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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.

How Can the Double Wages Payment Provision be Misused In China?

Posted on January 13, 2014 by yytbest

(By You Yunting) In order to protect the legitimate rights and interests of laborers and to avoid enterprises failing to conclude a labor contract with laborers, China’s Labor Contract Law stipulates that, where an employing unit fails to conclude a written labor contract with a laborer that has provided labor services for more than one month but less than one year, it shall pay double wages payment to the laborer each month.

In practice, however, many enterprises found this stipulation being misused. To achieve double wages payment, some laborers intentionally failed to conclude the written labor contract with their employing units and then brought the employing units to labor arbitrations claiming for double wages payment. In our post, we would like to introduce a typical case where a laborer in charge of human resources who deliberately did not conclude a labor contract with its enterprise is supported by the courts to receive double wages payment after their departure. Foreign investors who do business in China should be aware of this potential labor risk.

How to Ascertain a Director’s Liability in Chinese Bankruptcy Liquidation?

Posted on January 9, 2014 by yytbest

(By You Yunting and Wang Ting) With many foreign investors establishing enterprises in China, there are many successful examples as well as the inevitable examples of failure. Bad management may lead an enterprise to eventual failure. In the situation where an enterprise goes bankrupt due to poor management, even an individual foreigner, playing the role as a director or senior officer, may have to assume personal liability. Such liability may arise from either civil or criminal laws. Today, we will discuss what kinds of liabilities directors may assume in bankruptcy liquidation.

Could Audi Succeed in Applying for “SQ2”, “SQ4” and “Q9” Trademarks in Mainland China?

Posted on January 8, 2014 by yytbest

(By Luo Yanjie) Abstract: A subsequently applied trademark must not be identical with or similar to a prior trademark. The trademark submitted for registration must have sufficient characteristics that allow it to be distinguishable. A few days ago, foreign media outlets reported that Audi had filed several trademarks application for model names, including SQ2, SQ4 and Q9. This is a sign that these vehicles will likely be sold in China in the future.

According to our research, further information about those trademarks is not yet available in Mainland China. This is likely either because Audi has not started the application procedures, or because the Trademark Office has not yet input Audi’s application information online. However, this does not affect our analysis on the outlook of those trademarks in mainland China.

Was Tencent’s Unverified Non-Competition Agreement Illegal?

Posted on January 7, 2014 by yytbest

(By You Yunting) Abstract: Many of Tencent’s non-competition contracts, recently reported online are likely not real due to obvious invalidity. If the contracts were genuine, one might wonder about the intelligence and morality of Tencent’s managers and officers. These agreements are arrogant, domineering, selfish and largely ignorant of relevant laws. It is hard to imagine how these contracts could come from a listed company with billions of dollars. Additionally, Tencent could possibly be required to pay large amounts of compensation to departing employees in order to fully comply with the relevant laws.

Why NEXON’s BNB Failed to Accuse Tencent’s “QQ堂” of Copyright Infringement?

Posted on January 6, 2014 by yytbest

(By Luo Yanjie) Abstract: The Copyright Law protects “expression” rather than “thought”. For the purposes of the Copyright Law, “works” refer to original intellectual creations in the literary, artistic and scientific domain, insofar as they are capable of being reproduced in a specific tangible form. Works without originality are not protected by these laws.

In recent years, there has been a serious plagiarism problem in the field of online games. Considering that online games act as computer software, laws protect its “code” other than game mode and method. The case in today’s post will elucidate this principle.

Why Only an Interested Party may File an Opposition to a Trademark Application in China

Posted on January 3, 2014 by yytbest

(By Luo Yanjie) Abstract: The new Trademark Law stipulates that only the interested party may file an opposition to a trademark application based on relevant grounds. Previous opposition proceedings were so complicated that the new Trademark Law removes the trademark opposition review proceedings completely, with the exception of the review period of twelve months.

Our Trademark Law has been revised many times since its inception in 1982. In August 2013, the National People’s Congress approved the latest revised Trademark Law. In today’s post, we will analyze and compare the two Trademark Laws from the standpoint of the revised opposition system.