When a Preceding User of a Trademark Counters a Subsequent Registrant in China?

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(By Luo Yanjie) Abstract: China’s new Trademark Law still enforces the principle of “first to file,” but at the same time a prior user of a trademark only need prove to some extent that their prior use of a registered trademark had a degree of popularity, and need not prove that a subsequent user of the trademark “squatted” the trademark by registering it. If the board approves such prior use, the prior user will have the right to continue using the trademark in the original scope of use. “Improper means” as stated in Article 31 of the Trademark Law, refers to situations “where the applicant knows or should have known that the trademark had been used by others with a certain degree of influence, and preemptively registered the same, then such applicant shall be determined to have used improper means to register the mark.”

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The Confusion of Affiliated Companies shall Assume Joint Liability for Their Debts

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(By Luo Yanjie) Abstract: Company’s independent status as a legal person is a prerequisite for bearing liabilities independently incurred to the company. If a company loses its independent status as a legal person, shareholders shall bear several and joint liability for the debts of the company or the affiliated company, similarly for debts incurred in affiliated companies.

    In recent years, there are many disputes regarding abuse of company’s independent status as a legal person that many intelligent merchants attempted to evade the payments of debts by abusing the company’s independent status as a legal person or the limited liability of shareholders. In today’s post, we would like to introduce a typical case regarding the confusion of company’s independent status as a legal person on the Cases Guidance of the Supreme People’s Court in China as follows.

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The Impact of Criminal Inducements and Controlled Deliveries on the Conviction of Business Secret Infringement Offences

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(By Wu Pengbin)  1. Introduction

I was the defense counsel of this case, in which the defendant was induced to conduct an illicit transaction and involved in a controlled delivery. The case facts are summarized as follows:

The defendant, Mr. Zheng resigned from his employment as an engineer from the informant, Sany Heavy Industry Co., Ltd. (referred to as ‘SANY’ hereafter) two years ago before the crime was committed. As charged by the People’s Procuratorate of Fengxian District, Mr. Zheng sold SANY’s technical drawings he illicitly obtained to ‘Mr. Zhou’, who paid in cash for the sale (at the price of RMB 700,000), and was caught red-handed by the police of Fengxian Public Security Bureau. The drawings sold by Mr. Zheng was recognized to be business confidential and worth about RMB 800,000.

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How an Employer Terminates a Labor Contract with an Unqualified Laborer in China?

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(By Luo Yanjie) Abstract: “where a laborer is unqualified for his work and remains unqualified even after receiving a training or an adjustment to another work post”, the employer may terminate a labor contract. The employer shall, if terminates a labor contract with an unqualified laborer, prove the employer to be incompetent from many aspects not just based on a bad performance.

Pursuant to the Labor Contract Law, there are many conditions for termination of a labor contract with laborers. Among these conditions, the most used one is that a labor is unqualified for his work. This means, the employer may not consider rescinding a labor contract unless a laborer is unqualified for his work. During the process of termination, among many disputes between laborers and employers, we would like to introduce a typical cases regarding termination of an unqualified laborer from Case Guidance of the Supreme People’s Court.

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What is the Weakness of Getty Images China’s Protection Litigation against Photo Infringement?

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(By You Yunting) Recently, Getty Images China brought cases regarding copyright infringement arose from Weibo to courts. These companies sued by Getty Images China almost take a similar pattern like that: first these companies have outsourced its right of operation for their Weibo to ads enterprises, then on its Weibo ads enterprises published photos that Getty Images China owned in their thought, and finally these companies were sued by Getty Images China. Some customers asked us how to face such litigation. We will share our analysis on this question and introduce a case which Getty Images China lost its litigation in the Supreme People’s Court.

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Internet Society of China Published the Convention of Self-Discipline for Internet Terminal Security Service

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(By You Yunting) On December 4, 2013, Internet Society of China (the “ISC”) published the Convention of Self-Discipline for Internet Terminal Security Service (the “Convention”) in Beijing. Those eight Internet terminal security service providers, such as Tencent (0700.HK), Baidu (NASD: BIDU), QIHOO (NYSE:QIHU), Kingsoft Corporation Limited (03888.HK), RISING, Jiangmin Technology, TOPSEC and NetIQ Mobile Inc, signed on the Convention. Afterwards, there are about 23 companies, i.e. SOHU (NASDAQ:SOHU), Sogou, Xunlei and Xiaomi Technology signing related documents in favor of the Convention. The Convention, comprising of 6 chapters and 27 articles, aims to protect legal interests of users, maintain a fair and harmonious market competitive environment and promote the healthy development of internet industry.

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How China Government Regulates Risk Prevention for Bitcoin Transaction？

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(By You Yunting)  The Circular on Issues Concerning Risks Prevention forBitcoinwas published on December 3rd in regards to regulating the bitcoin bubble, a virtual currency bubble, that has exploded in popularity in China and soared in value in recent months.The circular was issued jointly by People’s Bank of China, Ministry of Industry and Information Technology (the “MIIT”), China Banking Regulatory Commission (the “CBRC”), China Securities Regulatory Commission (the “CSRC”) and China Insurance Regulatory Commission (the “CIRC”), which states that Bitcoin has no legal status of monetary equivalent and must not circulate on the Chinese market.

