(By Yu ZhiYuan) On 28 December 2013, the decision on amending the previous company law was promulgated by the National People’s Congress. The amendment this time will concentrate solely on changing the corporate capital system dramatically in the following three ways. First, the registered capital to-be-paid-in system will be launched. Second, the minimum registered capital will no longer be required. Third, the maximum proportion of intangible assets to the total registered capital will no longer be required. Obviously the amendment was made as a response of legislative authorities to the resolutions approved at the Third Plenary Session of the Eighteenth Central Committee. This article provides an analysis and brief comments on the amendment.
NOVARTIS Awarded Injunctive Relief in Trade Secret Action in China
(By You Yunting) According to reports, in February 2014, Shanghai No.1 Intermediate People’s Court approved plaintiff NOVARTIS’s application requesting the court to order an injunction ruling so as to protect its legal rights and interests in a trade secret litigation.
According to reports, NOVARTIS claimed that the defendant should not disclosure, use or allow another party to use the 879 documents on its trade secret lists that shall keep secret.
For intellectual property infringement, China’s supreme People’s Court may also set a temporary injunction on judicial interpretations of the Patent Law, Trademark Law and Copyright Law; we have previously provided posts discussing related systems in other areas of intellectual property law, such as patent preliminary injunction, copyright injunction and litigation injunction. With regard to trade secrets, however, no particular injunction is set on judicial interpretations of the Anti Fair Competition Law.
Should Qian Zhongshu’s Letter Manuscripts be Protected After He Passed Away?
(By You Yunting) Abstract: In the proceedings of Qian Zhongshu’s letter manuscripts, in ruling whether the privacy right of decedents to a person should be protected by laws, the court decided that the relevant letters and manuscripts are irrelevant to the public interest and thus are private. However, the protective scope of the privacy right between the decedents of a person and a currently living person is different, and the protection of privacy right of decedents is weaker than the right of the public to be informed. The auctioning of these letters and manuscripts would, if it didn’t act to harm the reputations of Qian Zhongshu’s successors and relatives, not constitute an invasion of privacy.
Why Court Decision Exempts Wal-Mart From liabilities of Trademark Infringement?
(By Luo Yanjie) Abstract: In the event that a party unknowingly sells goods that infringe upon another party’s exclusive right to use a registered trademark but can prove that it has obtained the goods lawfully and is able to identify the supplier shall not be held liable for damages. In a case that a trademark holder separately sues sellers, despite no laws requesting the manufacturers to join in the lawsuit, for the purpose of preventing contradictory judgment, the courts could notify him or her requesting joinder. It is the manufacturers that could decide whether acting as a third party to join the lawsuit.
Why Could “Kellogg Company” not be Registered under Class 41 for Educational Services?
(By You Yunting) Kellogg Company, an American multinational food manufacturing company, produces cereal and convenience foods, including cookies, crackers and fruit-flavored snacks. However, in China, someone tried to apply for “Kellogg” as a trademark under Class 41 for educational services. After discovering this, Kellogg Company filed an opposition, but suffered a setback at first in that both the TRAB and Beijing No.1 Intermediate People’s Court rejected its claim. After Kellogg Company appealed, Beijing Higher People’s Court supported its claims, on the ground that the disputed trademark infringed the prior enterprise name of Kellogg Company.
How does Microsoft Settle its Problems of Software Copyright Infringement in China?
(By You Yunting) With the serious intellectual property rights infringement in China, many foreign enterprises find it difficult to protect their rights. In today’s post, we will introduce a case detailing how Microsoft settles its problems of software copyright infringement in China.
Introduction to the Case:
Plaintiff: Microsoft
Defendant: Sailun Co., Ltd (SHA: 601058)
Court of first instance: Qingdao Intermediate People’s Court
No.: (2013)青知民初字第80号, (2013)青知民初字第81号, (2013)青知民初字第82号
Questions and Solutions to Enforcement of Rights Protection by Overseas Software Enterprise in China
(By Luo Yanjie) Abstract:In the litigation of software infringement, the most fundamental evidence is that which is used to prove that the infringed software used by the defendant is plaintiff’s. It is urgent that China strengthens its punishment of infringement so as to protect commercial order and stability.
Rhino Software Inc. (hereinafter the “RhinoSoft”) developed “Serv-U”, a widely adopted FTP server software. In recent years, RhinoSoft have been trying to enforce its rights against the unauthorized use of Serv-U in China. Our previous post Analysis on the Assumption of Liability in the Serv-U Infringement Lawsuit in China has already introduced some of our analysis on this issue. In today’s post, we will be doing a complete analysis of the problems and potential solutions of RhinoSoft’s enforcement of rights in the proceeding litigation from a practical perspective.
Tenfold Punitive Damages for Auchan’s Inferior Foods Reasonable in China?
(BY You Yunting) Chinese food safety problems have always puzzled consumers in China. The Food Safety Law that came into force in 2009 strengthens the legal liability of food enterprises that produce inferior foods. Earlier in 2013, China’s Supreme People’s Court published a guidance case regarding the judgment handed down by Jiangning District Lower People’s Court, in Jiangsu Province. In this case, the Auchan Store that sold expired foods was ordered to offer tenfold damages to consumers. For overseas companies that intend to invest in the industry of food production and sales in China, such legal risks should be noted. In judicial practice, however, some local courts have made judgments deciding that products for personal use should not be compensated. Another point of this case is that the Supreme People’s Court has overruled the verdicts issued by some local courts.
