Bridge IP Law Commentary - Page 20 of 65 - Your Guide to China IP Law！

Why China Court Decision the Use of Registered Trademark to Non-infringement?

Posted on February 7, 2014 by yytbest

(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?

Posted on February 5, 2014 by yytbest

(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?

Posted on February 3, 2014 by yytbest

(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?

Posted on January 30, 2014 by yytbest

(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?

Posted on January 28, 2014 by yytbest

(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

Posted on January 27, 2014 by yytbest

(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.

Why VICTORIA’S SECRET could not Prevent Selling a Parallel Imported Genuine Product Online in China?

Posted on January 24, 2014 by yytbest

(By You Yunting) VICTORIA’S SECRET is the largest American retailer of lingerie whose products does not sell on the Internet in China. Considering the fact that a Shanghai-based company sold its products on the Internet in China and confessed that it was the unique designated general distributor in China, VICTORIA’S SECRET brought the Shanghai-based company to the court on the grounds of trademark infringement and unfair competition.

Introduction to the Case:

Plaintiff: VICTORIA”S SECRET STORES BRAND MANAGEMENT, INC．(the “VICTORIA’S SECRET”)

How Many Internet Products and Services are Added by the CTMO into Trademark Protection?

Posted on January 23, 2014 by yytbest

(By You Yunting) Abstract: The Chinese Trademark Office (the “CTMO”) strengthens the protection to the Internet products and services in adding the service items, including cloud computing, tablet computer, electronic reader, social-networking site and online bank, into the Chinese Goods and Services Classification. Protection category of Apps that applied to mobile network is, however, still not clear.

Trademark registration in China shall apply to the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks (the “Nice Classification”). Every year the CTMO will make a new amendment to the Chinese Goods and Services Classification and in 2014 the CTMO revised the tenth edition of the Chinese Goods and Services Classification.

Why the “NEXT” Trademark could Receive Cross-class Protection in China?

Posted on January 22, 2014 by yytbest

(By Luo Yanjie) Abstract: Generally, two goods that fall into the same similar group constitute similar goods. “Similar goods” refers to the goods that are identical in such respects as the function, purpose, industry, sales channel and consumers; or goods that are likely to lead the relevant public into thinking they are associated with each other and cause confusion.

Trademark registration in China applies the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks (the “Nice Classification”). Every year the State Trademark Office in China will update the Chinese Goods and Services Classification in accordance with the Nice Classification. A trademark shall be registered in accordance with the Chinese Goods and Services Classification. When a trademark dispute brought to a court, the Chinese Goods and Services Classification is not used only as a reference for judgment of similar goods or services.

Could Tencent be Exempt from Compensation for Losses of WeChat LiCaiTong? Part 2

Posted on January 21, 2014 by yytbest

(ByYou Yunting) Yesterday we explained the legal status of WeChat LiCaiTong and the exemption clauses of Tencent in Could Tencent be Exempt from Compensation for Losses of WeChat LiCaiTong ? Part 1. We will continue to analyze this in today’s post.

III. Could Tencent be exempted from liability for the risks of losses?

If any losses arise from the purchase from LiCaiTong, purchasers shall assume responsibilities in accordance with Tencent’s agreements. In my opinion, however, WeChat does not disclose the risks of LiCaiTong completely. Therefore, Tencent will not necessarily be exempt from its liabilities.

Could Tencent be Exempt from Compensation for Losses of WeChat LiCaiTong? Part I

Posted on January 20, 2014 by yytbest

(ByYou Yunting) Abstract： Tencent will make no compensation to WeChat users who lost all their money in purchasing its LiCaiTong (an online financial services product) in accordance with Tencent’s Users Agreement. However, where the mobile client system of WeChat’s LiCaiTong is so simple that WeChat users are deliberately not informed of the fund name before making investments and where WeChat discloses the risk of higher interest rates in an overly optimistic way, were there any loss in the view of LiCaiTong, Tencent will face the risk of assuming compensation liability on the grounds of its fault of inadequate risk disclosure.

Could an Additional Proof be Admitted in the TRAB’s Trademark Review?

Posted on January 16, 2014 by yytbest

(By Luo Yanjie) Abstract: The general principle of copyright authorship centers on the signature in the work pursuant to the Copyright Law. The Trademark Review and Adjudication Board shall determine the proof that provided by the administrative counterparty with strict and cautious attitude and consider the changes together with the combination of legal facts and objective conditions so as to make a ruling that protects the right holders’ legitimate rights and interests.

The people’s court shall have the right to revoke the ruling made by the Trademark Review and Adjudication Board (the “TRAB”) and order the TRAB to remake a ruling. For how the TRAB deal with the additional evidences provided by the administrative counterparty during the period of re-ruling, there are no clear laws and regulations. In today’s post, we would like to introduce a typical case with readers.

What’s the Difference in the 2014 version of Company’s Business License in China?

Posted on January 15, 2014 by yytbest

(By You Yunting) Our previous post introduced that recently China revised the Company Law. All Company’s business license will be changed in China to cooperate with this revision. In today’s post, we would like to introduce some leading reform measures in Shanghai and Guangdong Province which will be implemented all over the China. The following are the differences between the 2014 version of Company’s business license and the preceding one.

All companies shall renew its new business license

The prosperous coastal regions in China will fully renew its business license of commercial registration Since January 1, 2014. Enterprises registered in Shanghai and Guangdong province shall renew its business license before December 31, 2013. Failure to renew its business license will be fined.

Why Ronghe Shaofang Wine constituted Trademark Infringement to Maotai Wine?

Posted on January 14, 2014 by yytbest

(By You Yunting)Maotai, a well-known Chinese baijiu (the classic Chinese alcohol made from distilled sorghum that averages an alcohol content from of 53 percent), is made in Maotai Town, Huanren city in Guizhou Province. In Maotai town, there are many liquor factories but only the KWEICHOW MOUTAI CO., LTD (the “MOUTAI”) holds the “贵州茅台酒” trademark (the “disputed trademark”). On account of “Maotai” brand name glamour, such free riders likeother liquor factories’ use of the disputed trademark often happen. We would like to introduce a typical case regarding that Guizhou Ronghe Shaofang Wine Business Limited Company used a same bottle label and packaging with that of Maotai Wine but carries its “荣和”（pronounced “Ronghe” in English）brand in our today’s post. The final binding judgment contained by Beijing No.2 Intermediate People’s Court decided that such act of using the same bottle label and packaging constituted trademark infringement.

Why Guangzhou Intermediate People’s Court Decided the Contractual Terms not Protect by the Copyright Law?

Posted on January 14, 2014 by yytbest

(By Luo Yanjie) Abstract: The Implementing Regulations of the Copyright law stipulates “works” under the protection of the Copyright Law shall be under originality. “Originality” can be divided into two parts: independent creation and the minimum intellectual creation.

An enterprise filed a suit to the courts, alleging the defendant copied its contractual terms. One would wonder whether the terms of a contract shall be protected by the Copyright Law. The Guangzhou Intermediate People’s Court provided an answer that the terms in a contract may not be protected by the Copyright Law owing to the expression limitation of a contract. Here are the introduction to this case and our opinions for the following.