Bridge IP Law Commentary - Page 35 of 65 - Your Guide to China IP Law！

Is it Infringing LV’s Trademark Right when Registering Similar Images as Patented Design?

Posted on February 15, 2013 by yytbest

(By Albert Chen) Brief of the case:The Louis Vuitton Company (the “LV Company”) holds the rights to the “LV” trademark in Mainland China, and it registered the trademark “LV” as early as January 15, 1986. At present, the term of protection of the mark has been extended to January 14, 2016. The registered classes for the “LV” trademark include toys, Chinese checkers, Backgammon, golf gloves, etc. On November 13, 2003, Guo filed an application for a patented design called “Mahjong (23)”, and the application was approved and published on July 14, 2004. The published patent includes 5 pictures, which contain the front view, left view, back view, top view and three-dimensional views. Among them, the front view contains an image consisting of the letters “L” and “V.”

Analysis on Trademark Infringement Case of Adidas

Posted on February 14, 2013 by yytbest

(By Luo Yanjie) In 2001, the globally known sportswear brand Adidas acquired a trademark certificate issued by the Trademark Office of the State Administration of Industry and Commerce (“SAIC”), namely a certificate numbered 1489454 for the “three slants” trademark, which was approved in Class 25 for clothing, ball shoes, hats, socks and other similar products; in addition, the certificate numbered 1536558 for the “three slants” trademark was approved in Class 18, which covers bags, clothing case, traveling bags and belts. On June 21 2003, Adidas transferred the trademarks to its affiliates.

Administrative Warning Issued to 360.cn by Beijing Administration of Industry and Commerce

Posted on February 13, 2013 by yytbest

(By You Yunting) Recently, the Beijing Municipal Administration of Industry and Commerce (“Administration”) published on its official Weibo that the Beijing Administration and Xicheng Administration of Industry and Commerce made an appointment with the chief of Beijing’s Qihoo Co. (“Qihoo”), and issued an administrative warning against company conduct, claiming violations of unfair competition laws and regulations related to its “360 Safeguard” for use in computer internet browsers.

China Revised Its Law on Jurisdiction of Internet Infringement Involving Foreign Elements

Posted on February 12, 2013 by yytbest

(By Albert Chen) On the issue of jurisdiction in online infringement cases, Article 1 of the Supreme People’s Court’s Interpretation on Several Issues Concerning Application of Law in Hearing Network Copyright Disputes Involving Computers (the “Network Dispute Interpretation”) previously stated that:

“Online copyright infringement dispute cases are within the jurisdiction of the court in the place where infringement occurred or the residence of the defendant. The place where infringement occurred includes the place where the network server or computer terminal used to conduct the accused infringement is located. For situations where it is difficult to determine the place where the infringement occurred or the residence of the defendant, the place where the computer terminal or other device that the plaintiff used to discover the infringement is located may be used as the place where the infringement occurred.”

The Court Ultimately Supported Guangzhou Pharmaceutical Holding Company’s Application for an Injunction

Posted on February 11, 2013 by yytbest

(BY Albert Chen ) Guangzhou Pharmaceutical Holding Company (“GPHC”) is the holder of the王老吉 (the “Wang Lao Ji”) trademark in mainland China. In 2000, it licensed Hongdao Group, a Hong Kong admitted company, to use the trademark. After Hongdao Group used the trademark and caused it to develop a definite business reputation, however, a dispute broke out between the two parties over the right to use the Wang Lao Ji trademark.

In the first round of the fighting between the parties, GPHC used arbitration with CIETAC to cancel the supplementary agreements signed between two parties in 2002 and 2003 based upon the fact that the agreements were executed under commercial bribery. This website has discussed the implementation problems arising in that case. After that, the subsidiary of Hongdao Group that had sold Wang Lao Ji, Jia Duo Bao (“JDB”) began to sell its herbal tea under the brand name 加多宝(the “JDB”) Additionally, JDB used disputed slogans, such as “Wang Lao Ji now calls itself JDB,” “China’s top selling red can herbal tea now call itself JDB.” Claiming that such slogans constituted false advertising or unfair competition GPHC filed for an injunction with the Guangzhou Intermediate People’s Court and demanded an immediate halt to such advertisements.

Why Pfizer Did Not Win the Blue Pill Trademark Infringement Case?

