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Chinese Tech Websites Begin to Pay More Attention to the Copyright of Translated Work

Posted on November 16, 2012 by yytbest

The competition among Chinese tech websites is fierce, and in order to gain an advantage in the battle, many translate essays from American blogs into Chinese and publish them on their websites without permission from the author. Recently, apple4.us, a China-based tech blog, announced they will no longer translate essays without authorization. Furthermore, they will withdraw all past unauthorized translations and ask permission from the authors.

Here is the whole story: Lawrence Li (李如一), an author for apple4.us, translated What Is and Is Not a Technology Company by Alex Payne without authorization and posted it on apple4.us. An editor of Donews, a tech blog under Qianxiang, asked Mr. Li and another apple4.us writer, Hu Wei, for authorization to reproduce the translated essay. Despite never giving confirmation, Mr. Lee later found that Donews had reproduced the essay.

Does Chinese Trademark Law Permit the Coexistence of Identical or Similar Trademarks?

Posted on November 15, 2012 by yytbest

Last year, the Supreme People’s Court issued the final decision in the protracted dispute between LACOSTE and CARTELO. The decision clarifies cases involving long brand history and could guide future hearings on similar disputes in courts of all levels. In the decision, LACOSTE lost the lawsuit, and no infringement was found on the part of CARTELO. In the judgment, the Court took the first steps towards establishing a system of “trademark coexistence,” which means the coexistence of similar trademarks in the same class, for use in China’s trademark cases. Today’s post will provide an analysis of the application of this system in China.

What Receives Protection as a Trade Secret in China?

Posted on November 14, 2012 by yytbest

By Albert Chen

In an essay posted several days ago, we discussed how infringing another’s trade secret is a kind of unfair competition. Although the Anti Unfair Competition Law contains a definition of trade secret in principle, this definition is not very detailed, and there might still be a fair number of differences between understanding and actual practice. Today’s essay will share the author’s research and analysis on whether Chinese law contains any further regulations on the term “trade secret.”

Unauthorized Derivative Work Still Receives Protection Under China’s Copyright Law

Posted on November 13, 2012 by yytbest

By Luo Yanjie

The copyright holder of Pleasant Goat (喜羊羊), a popular Chinese cartoon figure, recently brought actions against the unauthorized use of the character in Flash games on several game websites. According to Chinese copyright law, the copyright holder must give permission to use art in a game, otherwise it will result in infringement. This is easily understood. But, if such an unauthorized game is then used on another website without the original developer’s consent, does this infringe the interests of the game developer? Today’s post will discuss this problem. In my opinion, even if the game developer used the cartoon character to create software without authorization from the copyright holder, the software still receives protection under the Copyright Law, but its protection has definite limits.

Is It Lawful for News Websites to Demand Payment of Fees for Google and Baidu Searches

Posted on November 12, 2012 by yytbest

(By You Yunting) According to a report in the New York Times, as also reported by some European websites, Google is recompiling its searched news results as a news page. It may be said that this method could infringe the copyright of the original publishing websites and, as a result, Google should pay fees for the websites. This idea has received support from both the French and German Governments, yet Google believes that its behavior fully conforms to the law, and thus should not have to pay any fees. In China, the main search engines Google and Baidu provide this kind of news search service, and today’s post will discuss whether it is lawful for news websites to claim fees from the search engines.

What is Protecable under China’s Anti Unfair Competition Law?

Posted on November 9, 2012 by yytbest

By Albert Chen

Recently, as researched by Beijing No.2 Intermediate People’s Court (note: the link is in Chinese), the judicial protection of Online Intellectual Property Rights in China has not kept pace with the development of Internet technology and online services in the country. Among these protections, it has been found that the Anti Unfair Competition Law has not sufficiently covered all situations in which unfair competitive behavior is an issue. Specifically, it has been found that provisions of the Anti Unfair Competition Act cover only about fifty percent of cases involving Online Unfair Competition. As for the remaining cases, they can only be governed by the principles outlined in Article 2 of the Anti Unfair Competition Law , providing that “[. . .]an operator shall, in market transactions, abide by principles of voluntariness, equality, fairness, honesty and credibility, and observe generally recognized business ethics.” In today’s post, we would like to share our analysis on the Chinese Anti Unfair Competition Law, and to discuss each situation as can be seen under the current law.

China’s Latest Laws and Regulations as of October 2012, II

Posted on November 7, 2012 by yytbest

V. The Supreme People’s Court Published its Third Group of Guiding Cases.

The Supreme People’s Court published the third group of guiding cases on September 28, 2012. Four cases were published, including two civil cases and two criminal cases. The two civil cases mainly concern the concrete application of the Company Law and further clarify the scope of judicial review for litigation to cancel company’s resolutions and shareholder liability for liquidation. The two criminal cases concern new methods of embezzlement and corruption and limited stay of execution with reprieve.

Chinese Latest Laws and Regulations of October 2012, I

Posted on November 6, 2012 by yytbest

I. The State Council Issues the Sixth Batch of Items Requiring Administrative Approval to be Abolished and Adjusted.

On October 10, 2012, the State Council issued the Decision on the Sixth Batch of Items Requiring Administrative Approval to be Abolished and Adjusted (hereinafter referred to as the “Decision”), accordingly, 171 items are cancelled and 143 items are adjusted.

