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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What is the Best Solution to Trademark Protection in China

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By Luo Yanjie

Trademark infringement, trademark right protection, trademark application, trademark agency, trademark lawsuit, trademark administrative complaint, trademark custom record, trademark infringing products seal, trademark lawyer, trademark complaint, trademark administrative punishment, trademark infringement claim, trademark lawsuit compensation, trademark law, crime of trademark infringement, crime of trademark counterfeit, crime of sales of fake trademarked products, crime of illegal manufacture & sales of illegally manufactured trademark,

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Does Kingdoms Kill Game Infringes Olympic Champions’s Name Right?

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By Albert Chen

To use famous person’s name as the game character could be deemed infringement? In recent, we found a case quarrelling in that dispute in China.

The popular online game Kingdoms Kill introduced Sun Yang and Ye Shiwen, the gold medal swimmer of China, as its game character with the upsurge of the recent closed international games. As stated by Bianfeng Company, the operator of the game, such virtualized figures would be withdrawn after August. Yet, on the other side, Ye’s father claimed they have make no license to Bianfeng on that game development. After reading the news, a question came up with me: is that infringing the rights of Sun and Ye? The following is my analysis:

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A Way for Companies to Agree on Copyright Belonging with Employees in China

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By Luo Yanjie

In real life, a large number of outstanding copyright works are created during people’s work. Outstanding works will undoubtedly bring great benefits to right people which lead to disputes. For example, Hu Jinqing and Wu Yun, The father of Calabash Brothers, sued Shanghai animation film studio years ago, who were asked to confirm whether the copyright of characters in “Calabash Brothers” belonged to them, which the studio said the art character’s copyright belongs to the studio (note: the link is in Chinese).

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Is It Illegal for 360buy Blocking Etao’s Price Comparisonand Plugin?

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Today we are going to discuss legal problems concerning the 360buy blocking Etao.com, Alibaba’s price comparison website,’ and its plug-ins. And it shall be first pointed out, the author has no relation with either party of the event. The introduction to the event background:

In November of 2011, 360buy took technical measures to block the price search engine of Etao, who afterwards replied it would no longer index the price data of 360buy by Weibo. Yet in the price war between 360buy and Suning, Etao again published the live price comparison between 360buy and other online shopping stores. And in recent, 360buy further blocked the browser plug-in of Etao on 360buy.com, and the plug-in is designed to show the prices on different websites of the same product. Etao stated 360buy is paralyzing its software.

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Why It Is Not Easy to Combat QVOD Copyright Infringement?

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By Luo Yanjie

Most right holders of video in China are unsatisfied with a company named QVOD (the “QVOD Company”). Because anyone can use the QVOD Company’s web establishment scheme and the QVOD (the software of QVOD Company) to build a web to stream videos for users, and it has resulted in the wide spread of pirated works, while the right owners could not find the owner of websites in their right protections. Then, by view of law, is the QVOD infringing others’ rights? And what liabilities shall it take accordingly? The following is our analysis on it:

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Trademark Infringement Liability of Real Estate Lessors in China Law

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 By Luo Yanjie

In a recent news report (note: the link is in Chinese), Guang Dong OPPO Mobile Telecommunications Co., Ltd, the holder of trademark OPPO used in mobile phones, filed a lawsuit against a company and the lessor of its store, claiming ceasing the infringement and the compensation. Beijing Fengtai District People’s Court judged the joint liability of infringement of the both the shop and the real estate lessor and shall compensate the plaintiff 10, 000 yuan.

This is a typical trademark dispute arisen by the shop’s infringement and then lead to the liability of the market which is the real estate lessor, and in the similar cases, the market tends to feel being wronged for what it provides is the real estate renting not the conducts or aids in the infringement, yet the court will judge the establishment of the infringement liability. Today, we would like to analyze the liability taking in the similar cases.

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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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