(By You Yunting) This March, at the invitation of the U.S. government, Mr. You Yunting, the founder of Bridge IP Commentary began his journey to the United States. The main purpose of this visit was to better understand the system of intellectual property rights in the United States. Mr. You would like to share with our readers his experiences there in several posts here on our website. Of course, the content of the posts may not be truly comprehensive or strictly accurate; that being said, if you find any mistakes or comments that can be corrected or improved upon, please let us know. We encourage more dialogue with the IPR community and welcome all constructive commentary. The following is the first post in a series of Mr. You’s visit to the United States:
Analysis over the Patented Design Dispute between FIAT and GWM in China
You may click here for the simplified version of this post, if you feel the current one is too long to read.
Case summary:
On June 30, 2003, the Plaintiff FIAT AUTO S.P.A (“FIAT”) applied for a design patent named “automobile” with the State Intellectual Property Organization (the “SIPO”). That application was approved on May 19, 2004 with patent number ZL03353217.6 (the “Patent”).
In November 2006 and April 2007, Great Wall Motor Company Limited (GWM) exhibited its vehicle, the “GreatWall Jingling” in the Beijing Auto Show and Shanghai Auto Show. FIAT alleged that the vehicle exhibited by GWM infringed upon its patented design, and subsequently filed a lawsuit in the Shijiazhuang Intermediate People’s Court, demanding an apology and compensation.
How to Determine the Recognition Level of Products in Unfair Competition Disputes in China, II
Comments on the unfair competition case between Ferrero and Jinsha
Today, we will share our opinions on the following issues related to the case introduced in yesterday’s post: the scope of name recognition, whether a product’s packaging can refer to the products of others, and protection over product packaging through the use of trademarks.
Lawyer comments:
The interpretations of the judges in the first and second instance courts and the review court help us better understand the following issues involved in unfair competition cases:
How to Determine the Recognition Level of Products in Unfair Competition Disputes in China, I
Comments on the unfair competition case between Ferrero and Jinsha
Today and tomorrow, we will analyze several issues raised by the Ferrero and Jinsha unfair competition
case. Namely: the scope of name recognition, whether a product’s packaging can refer to the products of others, and protection over product packaging through trademark protection. Today, we will briefly introduce the case facts and the opinions held by the deciding courts.
Case summary:
Ferrero Company registered the trademark “FERRERO ROCHER” in China in 1986 and its FERRERO ROCHER chocolate (“Ferrero Chocolate”) entered the Chinese market in 1988. The Ferrero Chocolate packaging has the following features: 1) gold, ball-shaped foil wrapping; 2) the “FERRERO ROCHER” trademark printed as a decoration within an oval on the gold foil; 3) each chocolate wrapped in gold foil is padded with additional brown paper; 4) outer packaging is made of transparent plastic, so that the inner gold-wrapped balls can be seen from the outside; and 5) a red ribbon-like decoration printed on the trademark of the chocolate.
Introduction and Legal Analysis on the Patent Design Dispute between the Honda CRV And Shuanghuan Auto
(By Luo Yanjie) The patented design dispute between Shuanghuan Auto and Honda Motor Co., Ltd. (the “Honda”) has been a subject of strong focus within the industry. With the review of the case in the Supreme People’s Court, it determined the patented design right enjoyed by Honda and overthrew the annulled sentences in the first and second instance, The case has been battled through the courts for eight years, and now returns to its starting point. This post will discuss the arguments adopted in a review of the sentence, and why it shall be different from those in the first and second instance.
Why China Withdrew its Reservation to Article 11 of the UN CISG
(By Luo Yanjie) Recently, the Chinese government sent an official notice to the General Secretary of the UN to withdraw its statement made to the United Nations Convention on Contracts for the International Sales of Goods (the “Convention”) that “China would not be bound by Article 11 and the relevant regulations of Article 11.” (As provided in Article 11 of the Convention, “A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses.”) Presently, the withdrawal has already come into effect. Therefore, the articles in the Convention and the Contract Law of China have become more integrated. Today, we are going to share with our readers our opinions on this issue.
The Development of China Court’s Judgment over Criminal Offence of Online Game Cheating Programs, III
Today, our website will introduce the most recent crime adopted by courts in some regions of China to combat online game cheating programs: the crime of damaging computer information systems.
III. The crime of damaging computer information systems
Although there problems with all of the crimes previously discussed for combating cheating programs, with the strengthening of legislation, the online game industry finally found a suitable crime in 2011. According to Article 286 of the Criminal Law:
“Those who violate the law by deleting, modifying, adding, or interfering with the function of computer information systems so that information systems are unable to run normally, which leads to severe consequences, may be sentenced to imprisonment of no more than five years of detention; when the consequences are especially severe, the violator may be sentenced to imprisonment of more than five years. Those who violate the law by deleting, modifying, or adding data or applicable procedures to the storage, processing, or transmission programs in computer information systems, which leads to severe consequences, may be punished as per the preceding paragraph.”
The Development of China Court’s Judgment over Criminal Offence of Online Game Cheating Programs, II
Today, we will introduce the second crime adopted in China to combat cheating programs in online games: criminal copyright infringement.
II. The state of criminal copyright infringement
After years of combating cheating programs using the crime of illegal operation, the judicial organs in some regions tried to use criminal copyright infringement from Article 217 of the Criminal Law to combat cheating programs. The subjective aspect of criminal copyright infringement requires the unlicensed copying and distribution of the copyrighted work of another for profit.
