(By You Yunting) China is large consumer of software, and, as indicated by the statistical display of the Copyright Protection Center of China (note: the link is in Chinese), in the first half of 2012 alone, China completed 58, 333 software copyright registrations. Today, we will introduce the legal issues concerning the rules for software naming during copyright registration, the conflicts between software names and trademarks, and the special position of software names within the online game industry.
How to Judge the Copyright Holder of Cinematographic Work in China?
(By Luo Yanjie) In a previous infringement case against cinematographic we handled, the plaintiff submitted several articles of evidence to the court, which showed that the work belonged to different copyright holders: according to a certificate issued by the Hong Kong Copyright Center, it was Copyrighter A’s property while the subtitle authorship rights belonged to Copyrighter B. And yet, as demonstrated by a license agreement, C shall be the exclusive holder of the copyright. That made the plaintiff argue for his ownership of the copyright. In fact, due to the complexity in determining copyright ownership, contradictory disputes like the one described above are quite common in actual practice. In today’s post we will share our understanding of the issue.
How Companies in China Apply for Reserve Trademarks and Defensive Trademarks?
(By Luo Yanjie) A reporter from China Industry & Commerce News asked the author how companies should apply for reserve trademarks and defensive trademarks. The interview is as follows:
1. How to decide between the registration of a reserve or defensive trademark?
Reserve trademarks are prepared for coming new business. Because the period from application to reservation requires one year, it is suggested to prepare some spare names for new products or services being prepared or under research and development. Then, before the product is released, the company can directly select and use a name it has already registered. Generally, it is only necessary to apply for the classes the company intends to adopt, and there is no need to register many other related classes.
How to Acquire the Trademarks of Companies Whose Business Have Been Canceled or Whose Licenses Have Been Revoked in China?
By Albert Chen
Trademark assignees may sometimes encounter an awkward situation: the target trademark is in the hands of a company that has had its business license revoked or that has been cancelled. Although the trademark is still valid, others seem to have no legitimate means to acquire it. So, under these circumstances, does the assignee really have no means to acquire the trademark? In today’s post, you will find the answer.
I. Why would trademarks be left unused?
According to relevant statistics, the average life of Chinese companies is seven years, and the average of life of privately owned companies is only 2.9 years. On the other hand, however, the validity period of a trademark is ten years, and there is nothing in Chinese law that states that the trademark shall automatically become invalid when the business license of its holder is revoked or the company is cancelled. Especially when the business license has been revoked, the company still has legal capacity. It is merely incapable of conducting civil acts, including the use and transfer of trademarks, because its business license or chop has been announced invalid or has been confiscated under the punishment of business license revocation.
What Geographical Names Can be Registered As Trademarks in China?
It is reported that (Note: the link is in Chinese) Wakayama County of Japan recently announced that the trademark application for “Ji Zhou” (纪州) filed by a Hong Kong company on the Chinese mainland concerns a publicly well-know geographical name. The County has also filed an objection with the Chinese Trademark Office because this name is not appropriate to serve as a trademark. The report also stated that Wakayama County has been paying close attention to trademark applications in China since 2010 and has already had two objections granted against trademark applications for “Wakayama.” Today, we would like to discuss whether geographical names can be registered as trademarks:
How Long Is the Copyright Protection Period of Foreign Companies and Individuals in China?
By You Yunting
A reader asked: Does Chinese law protects the copyrights of foreign companies and individuals? And, how long is the protection period? Today’s post will discuss this question.
I. The three requirements for granting copyrights to the works of foreign individuals or companies
Whether or not the work of a foreign person, company, or stateless person enjoys the copyright protection period depends on whether or not they qualify as a Chinese copyright holder. By Article 2 of China’s Copyright Law, one of the following three conditions must be met:
Chinese Tech Websites Begin to Pay More Attention to the Copyright of Translated Work
By You Yunting
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?
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?
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
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
(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?
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
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
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
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.