Why Couldn’t the Trademark “Bond” Be Applied to Contraceptives?

Posted on July 17, 2013 by You Yunting

(By Albert Chen) The Beijing High People’s Court (the “Beijing High Court”) established the “merchandising right” in a 2011 judgment on an administrative dispute between the Trademark Adjudication and Review Board (the “Board”) and DANJAQ, LLC (the “DANJAQ”). That was the first judicial definition of the right, and the first time it was included as a protected “prior right.”

In today’s post, we would like to describe the facts in the case, and introduce to our readers the opinions of Beijing High Court and our comments on the matter.

Why Hainan Netcom Is Judged Infringement Liability for IP Addresses It Manages?

Posted on July 17, 2013 by You Yunting

(By Albert Chen) Hainan Netcom is an Internet Service Provider (“ISP”), but it also provides the content on the Internet. Even after the company failed todemonstrate that the IP address is used by a third party, and it fulfilled its obligation to check the content of the webpage, the company should still be liable for any corresponding infringement.

Case Summary:

Beijing Ciwen Filming Co., Ltd. (“Company C”) is the copyright holder of film Qi Jian (also known as “Seven Sword”) in mainland China. However, Company C discovered that Hainan Netcom hadbeen providing a link on its homepage (www.hai169.com) for its visitors to stream Qi Jian, without the authorization of Company C.As a result,in September of 2005, Company C filed a lawsuit against Hainan Netcom because it believed that Hainan Netcom had infringed upon its copyright.

Is the Territorial Scope of a Famous Brand Limited to Chinese Territories?

Posted on July 16, 2013 by You Yunting

(By Luo Yanjie) Abstract: The determination of a product reputation is usually limited to Chinese territories, while on the other hand the reputation of a mark may involve consideration of overseas reputation.

Freeriding among Chinese manufacturers is unfortunately a very common and severe issue, and for most well known foreign companies, there may be situations in which they have not paid adequate attention to the Chinese market, and ergo have provided insufficient attention to policing its marks within the realm of IPR protection. As a result, the vast majority of foreign brands are helpless in facing rampant infringement.

Does 360’ s QQ Guard Constitute Unfair Competition against Tencent? Part II

Posted on July 16, 2013 by You Yunting

(By Luo Yanjie) Today, we would give our opinions on 360’s unfair competition ruling

Lawyer’s Comments:

The case is a part of the “3Q battle”, and has garnered wide attention in the society. From a legal standpoint, this case is not difficult.The ruling against 360 was proper for the following reasons:

1. The promotion of ads and charges are of the lawful items

It shall first be pointed out that despite the annoying functions in QQ, like the pop-up ads or value added service, these functions are of the legal profit model of Tencent. As known to all, QQ is a free software (despite the various charging items, the basic function of the software, namely the messaging is free). For Tencent has invested many resources in hardware and management cost, and should naturally be repaid through the ads or value added service. If other companies prevent the lawful advertising of Tencent, thereby reducing the chances of lawful transactionsfor Tencent and its clients, it would be of unfair competition.

Why China Court Protects Violation Against GPL License Agreement?

Posted on July 15, 2013 by yytbest

(By You Yunting) We could find no regulation in China’s Copyright Law and Regulation on the Protection of Computer Software with regard to the open source software. In a dispute judged by Haidian People’s Court in the 1^st instance and Beijing No.1 Intermediate People’s Court in the 2^nd instance, though both courts determined the validity of the open source agreement, they supported those violating the GNU GPL as failed in disclosing newly added source code could claim the copyright over the new work. To our understanding, the case, on the one hand, had showed the pragmatism of China courts, and on the other hand, it also demonstrated that the open source software organization is necessarily to be seen in the right protection on the OSS software.

Does 360’ s QQ Guard Constitute Unfair Competition against Tencent? Part I

Posted on July 15, 2013 by You Yunting

(By Luo Yanjie) Abstract: Although online ads or pop-up ads may make you feel uncomfortable, that is a profit model utilized by free software like Tencent’s QQ, the popular online messaging software. But, when the 360 Guard software removed QQ’s ads, it would no doubt damage Tencent’s legal rights. We’d like to introduce this case to our readers, beginning with today’s post and extending into tomorrow’s.

