Could Bolt’s Portrait be Used in Trademark?

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By Albert Chen

The fastest man Usain Bolt continued his legend in London Olympics by claiming 3 gold medals, accompany with his record, Bolt’s celebration gesture also impresses the spectators. But in recent, a company from China’s Liaoning Province (the “Liaoning Company”) applied sprinter’s celebration gesture as his trademark.

The trademark applied by Liaoning Company is the combination of a black sportsman in yellow jersey and Bolt’s iconic victory gesture on the left half, and the Chinese character of “Real Hero” on the right side (the “Real Hero trademark”). There are three classes have been applied this time, among which the application in Class 43 has been rejected for others’ first registration, the application in Class 25 was approved and that in Class 28 is facing the opposition from Bolt’s team.

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Analysis on Search Promotion’s Infringement Liability against Trademark and Fair Competition

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By Luo Yanjie

In recent, 360buy.com, also called Jingdong Market, which is a famous online retailer in China, lost its lawsuit in an unfair competition dispute. In the case, another company called Jingdong Rubber registered the domain name of jingdong.cn, who recently found 360buy.com (Jingdong Market) will be on top of the search result of www.jingdong.cn, and right to the results is the link of “brand propaganda”. Then Jingdong Rubber filed a lawsuit against 360buy.com and Baidu (NASDAQ: BAIDU), accusing the defendants of unfair competition. After the hearing of the 1st instance, 360buy.com was deemed liable for unfair competition, yet meanwhile, Baidu was decided free of liability.

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How China Laws Provide on Song Covering in Talent Shows

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By You Yunting

A question raised up for me on Weibo stating: should all the singing performances by the participants in talent shows be licensed by the copyright holder? And who shall take the infringement liability once it is accused by the right holder? Behind the question, the most heated news related to the topic is that Universal sent a lawyer’s letter to Li Daimo, the participant of The Voice of China, accusing his unlicensed performance of “You Exist in My Song”, the works of Universal’s singer. Also in the letter, the company demands the ceasing of the performance of the song, by both the participant and The Voice. The seemingly short question actually has many legal issues in it, and the following is my answer to them.

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App Store: Duty Free for Safe Harbor Principle in China?

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By You Yunting

In March of 2012, 22 Chinese authors filed a lawsuit against Apple in Beijing No.2 Intermediate People’s Court and claimed  compensation of more than ten million. In the case, the plaintiffs stated that their works have been adapted into apps used on iPhone, iPad and iPod Touch, free of being charged at App Store. The case is the first lawsuit with the operator of App Store being the defendants, and will produce a prominent influence on the newly developed online store, which was launched in 2008 and with more than 360 million users . Now the litigation is under the spotlight, and this essay is focusing on the legal status of Apple and the defects in the process complaints of the store.

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Copyright Issues behind Disputes on Beijing Love Story

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By Albert Chen

The popular TV drama Beijing Love Story (the “Story”) has become the hot topic of  social discussion. The discussion was triggered about with whom the copyright  ownership of the story resides, on which both editors Chen Sicheng and Li Yaling claimed the right over it.  Chen planned to shoot a film of the Story which Li was against, with the reason that any licenses of the works shall have to go through her approval and that she will have to be paid  remuneration. With the  escalation of the dispute, both parties seek the settlement through legal ways.

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Damages from Over Promotion by E-retailers

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Recently, a sale’s promotion campaign (note: the link is in Chinese) is launched by China e-commerce merchants on Weibo, a twitter like website. On 14th August, Mr. Liu Qiangdong, CEO of 360buy.com made a statement on Weibo that all the major home appliances sold on his website will maintain ZERO gross profit in the coming 3 years, and will also be 10%  cheaper than those sold by Sunning and Gome, who are also the major E-retailers in China. Facing the challenge, Sunning (SZSE: 002024) and Gome (SEHK: 493) replied that all their commodities will be cheaper than 360buy.com. After that, both sides announced they will adjust the prices in time to ensure its own prices are lower than the opponent. The quarrel on Weibo triggered a promotion battle between the e-retailers, and after the 1st day of fighting, 360buy.com said the total sales of the day had been over RMB 200 million.

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What Legal Risks for Cloud Storage Providers in China?

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By Luo Yanjie

Recently, the 115 net disk (the “115.com”,Alexa Rank No.519), a famous cloud storage service provider (the “provider”) in mainland China shut down the sharing function of its product, and that has drawn the attention from the public media. With the shut down, the external network user could no longer download the resources from 115.com links, but 115.com replied that such a measure is to prevent the copyright risk and an action shall be taken sooner or later. Other main cloud storage providers in China like Dbank of Huawei, Kuaipan of Kingsoft (HKEX: 3888), the Vdisk of Sina (NASDAQ: SINA) still provide the content sharing service, and so far we have got no news whether they will follow 115.com in the future. Then what risks may online disk providers face for copyright infringement? The following are our opinions on it.

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Why the Cybercafé could be Exempted from the Liability of Pirate Video Broadcast?

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By You Yunting

In the past few days, a Beijing court published a case (note: the link is in Chinese) involving a cybercafé who has purchased the Video-on-demand (VOD) system, and that made the court refuse the claims of the plaintiff though the right holder proved the piracy in the VOD.

VV8.com Company, a professional video system provider to cybercafé invested by IDG and Disney, detected the pirated TV drama against its copyright in the video system of a cybercafé. And then, the right holder filed a lawsuit against the piracy. The cybercafé afterwards argued that the system was purchased by it from Hero Inc. Company, who is a third party video provider, and in that transaction, both parties has agreed that all the copyright dispute shall be handled by Hero Inc.. Moreover, all the contents in the system are updated and ciphered by Hero Inc. with remote control, thus the cybercafé could not delete any videos in it. In the lawsuits, VV8.com expressed no intention to add Hero Inc. as the co-defendant and make no claim thereby.