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MOC Issues New Censorship Regulation on Online Game and Online Music

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(By You Yunting) Pursuant to the Implementing the Administrative Measures for Content Self-review of Network Culture Operators that came into effect on December 1, 2013, an Internet entity holding an Internet Culture Business License may be entitled to self-examine the contents of online game and online music but the operators of said internet entity need to attend a content self-review training hosted by the Ministry of Culture.

The specific contents are as follows:

1.      Licensed Scope of Business:

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Why BURBERRY’s Classic Pattern Registered Trademark was Revoked in China？

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(By You Yunting) Earlier in November, China’s Trademark Office announced canceling Burberry’s trademark of the “Haymarket Check” in China, known as iconic tan, black and red tartan (the “disputed trademark”), under Class 18 for packaging and bags because Burberry had not even used the registered trademark for over three years in China by the media.

A Chinese bag and apparel maker Polo Santa Roberta, who had disputes with Burberry for many years, filed an application with the China’s Trademark Office for revoking the disputed trademark that Burberry had not used for over three years. The State Trademark Office decided to revoke Burberry’s trademark due to inadequate evidence from Burberry after consideration, but Burberry applied for review with the Trademark Review and Adjudication Board, triggering heated debates in China.

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How Patentees Protect its Publicized Invention without Grant of Patent Rights?

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(By Luo Yanjie) Abstract: After the official publication of an application for a patent of invention, the applicant may demand the entity or individual exploiting that invention to pay an appropriate fee, but is not entitled to prevent others from using the patent. After grant of patent rights by the patent office, the applicant has no right of demanding the subsequent entity or individual to pay an appropriate fee. In today’s post, our case is involved in the 2011 Min Ti Zi No. 259 Civil Judgment of the Supreme People’s Court’s

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Why China’s Courts Held an Ambiguous Attitude to the Rush Registration of Another’s Works as a Trademark?

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When handling a dispute between trademark and copyright, Chinese courts always apply a rather high standard to determine whether works protected under trademark law will also receive protection under the copyright law. Our website previously discussed this question in the posts Analysis on Proof Requirements in Figurative Trademark Infringing Others’ Copyright Cases by China Court and Why the Calligraphic Character’s Copyright Failed to Defeat Trademark Right.Today, we’d like to introduce a case regarding conflicts between a work of fine art and a trademark, due to the identical combination of Chinese characters and English letters.

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Why Shanghai Court Enforces Trademark’s Diligence Obligation on Original Equipment Manufacture?

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(By You Yunting) Original Equipment Manufacture (the“OEM”) refers to a commercial model where the Principal person is responsible for the brand, research and design, and marketing, meanwhile, the manufacturer is responsible for production. As a big manufacturing country, OEM is an important way for our manufactured products to participate in international competition. Under China’s Laws, however, it is unclear whether OEM constitutes as a trademark infringement, and local courts have handed out different decisions for this problem. According to the author’s information, Fujian higher court, Zhejiang higher court and Shanghai higher court held that OEM manufacturers does not involve trademark infringement, but Guangdong higher court decided that the OEM manufacturers shall take responsibility for trademark infringement in many cases. The Supreme Court has not yet expressed its opinion towards this problem.

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How A.O.SMITH Corporation Protects Its Interests against the Free Rider AOSIMIHE?

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(By Luo Yanjie) Trademark infringement via the unauthorized use of an enterprise’s name is a common phenomenon in China. Since the requirements for registering a company in Hong Kong are well known for being comparatively lax, many companies attempt to register well-known trademarks as an enterprise name in Hong Kong, and then run a business in Mainland China using this registered name, effectively fulfilling its role as a “free-rider” of another’s well known trademark.

 The A.O.SMITH Corporation was founded over 100 years ago in Milwaukee, Wisconsin, USA, and is a global leader applying innovative technology and energy-efficient solutions to products marketed worldwide. However, the “American”AOSIMIHE (note: AOSIMIHE is a rough approximation of the name A.O. Smith transliterated into Chinese) Appliances (International) Group Ltd., registered in Hong Kong, is a free rider attempting to imply a connection between it and the United States-based A.O. Smith Corporation. Based on its Hong Kong company and trademark registration, the former succeeded in registering its “AOSIMIHE” trademark in Mainland China. Today, we’ll discuss how A.O.SMITH Corporation protected its legal interests against the “American” AOSIMIHE Appliances (International) Group Ltd.

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China Supreme Court Issued A New Typical Trademark Infringement Case of OEM

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(By You Yunting) As a big manufacturing country, China deals with a lot of products categorized as original equipment manufacturing (the “OEM”). With regard to whether OEM constitutes trademark infringement, where local courts had handed out different decisions and infringing standards for this problem, the Supreme People’s Court has not yet expressed a clear standard for determining. Recently, China’s Supreme People’s Court has published the 2012 Top 50 typical trademark cases, and, among them, there is a case concerning OEM trademark infringement, where the manufacturer of an OEM won an infringement claim against it by the trademark holder. From the SPC’s decision in this case, we find rather clear evidence of the court’s attitude toward this particular issue.

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