The Development of China Court’s Judgment over Criminal Offence of Online Game Cheating Programs, I
(By You Yunting) Since Shanda imported the massively popular online game, MIR, from South Korea in 2001, the online game industry has gradually become one of the most profitable businesses in China, and has made a fortune for tycoons such as Chen Tianqiao and Ding Lei. On the other hand, all kinds of illicit activities have arisen with the development of the online game business, among which cheating programs to assist players is the most troublesome for the game companies.
According to information acquired by the writer while working in a game company, cheating programs are software that run with the game software, thus giving them their name as game cheating programs. Cheating programs have several harms. First, they incur Gresham’s Law (bad money chases out good money), which makes rules-obeying players easily defeated and thereby damages the fairness of the game. Second they put more burden on the server and force the operator to purchase more servers and the bandwidth, which undoubtedly increases costs and decreases the stability of the server. Third, they enable players to fulfill game objective more quickly, which abnormally speeds up the progress of the game and could force the game company invest more human resources into developing new game content or elements. Although it is possible that some cheating programs are used to make up for the defects in the game, most have harmed the gaming experience, added costs of the company’s development and operation, and could jeopardize stable running of the game.
Analysis of the Assumption of Liability for E-Merchants in IPR Disputes in China, II
—Interpretations on Solutions to Several Issues in Hearing E-Commerce IPR Infringement Cases
In today’s post we will continue to discuss the standards to be considered in determining the liability of e-merchant platforms.
III. Standards in Determining the Indirect Infringement Liability of E-Merchant Platforms
As discussed above, an e-merchant platform may only assume indirect infringement liability under the law, and therefore it would not be necessarily always be liable for infringement occurring on its platform. The pressing question then, is what standards shall be utilized when determining their liability? In response to this question, we would like to share our analysis based on a comparison of similar statutes:
Analysis of the Assumption of Liability for E-Merchants in IPR Disputes in China, I
—Interpretations on Solutions to Several Issues in Hearing E-Commerce IP Infringement Cases
(By Luo Yanjie) In recent years, E-Commerce in China has thrived along with the development of online shopping. According to some news reports, the volume of the transactions from 360buy.com totaled more than RMB sixty billion Yuan, and Suning’s online sales achieved a comparatively paltry RMB 18.336 billion Yuan. With respect to Taobao.com and its affiliated websites, their business gains have vastly superseded all other rivals. By November 2012, Taobao.com and Tmall had sales of over RMB 1000 billion Yuan, which is almost three times that of Bailian Group, Suning and Gome’ s annual income in 2011 combined. The aforesaid three companies are currently the top three retail chains in China.
Conditions for Dormant Investment Compliance in China
(By Lear Gong) Regulation No.3 on Several Issues Concerning the Application of the Company Law issued by the Supreme People’s Court (“Corporation Interpretation III”), which was promulgated and came into effect on January 27, 2011, contains specific regulation on application of law with respect to dormant investment. Regulation No.1 on Several Issues Concerning the Hearing of Disputes Involving Foreign Invested Companies by Supreme People’s Court (“Foreign Investment Interpretation I”) also contains detailed regulation on dormant investment in companies.
China’s Latest Laws and Regulations in February 2013
I. The China Securities Regulatory Commission Issued the Business Rules for the Small and Medium Sized Enterprise Share Transfer System and their Detailed Rules.
In January 2013, the National SME Share Transfer System Co., Ltd. (“NSSTS Co.”) was officially established. On February 2, 2013, the China Security Regulation Commission (“CSRC”) issued the Interim Measures for the Administration of the SME Share Transfer System Co., Ltd. (“Interim Measures”). Accordingly, these regulations have defined the legal status of the National SME Share Transfer System (“NSSTS”), the NSSTS Co., and companies with stock listed on the NSSTS, as well as the responsibilities of NSSTS Co. Additionally, the aim of the Interim Measures is to establish the basic administrative framework of the NSSTS to highlight the self-regulatory nature of the NSSTS Co. Furthermore, the Interim Measures mandate the CSRC to implement uniform supervision and administration.
China’s Most Recent Revision of Regulations Concerning Computers and Intellectual Property Rights
(By Albert Chen) In January 2013, China’s State Council revised several administrative regulations regarding computers and intellectual property rights, specifically the Computer Software Protection Regulations, the Regulation on Protection of the Right to Network Dissemination of Information, the Implementing Regulations of the Copyright Law, and the Regulation on the Protection of New Varieties of Plants. These revisions mainly focus on the punishments for violation of regulations, and they came into effect on March 1, 2013.
China’s New Civil Procedure Law behind the Application for an Injunction of Guangzhou Pharmaceutical Company
(By Albert Chen) Guangzhou Pharmaceutical Company’s lawsuit (GPC) against Jia Duo Bao (JDB) for false advertising was heard in January of this year at the Guangzhou Intermediate People’s Court. In addition to the arguments held by each party regarding the false advertising, they also disputed whether an injunction could be issued as applied to GPC. Ultimately, the Guangzhou Intermediate People’s Court approved the injunction, basing its decision on findings that JDB had exploited GPC through false advertising, thereby confusing and misleading consumers. The Court then prohibited JDB from making advertisements with claims that GPC’s vitamin drink “Wang Lao Ji” had changed its name to JDB, or any other similar slogans indicating that somehow GPC’s Wang Lao Ji product was the same as JDB’s as the result of a name change.