(By You Yunting) National People’s Congress, the China’s legislature, has authorized the State Administration of Industry and Commerce (the “SAIC”) to propose the revision draft of the Anti-unfair Competition Law which has been implemented for more than twenty years in China. Recently, Shanghai Administration for Industry and Commerce held a meeting in making suggestions upon business operators and administrative authorities for the revision. In the meeting, I delivered a speech with the following presentation.
Symantec Corporation Uses both Criminal and Civil Methods to Defeat Piracy in China
(By You Yunting) It is well known that China is facing a serious problem over piracy. When claiming for his enforcement over cases suspected to involve criminal offences, the right holders often report to the Police attempting the use of criminal laws to strike with piracy. Furthermore, in accordance with Chinese laws and regulations, upon the completion of criminal proceeding, the party against the piracy may, on the basis of criminal judgment paper, file civil lawsuits against the pirated to receive compensation. Today we will introduce a case concerning Symantec Corporation’s enforcement against the pirated party, where Symantec Corporation instituted lawsuits against the pirated, as well as the companies which contributed to make pirated CDs and print the envelopes of the pirated software. As such, its lawsuits and claims are being backed by Shanghai courts.
Regulations against Intellectual Property Malicious Litigation in China
(By You Yunting) Malicious litigation refers to instituting a lawsuit through fictional facts and falsified evidences for the purpose of receiving unlawful benefits. In today’s post, we will introduce some provisions about malicious litigation in intellectual property laws and civil procedure law in China.
I. Provisions on wrongful litigation injunction can be applied into malicious litigation.
In litigations concerning patent, trademark and copyright, the right holder always applies for such litigation injunctions as termination of infringement, evidence preservation and property preservation. Where the court approved the application, if the litigation is proved to be malicious, the respondent may require the applicant to compensate for such losses. Article 13 of the Several Provisions of the Supreme People’s Court on the Issues Concerning the Application of Law to Terminating Infringement upon Patent Prior to Litigation stipulates that:
Competitor Using Recycled Budweiser’s Bottles Constituted Trademark Infringement
(By You Yunting) Our website has previously introduced the case where ABlnbev (China) Sales Co., Ltd filed a lawsuit against its competitor, who was unauthorized to use the bottles with the trademarks “Budweiser” and “ABlnbev”. Recently, the Shanghai Higher People’s Court made a final judgment in favor of ABlnbev (China) Sales Co., Ltd.
Introduction to the Case:
Appellant: (Defendant at the first instance): Xiyingmen Beer Company (the “Company Z”)
Respondent: (Plaintiff at the first instance): ABlnbev (China) Sales Co., Ltd
Linking Copyrighted Movies Constituted Non-infringement
(By Luo Yanjie) Recently, our team represented a client who developed an App offering a linking service, in an infringement case over the linking of a copyrighted video on the mobile internet. The court made a final judgment in favor of our client, on the grounds that the safe harbor principle applied in this case. In today’s post, we will introduce this case below.
Introduction to the Case:
Plaintiff: China Film Media Asia Audio Video Distribution Co. Ltd (the “China Film Media Co. Ltd”)
Liabilities of Contributed Capital Surreptitiously Withdrawn in New China Corporate Law
(By You Yunting) In the end of 2013, China issued a revised Corporate Law updating the provisions about the contributed capital, as discussed in our previous post the Amendment to the Corporate Law. Today we will discuss the legal liabilities of promoters and shareholders with regards to the required contributed capital being surreptitiously withdrawn.
Assumption of liability
Pursuant to the updated Corporate Law, any shareholder who fails to make full payment of the capital contributions at the establishment of the company shall be jointly and severally liable for refunding the paid-in capital – in accordance with the amount of registered capital. As such, it is when the company is unable to pay its debts that the shareholders shall assume the liability of surreptitiously withdrawing the contributed capital.
Diagnostic Method Claim in the US
(By George Wu) Another important case concerning biotechnology was decided last year at the US Supreme Court: Mayo Collaborative Servs. v. Prometheus Laboratories, Inc., 132 S. Ct. 1289 (2012)
Prometheus Laboratories (“Prometheus”) had obtained a patent for a method of determining the optimal dosage of the drug thiopurine, which is used to treat auto-immune disorders. The use of thiopurine in the treatment of disease was not a new discovery, but the use of the drug had been made difficult by the fact that thiopurine is metabolized at different rate in different people. Accordingly, the same dosage could be too low to be efficacious in one patient, while too high and toxic in another patient. Prometheus made the discovery that by assaying for the metabolites of thiopurine, the rate of metabolism could be determined and the dosage could be adjusted according to the patient.
