Calculation to the Illegal Operation Income in Trademark Infringement

By Luo Yanjie

The trademark infringement in China, honestly though reluctant to admit, is very serious. That made the administration and the judicial organ pay more attention to the infringement investigation, and on the other hand, foreign invested companies could also be dragged into the conflict concerning the trademark, like Apple encountered enforcement by local administration for iPad trademark. In such circumstance, the calculation to the illegal income amount shall be important to the infringer, which shall influence their legal liability in direct way.

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Analysis on Legal Risk of Out-of-Account Kickback by Foreign Invested Companies in China

By Luo Yanjie

As the mid-autumn festival is drawing on, the producers and sellers of moon cakes in cities throughout China (note: the link is in Chinese) are keen in the promotion of the snack. And by the investigation of some reporters, some merchants even try to get a big order for the moon cake by risking the kickback, and by one case, the reporter pretended to order 200 boxes of moon cakes in the name of a company, the kickback offered to him is 6% of each 10 thousand purchase, that means a total feedback of RMB 2, 400 will be paid to the reporter for the 200 boxes purchase. And in addition to the official kickback, another part of rebate from the salesman is also available.

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Who Shall Pay for E-commerce’s Wrong Pricing?

By Luo Yanjie

With the rising of E-commerce in the retail industry, the protection on the consumers’ interests thereby emerges has been ever attended to. This article will discuss the problem of “wrong price”. Let’s take a look at the following example:

In August of last year, we saw a panic shopping (note: the link is in Chinese) on the books labeled RMB 50 which shall be RMB 1800 in origin in the book promotion on Dangdang.com (NYSE: Dang), Soon after, however, dangdang.com refused to deliver the books arguing the “wrong price” and thereafter cancelled orders. That triggered the right protection by thousands of consumers, and lawsuits filed in succession. Yet the court rejected part of the claims, and held that the contract has ever been concluded on the order cancellation, and therefore the website shall not be responsible for it. Now we would like to share the opinions with readers as follows:

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Legal Risk of Unlicensed User Data Disclosure by Internet Companies

By Albert Chen

It has been a chronic social problem that personal information could be released with no license, and that has brought widely seen information harassment, also a threat to the security of personal asset. The Economic Investigation Squad of Shanghai Police Department published a case in recent, in which the crime of illegally selling personal information has been investigated, and there involved more than 200 million pieces of information and thousands of corporate information. In an era of information, the Internet companies have a wide command of personal data compared with normal companies. Therefore, through today’s post, we would like to express our opinions on the risk and risk prevention of the information leakage.

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Could Selling Parallel Imported iPhone 5 be Trademark Infringement in China?

By Luo Yanjie

In recent, Apply unveiled its new device iPhone 5, and that exited Apple fans around the world. Yet, as sad to Apples fans in mainland China, the region is not among the first launching zones.

Due to the arrangement, the retailer from the grey market is eagerly for their new fortune with the new device launch, and some have even made the preorder for the new iPhone by smuggling the Hongkong sold one to mainland China. Then, in addition to the strike back on taxation, could Apple prohibit such selling through the claim of trademark infringement, while considering all the imported ones are the true Apple phones? Here’re our opinions:

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Difference Between Crime of Copyright Infringement and Selling Infringing Work Copies

By Luo Yanjie

In recent, a man was judged the crime of copyright infringement (note: the link is in Chinese) by Ningbo Beilun People’s Court for his selling the pirated discs. Yet, to our understanding, the crime of selling infringing work copies provided in Article 218 of Criminal Law shall be more suitable, while as seen in this case, the criminal liability was established on the crime of copyright infringement which is in Article 217 of Criminal Law. The following is our analysis:

I. the difference between the crime of copyright infringement and selling infringing work copies

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How to Legally Use Mickey Mouse Brand and FIgure in China?

By You Yunting

About one month before, the IPR Committee of Shanghai Bar Association invited the police officer from the Economic Investigating Squadron of Shanghai Police Department to deliver a speech on the criminal protection over IPR issues. And in the communication after the seminar, the police officer raised a question to the acceded lawyers, “The Shanghai Disney Land will be constructed several years later, and it’s foreseeable that there could be stores selling Mickey Mouse or other figures articles with no license thereby granted around the park. Yet, by then, the copyright protection term on Mickey could be expired, and so what measures could be taken to strike the unlicensed using or selling?”

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How to Understand “Not Known to the Public” in Trade Secret Cases by China Law?

By Luo Yanjie

Trade secret must be “secret”, a message must be “non-public” for being trade secret. Generally speaking, Information or technique is not generally known for the public and cannot be directly obtained from the open channel. Today we would like to share the topic in China law with readers as follows:

I. The definition of “non-public” in the judicial interpretation

<Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in Hearing Civil Cases Involving Unfair Competition> defines the “non-public” as follows:

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How to Define Confidential Measures in Trade Secret Cases?

By Luo Yanjie

Article 10 of China <Law Against Unfair Competition> and Article 219 of <Criminal Law> defines “Trade Secret” as “Trade secret means technical information and operational information which is not known to the public, which is capable of bringing economic benefits to the owner of rights, which has practical applicability and which the owner of rights has taken measures to keep secret.” According to the definition, information must have “confidentiality measures” before it becomes trade secret. While in practice, what measures can be identified as legally effective “confidentiality measures ” has no clear standard. Today we would like to share the topic with readers.