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Latest Patent Law Revision Exposure Draft from SIPO

The State Intellectual Property Office (SIPO) published the exposure draft of the amendment to patent law on 9th August 2012. In this draft, we could find only some clauses are revised, and the followings are the articles translated by us for your reference.

The existing articles

The articles in the exposure draft
Article 46 The patent review board shall examine the request for declaring a patent right invalid and make a decision in a timely manner and notify the requesting person and the patentee of its decision. The decision on declaring a patent right invalid shall be registered and announced by the patent administration department under the State Council.

A person that is dissatisfied with the patent review board’s decision on declaring a patent right invalid or its decision on affirming the patent right may take legal action before a people’s court, within three months from the date of receipt of the notification. The people’s court shall notify the opposite party in the invalidation procedure to participate in the litigation as a third party.Article 46 The patent review board shall examine the request for declaring a patent right invalid and make a decision in a timely manner and notify the requesting person and the patentee of its decision.

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Which Part of Medical Instruction Could be Protected by China Copyright Law?

By Luo Yanjie

In recent, the Supreme People’s Court of China asked for public opinions on “judicial protection on the medical instruction’s copyright and the definition of its legal boundary”. The lawyers of our website are confronted with the same problems in practices: shall the instruction be protected by the copyright law? So, in today’s post, we would like to share our opinions on the copyright protection of the insert with the reference to our past cases and experiences.

I. Could the instruction be the works on law?

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Export Rebate: The Secret to the Cheaper Made-in-China Product Selling Outside China

It’s widely known that made-in-China products are selling at a cheaper price outside China, not only the OEM articles like Nike, but the China based Lenovo also follow that pricing. There are many reasons contributing to the different price, including pricing strategy, logistic cost, office rent, taxation and even the change or exchange rate. IN this essay, we prefer to discuss the cause of a cheaper price of the same article overseas from the aspect of tax rebate.

I. VAT rebated in export

To take the Nike shoes as the instance, when Nike plants export the shoes, China taxation authority will rebate the paid VAT occurred during the process of production and circulation before the export, and that’s called the “export tax rebate”. So, let’s first take a look at how many taxes shall be paid within Nike shoes’ manufacture and circulation before the export.

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China Arbitration War: CIETAC Announced Its Shanghai Brunch Illegal

 By Albert Chen

China International Economic and Trading Arbitration Committee (CIETAC), the well-known China based international arbitration chamber, has been on the front page of local medias these days for it hearing the trademark dispute of Wang Lao Ji and the chamber’s internal strife. And by the latest news known to us, CIETAC holds the currently heard or adjudicated cases by its previous Shanghai Branch may face the risk of invalidity.

I. The conflict

The battle was triggered by the publishing of the chamber’s new rules of association and the arbitration rules (the “new rules”), which was rejected by CIETAC Shanghai Branch with the defenses that vote of the new rules did not base on the most wills. Moreover, to Shanghai Branch’s opinions, the clauses of the new rules also damage the free will to choose the arbitration committee and hearing place, and considering the vastly improved arbitration fees and the applicable scope of the sole arbitrator hearing. What’s worse, the new rules may also jeopardize the independence of the Shanghai Branch. For these reasons, Shanghai Branch stated on 4th May (Note: the link is in Chinese) of 2012 to denounce CIETAC and restate it as an independent committee.

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The Latest Laws and Regulations of July, II

V. The Ministry of Finance Issued the Provisions on Handling Accounting of the Pilot Enterprise Levied VAT instead of Business Tax ( the” Provisions”)

On 17th of July, 2012, the Ministry of Finance issued the Provisions to coordinate the implementation of the pilot work of changing levy of Business Tax to VAT.

(From the website of the Ministry of Finance)

VI. The second Draft of Revised Copyright Law has been Issued for Public Opinions

On 6th of July, 2012, the National Copyright Administration issued a notice on the second draft of revised Copyright Law of People’s Republic of China for public opinions (the “Notice”). According to the Notice, since the issuance amendment draft of Copyright Law on 31st of March, 2012, lots of opinions and advices have been proposed by the public, based on which the National Copyright Administration revised and promoted the amendment draft. Additionally, a brief description was issued together with the amendment draft, according such brief description, the revised contents covers the content of copyright, the right of audio-visual performers, performer and recording producer’s right to receive remuneration based on the broadcast of recording production and performance, statutory license, fair use and other aspects. The deadline for the second draft for public opinions is 31st of July, 2012.

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The Latest Laws and Regulations of July, I

I.  From 1st of August, 2012, Export Enterprises won’t be Required to Go through the Formalities of Collection, Verification, Writing-off of Export Proceeds in Foreign Exchange

The State Administration of Foreign Exchange, the General Administration of Customs and the State Administration of Taxation jointly issued the Announcement on Reform concerning to Foreign Exchange Administration System of Goods Trade, and the reform will be implemented nationally on 1st of August, 2012. Reportedly, from 1st of December, 2012, the reform has been piloted in 7 provinces such as Jiangsu, Shandong, etc.. The reform covers the administration method including the cancellation of paper of collection, verification and writing-off of export proceeds, no need to go through the formalities of collection, verification and writing-off of export proceeds; implementation of dynamic sort management referring to classifying the enterprises into 3 sorts according to the compliance and the consistency of export and import of goods; and adjustment to declaration process for export, etc.. Meanwhile, the State Administration of Foreign Exchange has delivered new laws and regulations for administration of foreign exchange of goods trade to the local departments of foreign exchange and banks authorized to deal with foreign exchanges, accordingly the old documents are abolished.

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