Could Apple Get Trademark “iWatch” in the Mainland China?

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(By You Yunting) The author would first like to apologyze, that as mentioned in the previous post “Why Did Apple Filed the First “iWatch” Trademark In Jamaica?”:

“For the prospect of iWatch application in mainland China… the author would like to stop here, and I will resume the discussion over this issue in tomorrow’s post.”

Yet due to work obligations, the author broke his promise. For the make-up, the author took an early raise this morning to continue his analysis on the issue.  First, the author’s conclusion of the issue is: despite the obstacles of iWatch acquisition, it would not prevent Apple from gaining it.

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China Supreme Court: Which Courts Have Jurisdiction Over Design Patent Disputes?

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(By Albert Chen) Past essays on this websites have introduced the design patent dispute between Honda Motor Co., Ltd. (“Hongda”), Hebei Xin Kai Auto Manufacturing Co., Ltd. (“Hebei Xin Kai”) and Shuanghuan Auto Co., Ltd. In another dispute involving Hongda and Xin Kai, the Supreme People’s Court has rendered a decision on jurisdiction. This dispute deserves attention and will be introduced in today’s post.

Case summary:

In 2005, Hongda and Dongfeng Hongda Auto Manufacturing (Wuhan) Co., Ltd. (“Dong Feng”) filed a lawsuit in the Beijing Higher People’s Court (the “Beijing Higher Court”), claiming that Hebei Xin Kai, Gaobeidian Xin Kai Auto Manufacturing Co., Ltd. (“Gaobeidian Xin Kai”), and Beijing Xin Sheng Bai Li Auto Trading Co., Ltd. (“Beijing Xin Sheng”) infringed their design patent. The Beijing Higher Court accepted the case.

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Why Did Apple Filed the First “iWatch” Trademark In Jamaica?

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(By You Yunting) According to media reports, Apple Inc. (“Apple”) has filed for “iWatch” trademark in several countries and regions, including: Japan, Mexico, Russia and Taiwan. Searching the trademark database in mainland China and Taiwan, the author discovered that Apple filed its iWatch trademark in Taiwan in June 2013.As for the trademark application in mainland China, because it takes a longer period of time for trademark application to be recorded on China Trademark Office’s website, we could only check the information concerning applications made several months ago. Therefore, if Apple filed the application in early June, then we would have no way to confirm it right now. Furthermore, we have found no records regarding Apple’s iWatch trademark application in China. The following are information of Apple’s “iWatch” trademark application in Taiwan:

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China’s Latest Laws and Regulations: June 2013, Part I

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I. The State Administration of Taxation Issued a Notice Concerning Issues Related to Declaration of Tax Rebate (Exemption) for Exported Goods by Exporting Enterprises.

Recently, the State Administration of Taxation issued a Notice Concerning Issues Related to the Provision of Proceeds for Declaration of Tax Rebate (Exemption) of Exported Goods by Exporting Enterprises, which clarifies the policy for declaration of value-added tax rebate (exemption) of exported goods by exporting enterprises. The Notice will take into effect on August 1, 2013. At the same time, the State Administration of Taxation also announced the policy interpretation for the notice.

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Why Did the Supreme People’s Court Changed Its Attitude towards Revoking Trademarks When It Is Unused for 3 Years

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(By You Yunting) China is a heavily administrated and controlled country. If administrative approval is not obtained, business activity such as producing and selling of Alcoholic beverages, medicine, etc.,  could be ruled to be invalid by the court. According to the Trademark Law of China, once the trademark has not been used for three continuous years, it could be eliminated. There is a significant amount of people who uses their right to their trademark however, many people fail to obtain the proper administrative approval or violates administrative rules. This brings us to the issue of  whether or not such a trademark should be removed even though it has been used. For this kind of cases, we find an example in the 10 annual cases of 2011 promulgated by the Supreme People’s Court of China. In that case, the Supreme Court overturned its opinions expressed in the previous year, “Kangwang Trademark Dispute”, in which the court determined that despite a shortage of administrative approval, the using of the trademark is sufficient according to the Trademark Law. 

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Why Did the Court Verify the Validity of a Company’s Trademark Transfer 5 Years after Its Cancellation?

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(By You Yunting) The Luzhou Qian Nian Liquor Co., Ltd. (“Company L”) found that its competitor, the Shandong-based Zhu Ge Jia Liquor Co., Ltd. (“Company S”) acquired three trademarks from a company that had its registration for the marks cancelled five years prior to the trademark transfer. Following this, Company L filed a request to have the trademark revoked, because it had not been used for a continuous three-year period. However, the Trademark Office denied the application, and Company L requested a review of the decision, which was also rejected, leading Company L to ultimately file an administrative lawsuit. In the lawsuit, Company L was equally unsuccessful, and the court refused its demands in both the first and second instance. Following a series of rejections, Company L then appealed the case to the Supreme People’s Court (“Supreme Court”) for a rehearing. 