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Fair Use for Getty’s Picture of Statute?

By Luo Yanjie

    Getty Images (NYSE: GTY) (the “company”or “Getty”) is a company globally known for its picture license business for third party’s use. In general, the company shall appear in the court as the plaintiff, yet as reported in recent (note: the link is in Chinese), Getty was charged in Beijing Haidian People’s Court. The story is: Getty was found by a Chinese statute designer of unlicensed collection of his works into the company’s data base, which was on sale to the public; therefore, he filed a lawsuit against Getty, demanding a compensation. After the hearing, Getty was judged non-fair use in the case, and shall compensate the plaintiff RMB 5, 000 and an apology.

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Bonded Import: What Drives Goods “One-Day-Trip” to Hong Kong?

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It’s said early in 1990’s, that the container truck drivers shuffling between mainland China and Hong Kong were in excess of 10 thousand. Their main duty is to transport the mainland manufactured components and parts to Hong Kong, yet with no dispatch in the terminal, they would immediately turn around and head back to the mainland for part assembly. That was called “goods one-day-trip to Hong Kong” by Ms. Wu Yi, the deputy Premier of China at that time.

So, what drives such trips which cost however much? First, to transport mainland manufactured components to Hong Kong could make Chinese factories enjoy the tax refund as introduced in the last issue; second, for the assembling in China, any components thereby imported is under a bond, which means no tariffs shall be first paid for that import. After the export of the assembled articles, such tariffs shall then be paid. In conclusion, with this processing trade mode, less raw material or components would be occupied and the company could run the business under a no tax status; the advantage hereby produced is outrageous. Then, what tariffs may be paid during the process?

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Comments and Analysis on Beijing Treaty on Audiovisual Performances

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By Zhan Yi

On 26th June, the acceded countries at the diplomatic conference of WIPO signed the Beijing Treaty on Audiovisual Performances (the “Treaty”); the Treaty first established the overall protection system of performers’ rights concerning audiovisual works around the world.  The Treaty has covered more than 40 countries; with China being one of them. This essay is to analyze the effect on the audiovisual industry from the new Treaty, as well as the latest copyright law revisions in China.

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Latest Laws and Regulations of August 2012, II

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V. The State Administration of Taxation Issued Measures for Administration of Enterprises Income Tax on Incomes from Policy-based Relocation.

Recently, the State Administration of Taxation issued the Measures for Administration of Enterprises Income Tax on Incomes from Policy-based Relocation (hereinafter referred to as the “Measures”), which take into effect on 1st of October, 2012, meanwhile, the Notice of the State Administration of Taxation on Relevant Issues Concerning the Enterprise Income Tax on Incomes from Policy-based Relocation or Disposal of Assets (Guo Shui [2009]118) was abolished. The Measures define the income, expenses, taxation treatment of asset and others concerning relocation. The policy-based relocation of an enterprise refers to an enterprise wholly or partly relocates according to the lead of the government in consideration of the requirements of social public interests, such as diplomacy, the implementation of energy, water conservation, transportation and other public utilities and affordable housing project and so on.

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Does BesTV Infringe CNTV for Broadcasting Olympic Games?

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By You Yunting

In recent, CNTV, the subsidiary of China national television station (the “CCTV”), which in charge of its online business, quarreled with SMG’s BesTV (SHEX:600637) on the Olympics broadcasting. By the statement of CNTV, it owns the exclusive online broadcasting right of 2012 London Olympics in China, yet BesTV, with no license form CNTV, provided 1) the streaming of Olympic games, 2) program time-shifted playback through server storage and 3) VOD to local cooperated IPTVs, and that damages CNTV’s legal rights. So far we have heard no reply from BesTV on the accusation.

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Latest Laws and Regulations of August 2012, I

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I. Eight Provinces Including Beijing will gradually Develop the Pilots to be Levied VAT Instead of Business Tax from 1st of August, 2012.

The Ministry of Finance and State Administration of Taxation jointly issued the Notice on Developing the Pilots to be Levied VAT Instead of Business Tax in Transportation Industry and Partly Modern Services Industry in 8 Provinces or Cities including Beijing (hereinafter referred to as the “Notice”) on 31st of July, 2012. According to the Notice, upon the approval of the State Council, the range of pilots is extended to Shanghai, Beijing, Tianjin, Jiangsu, Anhui, Zhejiang, Fujian, Hubei and Guangdong. The transition of such tax policy shall be completed before 1st of September, 2012 in Beijing, 1st of November, 2012 in Fujian and Guangdong and 1st of December, 2012 in Tianjin, Zhejiang and Hubei. The pilot plan is basically the same as that of Shanghai. On 10th of August, 2012, the State Administration of Taxation published the Announcement on Relevant Issues concerning Qualification Verification of a General VAT Taxpayer in 8 Provinces and Cities Including Beijing Developing Pilots to be Levied VAT Instead of Business Tax.

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