Bridge IP Law Commentary - Page 48 of 65 - Your Guide to China IP Law！

New Chinese Laws & Regulations of May, 2012 (1)

Posted on June 1, 2012 by You Yunting

I.The Ministry of Commerce’s Approval of Google’s Acquisition of Motorola Mobility subject to Limitations

The Ministry of Commerce (the “MOC”) announced 2012 No. 5 Announcement on 19^th May, 2012. Accordingly, it decides to approve Google’s acquisition of Motorola Mobility with limitations. The Announcement states that MOC has received Google’s declaration of concentration of business operator for Google’s acquisition of Motorola Mobility on 30^th September, 2011. After MOC’s review and examination, it thought the declaration documents and materials are insufficient, and asked Google to supplement more. On 21^st November, 2011, MOC confirmed the supplementary documents and materials are satisfied with requirements, and accepted such declaration to initiate preliminary review and examination. Through preliminary review and examination, MOC thought such concentration declared is likely to eliminate and restrict the competition effect on China’s market of mobile intelligent terminal operation system, as a result, the term of review and examination has been extended twice. On 15^th May, 2012, Google submitted the final undertakings on resolution of competition issue. Ultimately, according to the Announcement, Google shall acquire Motorola Mobility subject to four obligations, including licensing Android platform on free and open basis, treating all original devices manufactures in non-discriminatory manner, obeying Motorola Mobility’s FRAND obligation on patent, and entrusting independent supervisors to supervise Google’s fulfillment of the obligations above.

What’s the Regulation in China Criminal Law on Hacking against E-Commerce Account?

Posted on May 31, 2012 by You Yunting

By You Yunting & Luo Yanjie

According to the report (note: the link is in Chinese), yihaodian.com, the first established online market in China with Wal-Mart (NYSE: WMT) has most shareholders of it, is enrolled in the scandal of account releasing. The information of more than 0.9 million users of it is just sold for RMB 500 on the internet, and so far more than one user have been withdrawn or removed the money in their account. Judging from the news, the account thief did not withdraw or use the money deposited in the account and chose to sell such information instead. Then in such situations, shall the thief take the liability by criminal law? For this issue, You Yunting, the founder of our website, has been interviewed by local TV station, and the following is its main content:

In the modern society seeing a vast progress of the internet, the data thieving of the website is an annoying problem to the website runner and the government, and so far the most powerful combating measure is the criminal lawsuit. By the existing laws in China, to chase the criminal liability of the thieves is not difficult, and we would like to analyze the specific crimes in the criminal law as follows:

I. The crime of illegal invasion into the computer information system could not be constituted

Although the misconduct is most suitable for the crime from its name, for the account thieving is based on the invasion into the computer system. But by Article 285 of the Criminal Law, the crime could only be established when “invasion into the computer information system applied in the national issues, national defense or top science field”, and so the normal e-commerce platform shall not be include in it. Therefore, no crime of it shall be established for the misconduct.

II. The crime of destroy computer information system could not be constituted

Not like the crime of illegal invasion into the computer information system, the target of the crime shall not be limited to the “state owned ones” with the normal e-commerce platform could be included in. However, the establishment of the crime demands the destroying conducted by the thief, namely the measures to paralyze the operation of the computer system. But the crime could not be applied when the thieving is conducted with taking advantage of the bug in the system rather than to destroy it, for there’s no paralysis after all.

III．Not easy to be judged as crime of trade secret violation

According to Article 219 of the criminal law, “Whoever engages in the activities which encroaches upon commercial secrets and brings significant losses to persons having the rights to the commercial secrets acquire a rightful owner’s commercial secrets via theft, lure by promise of gain, threat, or other improper means is to be judged the crime of trade secret violation”.

In the current practices, the invasion by the hacker will be deemed as such crime, however on the other hand, to our experience, the case mentioned on the beginning of the post is hard to be handled under the rule. By Article 7 of the interpretations on IPR violation made by the Supreme People’s Court and the Supreme Procuratorate, the fund amount involved in the misconduct shall be more than RMB 500, 000,(about $ 78, 616.4) then the case could be investigated as a criminal case. But in the cases like the one discussed in this post, the amount of the losses of the infringer or the gains of the thief will far less than RMB 500, 000 or is difficult to be calculated, and as to the losses coming from the trade secret releasing to the public domain, it could not be assessed for the poor evidence to the causality.

