the regulations concerning trade secret are respectively provided in Anti-unfair Competition Law, Labor Contract Law and other laws or regulations, such complicated legislation makes it crucial for international companies in China to maintain the legality and effectiveness of any legal documents containing trade secret. 

Drafting and Modification of Legal Documents
Localizing clients’ documents related to trade secret by China laws and regulations;
Drafting various legal documents concerning trade secret on clients’ demands, including the Confidential Articles of Association, Non-infringement Undertaking, Non-disclosure Agreement, Non-competition Agreement, Project Non-disclosure Agreement, Confidential Undertaking, etc.

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Foreign Investment Legal Service

Establishment
Drafting feasibility report, the articles of association, application and other documents basing on the materials provided by the client;
Reply to clients’ questions in the process of company establishment, advising and solution preparation and solution designing;
Handling the approval and administrative registration procedure of company establishment;
Handling the registration in foreign exchange administration, tax authority, statistics department and financial department;
Application for general taxpayer identification;
Services on other matters regarding company establishment.

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