Posted on February 9, 2013 by yytbest

(By Luo Yanjie) Pfizer is the holder of a blue, diamond-shaped mark (the “Pfizer trademark,” number: 3110761). The trademark was approved in Class 5 for pharmaceutical preparation, medicines made for human consumption, antibiotics, medical nutrition supplements, cleaning agents, and veterinary preparation. The registration period for the trademark commenced on May 28, 2003 and will expire on May 27^, 2013.

On July 21, 2005, Pfizer representatives purchased a box of medicine priced at RMB 50 yuan from the New Concept Company. The medicine was mainly intended to cure “erectile dysfunction.” The front and back cover of the package contained both “Viagra”[1] and “TM,” which was underlined and accompanied by the diamond image. The manufacturer was printed as “Jiangsu Lian Huan Pharmaceutical Co., Ltd” (“Lian Huan”) dated on April 14, 2005. The opaque inner packaging also contained the words “Viagra” and “TM,” as well as the manufacturer “Lian Huan.” The packaging of the medicine was also diamond-shaped, in accordance with the shape of the tablet. The medicine itself was light blue in color, diamond compass shaped, and contained the words “Viagra” and “TM.” Pfizer believes that these products constituted three-dimensional trademark infringement and thereby sued the manufacturer and seller.

Introduction to the Resolution to the “Two Boards” Issue in China Listed Companies

Posted on February 7, 2013 by yytbest

(By Yu Zhiyuan) Recently, the author was interviewed by the media on the issue of the “two boards” of Jiulongshan, a Chinese listed company. The author would like to analyze the basic legal principles concerned in the “board battle” in this particular case.

I. The ummary of the Issue

Shanghai Jiulongshan Travelling Co. Inc. (hereinafter “Jiulongshan”) is a listed company, and recently, its original biggest shareholder (represented by Mr. Li Qin Fu, chief of the company board) transferred approximately 29.9% of the company’s share options to HNA Property (hereinafter “HNA”). As a result of that transaction, HNA became the biggest shareholder and company registration with the Ministry of Industry and Commerce was amended to reflect those changes. However, HNA has not completed its payments in consideration of the stock transfer. On 21st December 2012, HNA called an impromptu shareholders’ meeting as the company’s biggest shareholder. At the meeting, it passed on the suggestion to recall Mr. Li Qin Fu to act as head of the board of the company, and thereafter voted in new board members. Beijing Kang Da Law Firm filed a brief to affirm the legal effectiveness of the decision and the voting. In reply to Kang Da’s brief, Jiulongshan held its own board meeting on 25th December 2012, at which most board members claimed that HNA lacked the ability to hold its own impromptu shareholders’ meeting. In addition, the board made an announcement, supported by the legal opinions of Shanghai-based Yan Yi Ming Law Firm, that any decisions made by the temporary shareholders at their previous meeting on 21st December 2012 were invalid.

China’s Latest Laws and Regulations in January 2013 (II)

Posted on February 6, 2013 by yytbest

VI. Thirteen Departments Jointly Issued Opinions on the Protection of the Rights and Interests of the Inventors of Service Inventions.

On January 1, 2013, thirteen departments, including the State Intellectual Property Office, the Ministry of Education, and the Ministry of Science and Technology jointly published the Several Opinions on Further Improving the Protection of the Rights and Interests of Inventors of Service Inventions to Promote the Implementation of Intellectual Property (the “Opinions”). The Opinions aim to protect the legal rights and interests of the inventors of the service inventions, particularly in state-owned enterprises, public institutions, and army units.

China’s Latest Laws and Regulations in January 2013 (I)

Posted on February 5, 2013 by yytbest

I. The Standing Committee of the National People’s Congress Adopted the Decision on Amending the Labor Contact Law.

On December 28, 2013, the Standing Committee of the National People’s Congress adopted and issued the Decision on Amending the Labor Contact Law of the People’s Republic of China, which will take effect on July 1, 2013. Four articles were revised, all relating to labor dispatch. The changes include an increase in the minimum registered capital of labor dispatching companies and administrative licensing to initially engage in the labor dispatch business; emphasizing the dispatched worker’s right of “equal pay for equal work;” declaring labor dispatch is a supplementary arrangement of employment and limiting the usage of labor dispatch; and imposing more serious liabilities on labor dispatching companies and the companies receiving the dispatched workers.

Who Has the Burden of Proving “Profit After Tax” When Calculating Remuneration for a Patented Invention?

Posted on February 4, 2013 by yytbest

(By Albert Chen) In the previous post, the author introduced how to determine the unit granted the patent right by looking at a case decided by a Shanghai court. Today, the author will use a case from a Guangdong court to introduce how the court there held on who must prove “the profit after tax” when a dispute breaks out on invention remuneration payable by the unit granted the patent right.

