(By You Yunting) Recently, the Ministry of Culture has issued the Notice of Ministry of Culture on Regulating Online Game Operation and Strengthening Interim and Ex Post Supervision (Referred to as “Notice”), which will be put into effect as of May, 2017. The Notice contains lots of specific policies, including the restrictive policy on providing virtual props and value-added services of an online game by sweepstakes (Referred to as “Item Sweepstakes”), which are the significant sources of profits for game companies. In this article, we’ll discuss whether this policy would affect the incomes of these game companies or not.
(By Yue Mengyan) There are many applicants who register a tremendous number of trademarks without the use-oriented purpose. Moreover, they register trademarks on obvious malicious purpose. In such situation, their enforcement for trademark protection shall be limited and their claims for compensation against trademark infringement may not be favored by the court.
Appellant (Plaintiff at the first instance): Guangzhou Zhinanzhen Exhibition Service Co., Ltd. (the “ZHINANZHEN”)
(By Yue Mengyan) Pursuant to China trademark laws and regulations, if certain trademarks have been already registered for certain goods, applicants cannot apply for such same or similar trademarks for any same or similar products. However, if the trademark coexistence agreement is made by the right holder of prior registered trademark and applicant of an identical or similar trademark without interfering in each other’s interests, then it is possible for the applicant to successfully obtain the approval of such application.
1. The Standing Committee of the National People’s Congress Promulgates the Cyber Security Law of the People’s Republic of China
The Standing Committee of the National People’s Congress promulgated the Cyber Security Law of the People’s Republic of China on 7th November 2016 to clarify duties and power of regulatory authorities about cyber security and legal responsibilities for personal information protection, strengthen individual’s control of private information and take tougher actions against infringement on personal information. [Full Text]
(By You Yunting) Some users of ZHIHU.com (One of the most well-organized community for sharing knowledges online) asked: Would the network host infringe any right while singing at his or her own live-show room? If one host receives the user contributions from the audiences for his or her singing at such live-broadcast room, would such behavior infringe any right? Here come my answers:
The biggest problem of the hosts’ singing at their own live-show rooms is not about whether such behaviors infringe any right or not. Instead, the right holders of such songs have tremendous difficulties in protecting their rights.
(By Wang Ting and You Yunting)The limited liability of the shareholders means that the liability of the shareholder to the company are limited to its capital contribution, and the independent personality of corporation means that the Company shall fulfill its external liabilities by all of its properties. Therefore, the shareholders usually do not take personal responsibility in IPR infringement cases even when the long-term business of the company is infringement of the intellectual property rights (“IPR”) in most cases. However, today we will introduce a recent case, in which the shareholders were determined to take such joint liabilities for the IPR infringements.
(By Yue Mengyan) An employee violates non-competition clause in his previous labor contract with his former employer, and works for a new employer, which has a competitive relationship with his former one. Could the former employer claim the new employer to be liable for such infringement, in addition to the employee’s liability for breach of contract? Pursuant to relevant laws and regulations in China, we will introduce a case and make our analysis in the following.