GAP Defeated a Trademark Squatting in China After 20 Years
(By You Yunting) It is well known that GAP is a famous brand in clothing. However, in China, someone attempted to register “GAP” under Class 9 for eyewear products as a trademark. GAP has been defeating similar trademark squatting for over 20 years.
Introduction to the Case:
Applicant of a retrial (Plaintiff in the first instance and Appellant the in second instance): GAP (ITM) INC.
Respondent (Defendant in the first instance and Appellee in the second instance): Trademark Review and Adjudication Board (the “TRAB”)
Why China Court Decision the Use of Registered Trademark to Non-infringement?
(By Luo Yanjie) Abstract:A trademark shall be distinctive and a rational use of the characters in a trademark does not constitute infringement. The 2013 version of the Trademark law clearly stipulates that where an identical or similar trademark has been used in connection with the same goods or similar goods by others before the registrant’s application, the exclusive right holder of said registered trademark shall have no right to prohibit other people from using the aforesaid trademark from continuous use of such trademark within the original scope, but may request its users to add proper marks for distinction.
Why Couldn’t the “CASTEL” Trademark Prevent AnotherFrom Registering As Enterprise Name?
(By Luo Yanjie ) Abstract: Generally, the trademark-right and the right of an enterprise-name are independent of each other. However, these rights, which also act as an enterprise-business-mark-right and are comprised of an intellectual property right, are likely to be so similar in their nature and characteristics that they may objectively cause disputes. To reach a judgment on whether there has been a breach of the principle of good faith and recognized commercial-morality as regulated in the anti-unfair Competition Law, the court would make a judgment based on the particular circumstances of a case.
Why the TRAB Removed the Johnson & Johnson’s “ONETOUCH” Trademark?
(By You Yunting) U.S. drugmaker Johnson & Johnson (NYSE:JNJ) and Guilin Zhonghui Biotechnology Co., Ltd are in fierce competitions on blood glucose test strips in China. Johnson & Johnson has always accused Guilin Zhonghui Biotechnology Co., Ltd of producing counterfeits of Johnson & Johnson’s OneTouch blood glucose test strips used by patients with diabetes, but did not receive support of the courts in responding litigations. Recently, Guilin Zhonghui Biotechnology Co., Ltd won this dispute through revoking Johnson & Johnson’s ONETOUCH trademark. The followings are the case introduction and our analysis.
Why could an Unregistered Trademark Obtain Protection in Beijing Higher People’s Court?
(By Luo Yanjie) Abstract: To judge whether two goods are similar, generally is ruled upon the basis of the Chinese Goods and Services Classification and then on the courts’ interpretation of different cases and facts. The trademark application shall not be a means to register a mark that is already in use by another party and enjoys substantial influence, and shall also not infringe upon another party’s prior existing rights.
The statement “Goods and service are similar” refers to the goods and services that are associated with each other and thus are likely to produce confusion among the relevant public (our previous post, Why the “NEXT” Trademark could Receive Cross-class Protection in China had introduced similar problems), in which the actual situations conflict with the Chinese Goods and Services Classification of the Chinese Trademark Office (the “CTMO”). In today’s post, we would like to introduce a typical case.
Shall Silk Street Undertake Compensation Liability to LOUIS VUITTON MALLETIER for Trademark Infringement?
(By Luo Yanjie) Abstract: Market-managers should fulfill their duty to exercise reasonable care to cease trademark infringement. “Intentionally facilitating an infringement by another person or party of an exclusive right to use a registered trademark including through acts such as storage, transportation, postage, concealment and similar” shall be deemed as an infringement of the exclusive right to use a registered trademark.
Our website once introduced a post that the Name on the American Notorious List Could Also be the Well-known Trademark in China. Actually, Silk Street is not a company that sells fake goods, buta market consisting of many small shops. It is undeniable that the market of Silk Street was once listed alongside the Pirate Bay in the notorious market by USTR because it has sold too many fake products. Considering there are many fake products in Silk Street, the market manager shall be found liable. In today’s post, we would like to introduce and discuss a case where the market manager was found liable for its shops’ selling fake goods.
Ctrip was Fined RMB 1.5 Million by China NDRC for Imposing Train Ticket Insurance
(By You Yunting) Recently it is at the peak passenger flow of Chinese Lunar Spring Festival in China. Billions of people would take train back hometown. Therefore, Chinese governments enhanced its suppression and punishment to illegal acts relevant to train tickets purchase. The day before yesterday, the Chinese National Development and Reform Commission published a notice (note: the link is in Chinese):
Some companies, who sell airline tickets and train tickets but who had raised arbitrary fees and prices at the peak passenger flow, were got severe punishment. Tieyou.com under Ctrip.com was fined 1.5 million yuan due to its imposing an insurance fee counting from 10 to 20 yuan in selling train tickets. Now Tieyou. Com accepts such punishment and changes compulsory insurance purchase into an optional one.