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Are New Rules on Internet Publication from GAPP against State Council’s Regulations?

Posted on January 17, 2013 by yytbest

(By You Yunting) Abstract: By the “Management Measures of Internet Information Services” (the “Measures”) issued by the State Council, China will carry out a new system of filing and recording to those non-operating Internet information services, namely those services involving the open sharing of information. These websites falling within the measures shall undertake the recording and filing procedures laid out before publishing any and all information. Yet, the situation seems to have undergone some changes with the promulgation of the working draft of the “Management Regulations of Network Publishing Services” (the “Regulations”), wherein most information released onto the network would be deemed so-called “network publishing.” As provided in the Regulations, no matter whether the service is operating or non-operating, the requirements for a Network Publishing Service License (the “License”) shall apply. It can be easily seen that such regulations are being made that are essentially beyond any lawful authorization, and are in fact contrary to rules previously issued by the State Council.

Does Wind’s Sale of Tonghuashun’s Stock Constitute Insider Trading?

Posted on January 16, 2013 by yytbest

Previously, we posted “Tonghuashun VS. Wind and the Judgment Standards for Software Copyright Infringement in China” to introduce the copyright dispute between Wind and Tonghuashun. According to a recent report, two lawyers based in Beijing filed a complaint to the China Security Regulatory Commission (“CSRC”) accusing Wind and its affiliated company of insider trading, which has made the dispute more complicated.

As shown by the currently available information, from the second quarter of 2011 to the third quarter of 2012, Wind’s affiliated company was a shareholder of Tonghuashun. When the rumor emerged that Wind would sue Tonghuashun, Tonghuashun’s shares experienced several major trades. As indicated in the report issued in the third quarter of 2012, Wind sold all the Tonghuashun shares it had held. Wind explained this situation by stating that its investment in Tonghuanshun was to use its rights as a shareholder to persuade Tonghuashun to cease infringement. Today’s post will provide analysis on this issue.

Why a Chinese Court Judged Apple Inc. to Be the Actual Operator of the AppStore Rather than iTunes S.A.R.L?

Posted on January 15, 2013 by yytbest

(By Albert Chen) Recently, in the right to network dissemination of information dispute between Li Chengpeng, a well-known Chinese writer, and Apple, a Beijing judge held Apple as the actual operator of the App Store, even though the company had maintained that iTunes S.A.R.L (“iTunes”) is the actual operator, a fact afterwards admitted by iTunes. So, today’s post will introduce the reasoning used by the first instance court in its decision.

Li filed the lawsuit with the Beijing No.2 Intermediate People’s Court (“Intermediate Court”) on January 16, 2012, claiming that his latest work “李可乐抗拆记” was made into an app downloadable in App Store for free reading, which infringed his right to network dissemination of information. Additionally, as the operator, manager, and owner of the App Store, Apple should assume liability. Based on these points, Li demanded compensation for economic damages in the amount of 305,000 yuan and reasonable expenses in the amount of 5,425 yuan.

A Brief Introduction to China’s Collective Trademark Application and Use System

Posted on January 14, 2013 by yytbest

(By Luo Yanjie) A recent report said that the National Tourism Resort Brand Association for the well-known tourist attraction, Dian Lake in Kunming, received approval for a “D” type trademark certificate from the State Trademark Office—Yunnan Province’s first collective trademark. The above report shows that the collective trademark is of great value, but currently very few have been registered. What then are the features of the application and registration for collective trademarks compared with the normal ones? And, what factors should be noted for their use? In today’s post, we would like to share China’s collective trademark system with the reader.

Is OEM the Safe Harbor for Trademark Infringement in China?

Posted on January 11, 2013 by yytbest

(By Albert Chen) Whether original equipment manufacturing (OEM) can lead to trademark infringement has been long argued. The opinions on it may vary among the judicial organs in various regions and between the judicial department and various administrative departments. A Shanghai court once confirmed that a processing party should not assume infringement liability in the case Shenda vs. Jolida. Following this decision, some began to advocate the idea that OEMs could be considered a safe harbor in the seas of trademark infringement. Can that point of view reasonably be established in China? In today’s post, we would like to introduce you to Chinese cases and popular opinions in judicial circles concerning OEMs and trademark infringement.

How to Determine Infringement Conducts in Copyright Disputes in China Courts?

Posted on January 10, 2013 by yytbest

(By Luo Yanjie) The Getty Images (Beijing) Co., Ltd. (hereinafter “Getty”) provided the court with a product brochure naming defendants Shanghai Shuote Co., Ltd. (hereinafter “Shuote”) and Shanghai Yikang Co., Ltd. (the “Yikang”). Getty claimed that the brochure was procured from the 6th International Tire Exhibition in Shanghai during 19th to 20th of May 2009. The defendant argued that they had neither printed nor used the brochure. However, the plaintiff provided substantial evidence to prove that the brochure could only have been printed by the defendant; regardless, the defendants failed to provide any explanation proving otherwise. On the other hand, the court had solid reasons to presume both defendants had engaged in the printing and using of the brochure.

Analysis on the Assumption of Liability in the Serv-U Infringement Lawsuit in China

Posted on January 9, 2013 by yytbest

(By Luo Yanjie) Serv-U is a kind of widely adopted FTP server terminal software, and its main function is to help the transmission of documents on websites. Because the software is relatively small and the normal user has no way to sense the server terminal, many domestic websites in China are now using pirated Serv-U. For this reason, Rhino Software Inc., the developer of Serv-U has been continuously fighting against the piracy of its software, a story which has recently been widely reported. The list of companies sued includes LockLock from South Korea, as well as Netac and eMule, among others. The compensation claimed in these cases ranges from half a million yuan to 1.99 million yuan.