Appellant (defendant of first instance): Liu Guoqing
1.The Ministry of Commerce Publishes the Provisional Rules on the Establishment and Change of Registered Records of Foreign Invested Enterprises
Published on 8th October 2016, the Rules consists of clauses on the application scope, registration process, supervision and inspection procedures, legal responsibilities, etc. relating to the registration policy for the foreign invested businesses applying for establishment or a change of registered records not involving special access rules of PRC, set out in the revised versions of four foreign investment related laws including the Law of Foreign-funded Enterprises, issued by the National People’s Congress Standing Committee. [Full Text]
(By Luo Yanjie) Trademark Office (the “CTMO”) has been increasingly tightened its standards on trademark reviewing and claiming that the trademark itself may cause “adverse effect”. Competent authorities are more than inclined to use such grounds indiscriminately by treating it as an all-purpose shield to deal with distinct situations. Recently, the Supreme People’s Court remedied such phenomenon by making its decision on the GAP Underwear’s cases. The following is our detailed introduction:
1. Decision of the Standing Committee of the National People’s Congress on Amending Four Laws including the Law of the People’s Republic of China on Wholly Foreign-Owned Enterprises
Published on 5th September 2016 and coming into effect on 1st October 2016, the Decision involves the amendment of Law of the PRC on Wholly Foreign-Owned Enterprises, Law of the PRC on Chinese-Foreign Equity Joint Ventures, Law of the PRC on Chinese-Foreign Contractual Joint Ventures and Law of the PRC on the Protection of Investments of Taiwan Compatriots. According to the amended laws, the registration system applies to foreign invested companies, joint ventures, Chinese-Foreign cooperative companies, which are not required by national laws to follow special market access administration rules promulgated by or with approval of the State Council, when they are being established or undergoing a change. The decrees issued by the State Council ordering a temporary change of laws and rules for the free trade zone as authorized by the Standing Committee of the National People’s Congress will no longer continue in effect. [Full Text]
(By Luo Yanjie) Recently, the Supreme People’s Court interpreted a definite attitude through a complicated case lasting for years that prior-used logo shall not be used as counterargument against latter registered trademark except under certain circumstances. The followings are our detailed introduction:
Introduction to the Case:
1st Retrial Petitioner (Plaintiff at first instance, Appellant at second instance): LIANG Huo (the “Liang”);
2nd Retrial Petitioner (Plaintiff at first instance, Appellant at second instance): LU Yijian (the “Lu”)
1. The Ministry of Transport and Seven Other Departments Co-Promulgate the Interim Measures on the Administration of Online Taxi Booking
The Ministry of Transport, the Ministry of Industry and Information Technology, the Ministry of Public Security, the Ministry of Commerce, the State Administration for Industry and Commerce, the General Administration of Quality Supervision, Inspection and Quarantine and the Cyberspace Administration, of the People’s Republic of China co-promulgated the Interim Measures on the Administration of Online Taxi Booking (“Measures”) on 14th July, which will take effect on 1st November. Qualified private cars under the Measures can be used as vehicles bookable online and registered as “taxis for passengers to be booked online”. The Measures further expressly sets out that “the fare for the vehicles bookable online is subject to variable market prices, except the municipal government believes it necessary to implement the government’s guidance price”, “any vehicle bookable online that has been driven for up to 600 thousand kilometers must be reported as an abandoned vehicle”, and “any person driving a vehicle bookable online is required to have no criminal record”. [Full Text]
1. The Ministry of Justice Issues the Notice on the Revocation of the Notice of the Ministry of Justice and the Ministry of Construction on Strengthening the Notarization Work for the Property Registration Administration
According to the Notice of the Ministry of Justice on the Revocation of the Notice of the Ministry of Justice and the Ministry of Construction on Strenthening the Notarization Work for the Property Registration Administration, notarization is not necessary to complete real estate registration formalities relating to inheritance, will, bequeathing, ownership transfer of property involving persons from abroad or Hong Kong, Macao or Taiwan. [Full Text]
1. The State Council Publishes the Guiding Opinions on the Establishment and Strengthening of the Credit-Based Incentive and Punishment System in Order to Accelerate the Build-up of Social Credit and Moral Awareness
On 12th June 2016 the State Council published the Guiding Opinions on the Establishment and Strengthening of the Credit-Based Incentive and Punishment System in Order to Accelerate the Build-up of Social Credit and Moral Awareness (“Guiding Opinions”)
The Guiding Opinions indicates the necessity of the rapid development of the social credit system, making information about a person’s credit more widely available and shared, by using motivation and restraint in a legal way and creating a credit-based incentive and punishment mechanism involving government authorities and other communities in various regions, departments and areas, in order to make sure that people could do businesses in legal and honest ways without violating the good market order, in a society with good moral awareness. [Full Text]
1. Notice of the State Council on Issuing the Transitional Plan on Adjusting the Distribution of the Value-Added Tax Revenue between the Central Government and the Local Governments after the Comprehensive Promotion of the Pilot Program of Replacing Business Tax with Value-Added Tax
This Notice was issued by the State Council on 30th April 2016, stating that the transitional plan described therein would come into effect on 1st May 2016 and the transitional period would be two to three years. According to this Notice, the repayment base for the central government and the payment base for the local governments should be assessed on the base of the year 2014, and the total income from payments for the value added tax would be shared by the central government and the local governments, of which 50% belongs to the central government and the rest 50% would be allocated to and shared by the local governments of the areas of the taxpayers.