Bridge IP Law Commentary - Page 25 of 65 - Your Guide to China IP Law！

Can a database be Protected by the Copyright Law in China?

Posted on September 3, 2013 by yytbest

Abstract: in order to be considered a compilation, such works should typically possess a number of characteristics, such as the selection or arrangement of the data, and the originality in the presentation of said data. In other words, compilations generally require a modicum of originality and ingenuity present in order to receive some form of protection as an original work.

(By Luo Yanjie) Generally, the copyright of a database protects the arrangement of the database rather than to the contents. The case in today’s post demonstrates this point, and at the same time, provides a bit of good for thought. The following is the introduction to the case.

An Unregistered Trademark can be Licensed to Another Party for a Fee

Posted on August 30, 2013 by yytbest

Abstract: An unregistered trademark may lawfully be licensed to another person. If any third party had registered the trademark, the licensor’s actions will constitute a breach of license contract. Except where the licensor has committed obvious fraud, the validity and effectiveness of such a license contract upon unregistered trademarks cannot be denied.

(By Luo Yanjie) Generally, a trademark in a trademark license should be registered before it is licensed to any other party. However, in today’s post, we will discuss a particular case there the trademark licensed was unregistered at the time the license was concluded. After being heard by two courts and the Supreme Court, such a trademark license contract was ruled to be valid. The following is our analysis.

The Exposure Legal Defects of Chinese Crackdown on Online Rumors

Posted on August 30, 2013 by yytbest

(By You Yunting) Recently, Chinese governments have cracked down on the spreading of rumors online, and have arrested some web users for allegedly fabricating or disseminating online rumors. A lot of netizens have voiced their objections that this crackdown suppressed the “proper freedom of speech.” In our opinion, theoretically, online rumors shall better be handled through other means of self-remedy, such as the victims filing civil or criminal lawsuits against the alleged rumormongers. However, government intervention is in some cases a realistic necessity to more effectively crackdown online rumors, because in some cases the victims hurt by online rumors cannot file a lawsuit on their own initiative, often resulting from a failure to discern the rumormonger’s identity.

Trade Secret Litigation Injunction Rulings in China

Posted on August 26, 2013 by yytbest

(By You Yunting) According to media reports (note: the link is in Chinese), Eli Lilly and Company and Eli Lilly (China) sued an employee named Huang in the Shanghai No.1 Intermediate People’s Court. That court recently issued the first trade secret litigation injunction in China’s history, and ruled a litigation preservation that prohibited Huang from disclosing, using, or allowing any third party to use 21 documents that were protected as trade secrets by the plaintiff.

Inductions to the Case:

Does Using “Counterfeit Goods” Constitute Trademark Infringement?

Posted on August 23, 2013 by yytbest

Abstract: generally, consumers’ acts of purchasing infringing goods are not considered to constitute trademark infringement. However, some limits shall be given by laws and regulations to those that intend to manufacture and sell infringing goods to damage a trademark holder’s legitimate rights and interests. Based on such analysis, we don’t fully agree with the Chinese court’s decision in today’s post.

(By You Yunting) Pursuant to the Trademark Law, infringement refers to “manufacturing and selling” goods or services of a registered trademark without authorization, but does not include consumers’ acts of purchasing and using infringing goods or services. If laws entirely indulge consumers’ infringements, it is not entirely effective in protecting a trademark holder’s legitimate rights and interests. In today’s post, we will discuss a typical case evidencing such legal limitations. Here is our analysis:

What Legal Problems are GSK Scandal Involved within China’s Criminal Law?

Posted on August 21, 2013 by yytbest

(By Zhou Wei) On July 11, 2013, the Ministry of Public Security (the “MPS”) issued a piece of news on its official website that some senior executives of GlaxoSmithKline (China) Co., Ltd (the “GSK”) were being investigated for their involvement in serious unspecific economic crimes, demonstrating a scandal with GSK’s involvement in bribery in China. Utilizing currently disclosed information, this post is aimed at analyzing possible alleged criminal charges and criminal liabilities.

The Chinese Automotive Industry is a Hotbed for Systematic Vertical Monopoly

Posted on August 20, 2013 by yytbest

Abstract: Current regulations, created by ministries and commissions such as the National Development and Reform Commission (“NDRC”), formulate that automobile distribution should follow the hierarchy from sole distributor to brand distributors. This is to prevent in-fighting within the individual brand, however, the results is a legal hotbed for monopoly practices to eliminate or restrict competition.

(By You Yunting) According to Media’s reports, China Automobile Dealers Association (the “CADA”) recently confirmed that the CADA is actively cooperating with the NDRC’s anti-monopoly investigation. But a senior executive of CADA explained that the investigation is aimed at whether automobile manufacturing enterprises fixed the minimum sale prices to distributors, not about the issue of high profit of imported automobiles into China. Setting a high price for import automobiles is a business decision, and does not constitute as a monopoly conduct.

NDRC should Further Improve the Transparency of Administrative Law Enforcement on Price Monopoly.