In 2010, Tencent introduced its “QQ Computer Keeper” to the market, which focuses on defending against attacks on Tencent. Before that, the Qihu 360 Company publicized its product 360 Guard. 360’s software could remove QQ’s ads, remove supplemental and additional functions found within QQ’s software, and prevent computer viruses from stealing QQ account information. Within the first 72 hours after the introduction of 360 Guard, it was downloaded more than 20 million times. Tencent believed that 360’s Guard software constituted unfair competition, and was possibly even stealing end user’s personal information. For this reason, Tencent announced that all computers with 360’s software installed would no longer be able to use QQ’s software.

Shanghai Court Promulgated New Rules on Service Invention Remuneration and Reward

Posted on July 12, 2013 by yytbest

(By Albert Chen) Recently, the Shanghai Higher People’s Court (the “Higher Court”) issued the Guidelines on the Trial of Employment Remuneration and Reward for the Inventor and Designer (the “Guidelines”), which has further provided the issues involving the standard of the remuneration and reward as well as their payment. In today’s post, the author would like to interpret the new regulations in the Guidelines.

I. The standard of the service invention remuneration

According to the Guidelines, the remuneration for the service invention shall not be less than RMB 3,000 and not less than RMB 1,000 for design patent and utility model.

Is It Illegal For Directors in Company to Squat Trademarks in China?

Posted on July 12, 2013 by You Yunting

(By Luo Yanjie) As regulated in Article 15 of the Trademark Law:

“Where any agent or representative registers, in its or his own name, the trademark of a person for whom it or he acts as the agent or representative without authorization there from, and the latter raises opposition, the trademark shall be rejected for registration and prohibited from use.”

But in judicial practice, the agent or representative has a very vague definition of “authorized” . Our website once analysed the issues concerned in the post “Whether Sales Agents Are Included in the Trademark Agent Squatting Articles of China Trademark Law”. In today’s post, we would like to introduce the opinions of the court from a different aspect. The details are as follows:

In Selling Train Ticket Insurance, Why Did JD.com Deliberately Break the Unfair Competition Law?

Posted on July 11, 2013 by yytbest

Abstract:

(By You Yunting) The greed of JD.com and Ctrip.com (NASDAQ: CTRP) has been fully revealed, for they have added insurance fees as a compulsory sale with its train ticket offerings. In reality, all JD and Ctrip want to do is become engaged in the huge amount of train ticket transactions that take place every year in China, yet not be restricted by the statutorily imposed agency fee of up to RMB five Yuan. Clearly, it is plain to see that these two parties have sold insurance tacked onto ticket agency train tickets as a means of gaining even more profit. However, such a strategy could be considered entirely invalid, and in addition likely in violation of the Unfair Competition Law due to its chasing of illegal profits through such sales.

Analysis on the Anti-monopoly Dispute Filed by Qihoo against Tencent, III

Posted on July 11, 2013 by You Yunting

(By Luo Yanjie) In our previous two posts, we introduced the reader to the facts involved in the monopoly dispute between Qihoo and Tencent, as well as the Court’s decision. Today, we continue that discussion of the case and would like to share our opinions on it.

Lawyer’s comments and analysis

It is not difficult to find from the above judgement that Qihoo lost the lawsuit mainly because the court in the first instance denied its allegation that Tencent held a dominant position in the market; ithe court’s decision was primarily based on a broad definition of “relevant market” in regard to Tencent’s QQ instant messaging software. The following is our analysis on the issue:

Does a Previously Registered Noted Trademark Influence Subsequently Registered Similar Trademarks?