How Chinese Courts Determine Remuneration for Employee Inventions?

Posted on January 8, 2013 by yytbest

(By Albert Chen) Yesterday’s post introduced regulations concerning calculation and payment of remuneration for the invention made for hire. The post also pointed out problems in the existing law, both at the by the central government and local level, namely that they lack binding authority, have low enforcement, or provide inadequate regulation on the liability of the unit.

The author has conducted research on these points in the established cases in China and found a case decided last year by the Guangdong High People’s Court (“Guangdong Court”), which is of referential value to settling the above problems.

How Should Chinese Businesses Pay Remuneration for Inventions Created by Their Employees?

Posted on January 7, 2013 by yytbest

(By Albert Chen) Statistics have shown that since 2007, the invention made for hire have comprised over half of China’s patent applications, and the number is still increasing. According to Article 16 of the Patent Law: “The unit that is granted the patent right shall reward the inventor or designer of an employee invention. After such patent is utilized, the inventor or designer shall be given a reasonable amount of remuneration according to the scope of application and the economic results.”

Is It Copyright Infringement to Perform “Gangnam Style” at a Corporate Annual Gala in China?

Posted on January 4, 2013 by yytbest

(By You Yunting) PSY, the most popular South Korean Artist, has achieved more than 1 billion clicks, or views, on Youtube for his music video “Gangnam Style,” and has earned a global reputation. To perform Psy’s signature “horse-riding” dance has become an integral part of domestic corporate annual galas in China. In fact, the partners of our law firm have been encouraged by colleagues to perform the dance for everyone’s amusement. The problem was that none of us could actually perform the “horse-riding” dance properly. When facing such horrible demands from coworkers, a question raised by one of our associates interested me: would a performance of “Gangnam Style” infringe others’ lawful rights?

Why Apple Failed to Stop the Application of Apple-Trademark by Others?

Posted on January 3, 2013 by yytbest

(By Luo Yanjie) Two companies with a great gap in their relative strength have been seen battling with each other over the trademark of an apple image; they are the globally known Apple Inc. and a fruit food making company in Zhuang He, a small city of China. At the end of the battle, the small company won the fight, Dalian Chenji Guopin Co., Ltd. (the “Chenji”) was supported by the authority in the dispute lasted for 5 years. The dispute was triggered by Chenji’s design, which consists two apples overlapped together, and the Chinese characters “陈记” written on them. In examining the mark, we can find the apple resembles that of Apple’s, which appears to have been bitten by someone. For this reason, Apple filed the trademark opposition with the trademark office.

China’s Latest Laws and Regulations in December (II), 2012

Posted on January 2, 2013 by yytbest

V. The Ministry of Finance Issued Interpretation Number Five on Accounting Standards for Business Enterprises

Recently, the Ministry of Finance issued Interpretation Number Five on Accounting Standards for Business Enterprises, which provides interpretations on fives issues, including: business mergers, business launches, credit risk mitigation tools and related services, and how to process accounting step by step in cases where an enterprises invests equity in its subsidiary and ultimately loses its right of control through several transactions.

China’s Latest Laws and Regulations in December (I), 2012

Posted on January 1, 2013 by yytbest

I. The State Administration of Industry and Commerce and the Ministry of Justice issued the Administrative Measures for Law Firms Undertaking Trademark Agency Work, and DeBund Has Already Submitted a Renewal Record

On December 27, 2012, the State Administration of Industry and Commerce (“SAIC”) together with the Ministry of Justice issued the Administrative Measures for Law Firms Undertaking Trademark Agency Work (“Administrative Measures”), which were published on the SAIC’s website. The Administrative Measures clearly provide eight categories of work that law firms can provide related to trademarks, including: application for trademark registration or change, trademark renewal and transfer, pledge registration, license contract recording, opposition, cancellation, revocation, and Madrid System international trademark registration. According to the Administrative Measures, firms engaging in such business must apply for recordation with the Trademark Office of the SAIC. Additionally, the Administrative Measures list the matters handled by the State Trademark Review and Adjudication Board of the SAIC, such as reexamination of rejection, opposition, and cancellation and disputes concerning registered marks. The Administrative Measures come into effect on January 1, 2013.

Legal Analysis on the Preemption Dispute between Fosun and SOHO China

Posted on December 31, 2012 by yytbest

(by Bai Lituan) After six months of tense negotiation without any satisfactory result over a dispute of the 8-1 Pearl Project land plot on the Bund, Fosun (00656.HK) and SOHO China (00410.HK) finally chose to take the case to court in Shanghai. The first hearing of the case was in late November 2012. Before then, Fosun insisted that the share transaction between SOHO China and Shanghai Zendai Group damaged its right of preemption.

Publishing Regulation from GAPP: Make Most Chinese Websites Illegal in Their Operation

Posted on December 28, 2012 by yytbest

(By You Yunting) Several days ago, the author wrote an essay “Is It Illegal for Amazon.cn Running Kindle Store with A License Borrowed from Business Cooperation?” And in recent, the Office of Legislative Affairs of the State Council published the news that, the General Administration of Press and Publication (the “GAPP”) is working with other departments drafting the exposure draft of Management Measures of Online Publish Service (the “Measures”) (note: the link is in Chinese). According to the Measures, the foreign invested company shall not engage themselves in the online publishing. The domestic publishing units shall report their cooperation with foreign companies in the service of online publishing. For this reason, once the Measures would come into effect, the Amazon, a foreign invested company, would have no access to participate in the business concerning the online publishing service, and its cooperation with Chineseall.com shall be reevaluated for the security by the administration.