Posted on August 18, 2013 by yytbest

Abstract: Five Shanghai gold retailers fined for price manipulation because although they were supposed to be competing with each other, the retailers conspired to fix the price, which constitutes as a horizontal monopoly, a clear violation of the Anti-Monopoly Law. The reason behind the five gold retailers’ fines is that their practices of horizontal monopoly caused more severe harm to consumer’s legal interest and social orders than that of previous vertical monopoly on limitation of resale prices made by Mao Tai, Wu Liang Ye, and six milk powder manufacturers. However, what is puzzling about this fine is that the punishments for this horizontal monopoly violation made by the NDRC were inferior to that of vertical monopoly violation.

Could Milk Powder Manufacturers Win the Lawsuits Against NDRC’ s Vertical Monopoly Penalty?

Posted on August 15, 2013 by yytbest

(By You Yunting) According to Chinese National Development and Reform Commission’s (“NDRC”) announcement, recently NDRC carried out anti-monopoly investigations into milk powder manufacturers and imposed fines on multiple offenders. When combined this announcement with the second instance court’s decision on Beijing Rui Bang Co., Ltd that was released last week by Shanghai Higher People’s Court, we have seen a sharp difference between NDRC and Chinese courts’ understanding of Article 14 of the Anti Monopoly Law. Therefore, if the punished milk powder manufacturers file an administrative lawsuit against NDRC’s fines, the Chinese court may not necessarily agree with the commission’s decision nor hold the punishment to be legal.

Can Prior Rights in a Business Name Counterfeit With a Subsequent Trademark Right?

Posted on August 13, 2013 by yytbest

Abstract: trademark holder is not necessarily entitled to prevent others from using its trademark into a business name because operation method needs to be judged. On the contrary, consideration upon prior right of business name does not just depend on first registration but on operation methods.

(By Luo Yanjie)Using another’s registered trademark as a business name is a common phenomenon of copycat brand names in China. In today’s post we would like to introduce a typical case to you. Relying on the fact that the business name “凯伦 Kanren” was registered earlier than that of the trademark, the court determined the defendant did not infringe upon the exclusive rights in the trademark. In the author’s opinion, the ratio decidendi is worth further discussion:

Why Johnson & Johnson’s Limitation on Resale Prices Constitute a Monopoly Agreement?

Posted on August 13, 2013 by yytbest

(By You Yunting) Yesterday, we posted on our blog an article titled, Why Did the Court Not Rule in Accordance With Article 14 of the Anti Monopoly Law in order to introduce the first legal issue in Johnson’s limitation on resale prices litigation. Today, we will continue our introduction regarding why the Shanghai court determined that Johnson’s limitation on resale prices constituted a monopoly agreement, as well as commentary on an extract from court’s decision.

In this post, the “appellant” and “plaintiff” both refer to the “Beijing Rui Bang Yong He Science and Trading Co., Ltd” while “appellee” and “defendant” refers to “Johnson & Johnson Medical Ltd”.

Foreign Enterprises’ Criminal Risk Prevention in China

Posted on August 12, 2013 by yytbest

(By Ding Jinkun) Recently, Glaxo SmithKline, UCB and many foreign pharmaceutical giants are being investigated for their involvement in economic crimes. The entire pharmaceutical industry is involved into this investigation, stated-owned pharmaceutical firms included. Thus, it can be seen that the Chinese medical market has developed some deformities. Among the resulting crimes, some specific acts include unlawfully raising the price of medicine and unreasonably requiring consumers, particular patients, to pay “perks” for the lawbreakers in the form of small fees.

Why Did the Court Not Rule in Accordance With Article 14 of the Anti Monopoly Law? Part II

Posted on August 8, 2013 by yytbest

(By You Yunting) August 1, 2013 was the fifth anniversary of the enactment of China’s Anti–Monopoly Law. On the same day, Shanghai Higher People’s Courts handed down the first decision that supported a plaintiff’s claim in an anti-monopoly civil ligation in China. The court determined that Johnson & Johnson Medical Co. Ltd action constituted as a vertical monopoly for restricting the minimum sales price, and the company was ordered to make civil compensation for the plaintiff’s loss.

Full Text of NDRC’s Public Announcement on Milk Powder Manufactures’ Vertical Monopoly of Price Control

Posted on August 7, 2013 by yytbest

(By You Yunting) According to the latest announcement on Chinese National Development and Reform Commission website, NDRC’s carried out anti-monopoly investigations into milk powder manufacturers and imposed fines. Based on this announcement, we found that there are different views between NDRC and Chinese courts on the understanding of Article 14 of the Anti Monopoly Law. With regard to the court’s understanding that milk powder formula in this case is effective competitive, the milk powder manufacturers shall not the determined as violating the the Anti Monopoly Law even if they conducted price control. Following is our translation for this public announcement.

Why Did the Court Not Rule in Accordance With Article 14 of the Anti Monopoly Law? Part I

Posted on August 7, 2013 by yytbest