Posted on July 10, 2013 by yytbest

Abstract

(By Luo Yanjie) In determining the similarity of two trademarks, one must take into account the common understanding among the public as to the trademark and the goods it presents (as well as the source), and the public’s comprehension of the words, pictures, designs, or a combination of all of the above. Concurrently, however, the reputation of the trademark must be taken into consideration in order to determine whether the above factors would lead to confusion as to source among the relevant consumers and market. Generally, trademarks are judged by their similarity with the appearance of another trademark; however, in the following described case, the second instance court also considered the reputation of the reference trademark and the understanding of the consumer in relation to a more comprehensive protection of a well-known brand. The significance of the case is primarily that, due to the millions of trademark applications made in China each year, even subsequently registered trademarks that are incredibly similar to those previously registered may be approved for commercial use by the China Trademark Office, due to strained and restricted resources on its part. In any case, the trademark involved in this case is a well-known one, and for this reason, the court decided that the subsequently registered mark would not be approved for use.

Analysis on the Anti-monopoly Dispute Filed by Qihoo against Tencent, II

Posted on July 10, 2013 by You Yunting

Today we will continue our introduction of the opinions of the Guangdong High People’s Court, the first instance court in the anti-monopoly dispute, concerning the facts in the case as well as its judgment.

II. About the dominant position of the defendant in the relevant market

As held by the court in the first instance, the plaintiff had a much narrower definition of the relevant product market and regional market, and its calculation for the market share was thus not accurate.Especially taking into account that the product scope shown was the plaintiff’s most important evidence; more importantly, that the report from the Ai Rui research institution presented data contrasting with the scope determined by the court.

Litigation in China: A Long and Rocky Road

Posted on July 9, 2013 by yytbest

(By Dr. Wenbao Qiao) For foreign companies doing business in China, disputes and litigation may sometimes be inevitable. Once a dispute cannot be resolved out of court, there is a long and rocky road to the final success, with several important points to be considered for the planning and handling of litigation in China:

Documents and Evidence

The first step of each procedure is to collect and prepare all necessary documents and evidence. According to Chinese law, documents and evidence from another country (such as excerpts from the commercial register or powers of attorney) have to first be notarized in their country of origin and then certified by the Chinese Embassy or Consulate in the respective country. Only notarized and certified documents and evidence will be accepted by Chinese courts. While preparing the documents and evidence, attention should be paid to the timeline required for notarization and certification. There are several important statutory deadlines shown below. Failure to meet these deadlines can lead to the loss of a case. Notarization and certification in Germany usually takes two to three weeks, which in turn may play a critical role for the scheduling of time in preparation for trial.

Analysis of the the Anti-monopoly Case Filed by 360 Against Tencent, I

Posted on July 9, 2013 by You Yunting

(By Luo Yanjie) Starting today, we will have three posts introducing the decision in China’s most closely followed anti-monopoly case. Today’s post will first introduce the facts of the case. Qihoo 360 Technology Co. Ltd. (NYSE: QIHU) (“Qihoo”) is a company whose primary business is security software. In October of 2010, Qihoo released software named “360 Privacy Protector,” which was claimed to prevent QQ, the instant messenger of Tencent Holdings Limited (SEHK: 700) (“Tencent”), from uploading the user’s personal information. Tencent issued a notice to its users, demanding that users who installed QQ not install any of Qihoo’s software. At the same time it took technical steps to check the computers for any Qihoo’s software. If any Qihoo software was found, the user was not allowed to sign in to QQ. This led to a large dispute on the Internet in China. After the Ministry of Industry and Information Technology (the “MIIT”) intervened, Qihoo recalled its 360 Privacy Protector, and Tencent revoked its regulation prohibiting QQ users from using Qihoo.

China’s Latest Laws and Regulations in June 2013, II

Posted on July 8, 2013 by yytbest

V. The State Council Has Issued Amended Regulations on the Administration of Foreign-Funded Insurance Companies.

On June 8, 2013, the State Council issued amended Regulations on the Administration of Foreign-Funded Insurance Companies (Order No. 336), which will take effect on August 1, 2013. The amendments are comprised of two paragraphs. The first paragraph of Article 7 has been revised to “the minimum amount of registered capital of a joint venture and wholly foreign invested insurance company is RMB twenty million or convertible currency in equivalent.” The second paragraph of Article 7 has been revised to read, “a foreign-funded insurance company shall allot no less than RMB twenty million of working capital to its branch.” The regulation of “contribution of a foreign-funded insurance company shall be convertible currency” is deleted.

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