Summary of the case:

The employee inventor, Mr. Zhu, worked for Dongguan Wei Ba Cleaning Equipment Co., Ltd (the “Wei Ba Company”) from 1998 to 2006. During his employment, Mr. Zhu participated in the development of sixteen patents and was also registered as a joint inventor in the company’s patent applications. Afterwards, the Wei Ba Company exercised some of the patents but did not pay Mr. Zhu any remuneration. For this reason, Mr. Zhu filed a lawsuit against the Wei Ba Company, claiming that remuneration payable for his invention should be calculated based on the 2004 Annual Joint Inspection Report that the Wei Ba Company submitted to the Ministry of Commerce, which indicated the company’s total profit after tax. Moreover, Mr. Zhu claimed that the remuneration shall be calculated for the past two years.

Shall Parent Company Make the Payment for Subsidiary Employees’ Invention for Hire?

Posted on February 1, 2013 by yytbest

(By Albert Chen) In past essays, the author has introduced the legal issues related to the establishment of remuneration for inventions developed under work for hire schemes, and payment of said remuneration. Through a study of two recent cases, the author has found that the comments made by the judge in them is of reference value when deciding the “unit granted the patent right” and the “one liable to prove after tax profits”. In the meantime, the author would like to share his interpretation and analysis in these two posts.

Analysis on Proof Requirements in Figurative Trademark Infringing Others’ Copyright Cases by China Court

Posted on January 31, 2013 by yytbest

— A trademark certificate cannot be taken as evidence of copyright ownership

(By Luo Yanjie) On June 27th 2002, Hua Yuan Company (hereinafter “Hua Yuan”) filed an application to revoke the disputed trademark “老人城LAORENCHENG” (hereinafter Lao Ren Cheng) pursuant to on Article 31 of the Trademark Law, with the claim that the trademark infringed upon Hua Yuan’s first rights in the mark. The disputed trademark was applied in Class 25 with registration number 1497462. During prosecution of the trademark, Hua Yuan submitted certificate of the No. 590673 trademark and No. 696935 trademark as evidence of its first rights in the mark. As indicated by the documents, the trademarks were registered before the trademark “Lao Ren Cheng.” Considering the opposition was mainly filed on the ground that Hua Yuan’s first rights had been infringed rather than due to similarity of the trademarks, the focus of this particular case depends on whether a trademark certificate may be treated as evidence of trademark ownership.

“Do Not Hire Agreements” among Google, Intel, Apple and Other Tech Firms Violates Chinese Laws?

Posted on January 30, 2013 by yytbest

(By You Yunting) As reported, the CEOs of tech giants Apple, Intel, and Google might be forced to go to court to account for mutual unwritten agreements about not soliciting each other’s workers for employment. These cases started due to the dissatisfaction of relevant employees, who believed that such “do not hire agreements” damaged that legal rights and interests. The news has also revealed emails from former Apple CEO, Steve Jobs, threatening Palm and Google and demanding that they stop using headhunters to obtain the email addresses of Apple employees. This news also raised the concerns within the industry.

Is Tencent’s 51Buy’s “Higher Price Reimbursement” Strategy against 360buy Illegal?

Posted on January 29, 2013 by yytbest

(By You Yunting) As reported by the media, the e-commerce site 51buy.com has instituted a so-called “higher price compensation” strategy: if clients of 51buy.com, an affiliate of Tencent, find a lower price for an item on 360.com, then 51buy.com will refund the price difference to the client as credits. According to 360buy.com, however, this action violates the Anti-unfair Competition Law and relevant commercial ethics. 360buy.com therefore sent a warning letter to 51buy.com. In reply, 51buy.com used its Weibo to state that the activity is legitimate and will continue.

Will the Wang Lao Ji Brand Holder’s Litigation Injunction Application Against Jia Duo Bao Be Approved?

Posted on January 28, 2013 by yytbest

(By Albert Chen) The hearing in the false advertising dispute between Guangzhou Pharmaceutical Holding Company (“GPHC”) (SSE: 600332) and Jia Duo Bao (“JDB”) was held in January of 2013 in the Guangzhou Intermediate People’s Court. In addition to the arguments over false advertising, the application for a litigation injunction has been hotly debated. Today, we would like to introduce you to the injunction, which is called “preliminary execution” in China’s Civil Procedure Law.