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How to Judge the Validity of Trademark Transfer without Inner Approval of the Company in China

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Abstract:

(By Albert Chen) When a company’s trademark agent transfers a trademark without approval, a judgment of the validity of said transfer requires not only a consideration of the presence (or lack of) company approval, but also a determination of whether there was good faith when considering the third party in the transfer. When it can be shown that no inner-company approval was made, and that the transaction was not undertaken in good faith, such a transfer will invariably be considered invalid.

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Introduction to A Case on Whether OEM Would Constitute Infringement in China

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Abstract:

(By Luo Yanjie) For the infringement caused by OEM in China, different courts hold different opinions in China, and in this essay you could see a case describe the infringement determination. The determination of trademark infringement should be subjected to whether or not potential consumers would be confused when making their decision to purchase the product. If the potential consumer is not confused by the product, then it should not be considered as an infringement.

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Despite the Record-Making CNY 1, 000, 000 Compensation for Yao Ming, Infringer Did Not Lose the Lawsuit

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Among the Ten IPR Cases issued by the Supreme People’s Court in 2012, one of the more interesting ones involves a case of portrait infringement involving international basketball star Yao Ming’s likeness. Despite the court’s understanding that infringement had been found for the unlicensed use of Yao’s portrait and name, granting compensation as high as RMB 1 million Yuan, such an amount is far less than Yao’s typical payment for participating in ads and other marketing materials. For this reason, the court’s decision to grant such an amount is simply inadequate to prevent further acts of infringement involving a well-known person’s name and likeness.

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Why China Supreme Court Agree with Resigned Employees Establishing Competing Businesses?

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(By Luo Yanjie) Abstract: The experience an employee gains throughout the course of his employment is regarded as a personal right under the law, and even though an employer may spend a great deal of time and money cultivating the employee and improving their skill set, if there was no noncompete agreement entered into prior to this, the employer will usually not be able to impede or stop a resigned employee from starting another business to compete with his or her previous employer.

For most companies, talent is considered its most valuable asset. With the development of the economy, market competition grows ever more fierce, and many employers find themselves troubled at the prospect of a number of employees “job hopping” to competitors, bringing the benefit of the employers’ training, experience and expertise with them. The case introduced herein is a typical case in which the employee was not bound by a noncompete, nondisclosure, or similar agreement. Facing stiff competition, many employers file suit on the basis of unfair competition, and yet, due to lacking substantial evidence, many employers end up failing in bringing a successful case.

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China Supreme Court’s Opinions on the Standard to Judge Noted Product Decoration？

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Abstract

(By Albert Chen) Despite trademark is the important mark to indicate the origin of the product in its circulation, to decide whether the package of a noted product could constitute the special decoration, the trademark is not the absolute cause for the consideration. The reputation of the product shall be judged from the sales time, area, amount and object, and on the other hand, the fundamental condition for to decide the special decoration is whether it is distinctive.

Case Introduction

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Using Counterfeit Software to Manufacture Hardware May Constitute Copyright Infringement by the User

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Abstract:

(By Luo Yanjie) Using another party’s copyrighted software,  and combining that technology with specific hardware product to produce a similar product may constitute copyright infringement. When determining whether such action constitute as a crime, the penalty may be calculated by the total value  of the hardware and software products,

When employees of high-tech companies leaves their employment, they may cause their former employer huge financial losses if they illegally uses the technology or software they obtained from their former employer. Therefore, companies generally take preventive measures with its employees by methods such as a duty not to compete or a non-disclosure agreement. For serious offenses, companies could consider filing criminal charges. In this post, you would see one such typical case.

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

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Abstract

(By Albert Chen) Hainan Netcom is an Internet Service Provider (“ISP”), but it also provides the content on the Internet. For the URL available on its web pages, the company should be obligated to take an even higher care with regards to its content. Even after the company fails to demonstrate that the IP address is used by a third party, and it has fulfilled its obligation to check the content of the webpage, the company should still be liable for any corresponding infringement.

Case Summary:

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Can Employees’ Nondisclosure Warranty Letter Be A Confidential Measure in China?

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Abstract

(By Albert Chen) According to the Anti Unfair Competition Law, one of the conditions required for something to constitute a trade secret is whether sufficient measures have been taken for such information to remain confidential. In practice, apart from an NDA (Non Disclosure Agreement), other confidential articles that explicitly indicate the inclusion of remuneration for confidentiality in an employee’s pay, as well as written warranties issued by an employee can both be considered confidential measures in law sufficient to properly maintain a trade secret.

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How to Infer the Trade Secret Disclosure by Original Staffs in China?

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Abstract

(By Albert Chen) How to demonstrate one’s original employee has presented the trade secret gained during his/her service to the new employer, who thereafter makes benefit of it? As no direct evidences are available, in the current judicial practices, the principle of “similarity, contactable and excluding lawful origin” has been adopted for the case judging.

Case Summary:

Zhao once had her employment with Jiashan Shengguang Electronics Co., Ltd. (the “Company S”) from February 20th 2002 to March 19th 2006, and was in charge of the sales of the company. During her service there, Zhao, as the representative of Company S, concluded several transactions on vehicles lighting with Mexican DDB Company.

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