Beijing Court Rejected HUGO BOSS‘s Opposition against “H30SS” Trademark
(By Luo Yanjie) China is facing a worsening situation with regards to serious trademark squatting. With more and more registrars rushing to register possible trademarks that once were used by famous enterprises, there is little help for enterprises holding such famous trademarks. For example, a registrar has just succeeded in the grant of a trademark, similar with what HUGO BOSS AG had, under the class for cosmetics and fragrances. Today we will introduce this case as follows.
Introduction to the Case:
Why Shanghai Court Not Accept Nikon D600’s Dispute over False Advertisement?
(By You Yunting) Abstract: If Shanghai plans to become an international financial center, it is judicial fairness that is an important aspect of a very good investment environment that must be provided by governments. If the court attempts to protect an enterprise beyond the letter of the law, it will cause greater long-term damage on China’s interests, and on fairness and justice than any immediate benefits obtained now, whatever companies company achieves those benefits.
On March 15, 2014, China CCTV exposed the professional SLR quality problems of Nikon D600 SLR, where black spots frequently appear on photographs. After this exposure, our team, acting as a representative of our client Mr. Xu, brought the case concerning Nikon into court. On March 18, 2014, my colleague Luo Yanjie and our client filed a legal complaint to Huangpu District Primary People’s Court.
Why Wasn’t Baidu Library Protected Under Safe Harbor Principle?
(By Luo Yanjie) In our previous post Baidu Library Ordered to Pay Huge Huge Compensation on for Copyright Infringement, we discussed the amount of the compensation in the case of Beijing China Youth Book Inc. vs Baidu Library. Yesterday, we found out the reasoning and judgment held by Beijing No.1 Intermediate People’s Court. Thus, in today’s post we will analyze the legal basis about this case from the perspective of the judgment.
Introduction to the Case:
Plaintiff: Beijing China Youth Book Inc. (the “Youth Book Inc.”)
What kinds of Copyright Shall Television Watch-back Services Be?
(By You Yunting) The U.S-based TiVo Inc. developed and marketed its TiVo, a digital video recorder (DVR), which can provide programs and services like on-demand and watch-back for its users. Similar to TiVo, Chinese cable operators and cable television stations provides similar services for its programs, shows and services. This means that users who miss the program can choose an on-demand program on the television. However, cable television stations are generally purchasing the right of broadcasting for the program, without the right of communication of information via a network. This purchase is at risk of copyright infringement. In a previous post Which Copyright Should an Internet TV Operator Purchase?, we discussed the difference between the right of broadcasting and the right of communication of information via network. Today we will introduce such a typical case in the following.
Baidu Library Makes Huge Compensation on Copyright Infringement for Publishing Press
(By You Yunting) Recently, in the proceeding litigation alleging copyright infringement, Beijing China Youth Book Inc. vs Baidu Library, the Beijing No.1 Intermediate People’s Court issued a judgment requiring that Baidu compensate Beijing China Youth Book Inc. 350,000 Yuan. When compared with the 20,000 Yuan compensation required for a pirated movie, the ordered compensation is much larger than expected. This simultaneously reflects the strengthening of legal sanctions against internet copyright infringement and suggests that the standard on which copyright infringement compensation is judged lacks rationality in China.
China Protects the Graphic User Interface for Software as of May 1, 2014
(By You Yunting) In our previous post, we introduced that Graphical user interface (the “GUI”) for software has not been protected in China. However, State Intellectual Property Office (the “SIPO”) suggested protecting the GUI in the latest Draft Revision of the Patent Examination Guidelines (the “Draft Revision”) on October 22, 2013. Recently, in the publication of the Decision of SIPO on Amending the Patent Examination Guidelines, It is the GUI that is protected by the Patent Law as of May 1, 2014.
Litigation Against Defective Nikon D600 Cameras
(By You Yunting) On March 15, 2014, China CCTV exposed the quality problems of the Nikon D600 SLR Camera – it frequently produces black spots on photographs. In today’s post, we will introduce analysis about what legal problems might be encountered in litigation.
Korean Game Company Defeated China Local Agent for Cancelleation of Rush-registered Trademark
(By Luo Yanjie) Today we will introduce an example of a trademark squatting case where a Chinese online game operator rush-registered a trademark. In this case that trademark was canceled by Trademark Review and Adjudication Board.