It shall be noted that the items abolished according to the Decision include the requirement of pre-approval for commercial service providers of Internet information to be listed in the domestic market, approval for contracted operation or entrusted operation of Sino-foreign contractual joint venture enterprises by foreign enterprises (including Hong Kong, Macau and Taiwan), approval for the establishment of certification consulting institutions and a series of items previously being regulated by the China Banking Regulatory Commission (CBRC), China Securities Regulatory Commission (CSRC), China Insurance Regulatory Commission (CIRC) and State administrative for Foreign Exchange.

An International Trade Dispute with Trademark Parallel Import Involved

Posted on November 5, 2012 by yytbest

By Lear Gong

The author recently handled a lawsuit involving trademark parallel import. The case itself was not complicated: a famous American bedding design company (“US Company”) holds trademark A in both China and Japan. The US Company licensed a Shanghai home furnishing company (“Shanghai Company”) to manufacture and sell products marked with trademark A within the territory of mainland China. A Japanese home furnishing company (“Japanese Company”) offered to import trademark A furniture from China to Japan, but demanded a written license from US Company. With the promise from the Shanghai Company, the parties concluded a sales contract, but the clause on the Shanghai Company’s duty to get a license from US Company was not clear. From the time the contract was concluded until the products were delivered, the Japanese Company always urged the Shanghai Company to present it the certificate of license issued by the US Company, but the Shanghai Company did not reply or present the certificate. The Japanese Company moved to terminate the sales contract based on failure to perform. The Shanghai Company then filed a lawsuit against the Japanese Company demanding that it continue performance of the sales contract.

The Judicial Jurisdiction of Network Infringement in China

Posted on November 2, 2012 by yytbest

By Albert Chen

In the post Could Apple Use Objection to Jurisdiction to Prolong the Litigation Period?, we introduced the objection to jurisdiction Apple submitted to the Beijing Second Intermediate Court after it was sued by the China Writers Alliance over downloads in Apple’s App Store. In China, the infringement or tort cases shall be brought to the court of infringement place or the domicile of the defendant, and the infringement place may include the place where the infringement takes place or the place where the consequences of the infringement are felt. With regard to network infringement, could the place where the consequence of infringement is felt include any computer terminal? Today, we will introduce the relevant system.

Different Judicial Opinions from Cases on Name Trademarks and Domain Name Conflicts in China

Posted on November 1, 2012 by yytbest

By Albert Chen

In the first half of this year, our website posted an essay discussing the domain name dispute heard in the Shanghai No. 2 Intermediate People’s Court (“Shanghai Court”) concerning the renowned comedian Zhou Libo. Recently, the Beijing No. 1 Intermediate People’s Court (“Beijing Court”) decided a very similar case. Yet there were very different standards used to decide the different cases in Beijing and Shanghai. The most critical point is the determination of whether, after receiving the invitation to buy the domain name, the rights holder had bad faith during registration and use of the domain name.

Introduction to Copyright Protect on Clothing Design in China

Posted on October 31, 2012 by yytbest

By Luo Yanjie

The clothing has been long seen the most afflicted field of IPR infringement, and in addition to the common trademark infringement, the pass off on the design or model developed by others is also ubiquitous. To pass off the design of the clothing is of no way to be protected by trademark law, for which shall be covered by the copyright law. Considering the clothing itself is not the statutory protective object in law, how to protect the design of clothing is also among the long argued topics. In today’s post, we would discuss over the issue.

How to Settle Trademark and Trade Name Conflict in China

Posted on October 30, 2012 by yytbest

By Albert Chen

For the prior approval on the company name by the administration of industry and commerce as well as the preliminary examination by the trademark authority in China, no material checks on any conflict against first rights would be conducted. And that has resulted in the numerous conflicts between the trade name and trademark. In today’s post, you could see our opinions on the settlement of the conflict.

I. The administrative way

It is feasible to settle the trademark and trade name conflict through administrative way in China. By Opinions on Several Issues concerning the Settlement on the Conflict between Trademark and Trade Name (the “Opinions”) issued by the SAIC (the State Administration of Industry and Commerce), the conflict occurred within a province shall be settled as in charge of the provincial administration of industry and commerce, and those involves different provinces, shall be settled by SAIC.

Is It Illegal to Unlock or Jailbreak iPhone and iPad in China?

Posted on October 29, 2012 by yytbest

By You Yunting

A friend asked me a question: why by the latest USA legislature, to unlock iPhone shall be against the law, while it is permitted by law to do so for iPad? This question is complicated on essence, and it actually involves two restrictions designed by Apple on its devices.

On the initial launch of iPhone, the exclusive operating partner of Apple for its new device in USA was AT&T, and therefore it built the capability into the phone so as to ensure only the AT&T would be service network. Later on, as detained a slow internet speed, such a SIM lock was soon been unlocked, and from then on other operator could serve the users with iPhone.

Supreme Court Loosened Procedural Standards of Evidences Collected Outside China

Posted on October 26, 2012 by yytbest

By Luo Yanjie

The so-called overseas evidences refer to those evidences developed outside China. In IPR cases, for most right holders are admitted in foreign countries, we have seen a high chance of overseas evidences’ showing up. By Article 11 of Rules on Civil Evidences (the “Rules”):

“If the evidence submitted by the party is developed outside P. R. China, they shall be notarized by the authority where it is collected, and be witnessed by Chinese Embassy or Consulate there; or to be verified through the procedures agreed in the convention between the country and China”.