IV. The crime of theft could be judged when the money using resulted by the stolen information selling

We would first to clarify that any using of the money deposited in the account after purchase the information of it could be the crime of theft once the standard of such crime could be reached. For it’s actually kind of stealing to the private or public property.

For the thief in the case when selling the account information, the misconduct is actually made when knowing the intension of the purchaser. Therefore, the thief is providing the convenience to other’s stealing when selling the information, and for this reason it could constitute the indirect intent for “knowing the damages from ones conduct but do nothing to let it happen”. So, the thief could be accomplice of the money stealing and shall thereby take the criminal liability.

V. The crime of illegal acquisition of the data in the computer information system could be judged when not selling the stolen information after stealing it

The crime is a newly added one in the VII amendment to the criminal law, and refers to any serious conduct of acquiring the date stored, processed or transmitted by the computer information system with the invasion into the computer information system used in the field in addition to the national matters, national defense or top science field or with other methods.

Despite the regulation that the crime could only be established when the conduct is serious, by the law interpretation on cases of damages to the security of the computer system made by the Supreme People’s Court and the Supreme Procuratorate, the seriousness could decided when more than 500 sets of information are acquired. For the accounts on the e-commerce platform are of tens of thousands, the crime could be judged to the thief when stealing the data in the e-commerce information stock.

To be conclude, the stealing of the account information by the thief could constitute the crime of illegal acquisition of the data in the computer information system; the crime of theft could be judged when user’s money deposited in the account is used for much when selling the stealing account information; the crime of trade secret violation could be established when there’s the evidence submit by the e-commerce runner that the losses suffered is more than RMB 500, 000. Despite the crime is different, the thief shall take the criminal liability and the e-commerce runner shall report to the police department at the first time detecting the account stealing to avoid further losses.

Will JDB Revoke Wang Lao Ji Trademark Arbitration Award through Litigation?

Posted on May 30, 2012 by You Yunting

By You Yunting

In recent, a spat over the established brand Wang Lao Ji, also known as Wong Lo Kat, which is the most valuable herbal tea trademark in China, has occurred. The biggest distributor of the drink in China, JDB group, claimed that it has filed the application to Beijing No. 1 Peoples’ Bank to revoke the adjudication made by the China International Economic and Trade Committee (CIETAC) on the dispute.

The basic facts of the case in the reports: Guangzhou Pharmaceutical Group Co., Ltd. (the “Guangzhou Pharmaceutical’, SZSE: 600332) is the registered owner of the Wang Lao Ji trademark, who signed a trademark license agreement with Hung To Group Co., Ltd. (the “Hung To”, the parent company to JDB), by which Hung To gets the loan of the trademark of 10 years.

How to Avoid Online Game’s Risk of Gambling in China?

Posted on May 29, 2012 by You Yunting

Zhengtu is a online game operated by Giant China

By Albert Chen

In recent, the report of the online game gambling in some regions in China again hits the headline of the newspaper, and accordingly, the Ministry of Culture of China (MOC), the department supervising and managing the operation of online game, issued the notice (note: the link is in Chinese), demanding a new round of special examination on the online broad game in this May to June.

Actually, this is not the first time we have seen the special notice by MOC on the online gambling. Before that, MOC has respectively with the Ministry of Public Security and the Ministry of Commerce publicized Notices on the Regulation of Online Games Operation Order and Prohibit Gambling in Online Games (the “Notice I”) and Notices on Reinforced Management on Virtual Currency in Online Game (the “Notice II”). Basing on these notices, MOC afterwards promulgated the Interim Measures on the Online Game Management (the “Management Measures”) in June of 2010.

Search Engine in China: Liability to Infringement in Snapshot?

Posted on May 28, 2012 by You Yunting

the Baidu snapshot

By Luo Yanjie

With the increasing sense of legal protection, the copyright owner are paying more and more attention to the infringing works spread in the internet, especially for the ICP of infringing works, like the video search engine and Wenku (namely the online library). But to the annoy of the copyright owners, when the ICP deletes the infringing content, the page may be remained in the snapshot of the search engine available to the visitors, which makes the effect of right protection may be discounted. Today, we would like to share our opinions on the copyright infringement by snapshot of the search engine in this post:

Microsoft ‘s New Anti-piracy Development in China: An Ever-long Criminal Sentence for IPR Infringement

Posted on May 25, 2012 by You Yunting

The screen print of POTATO windows’ desk, a pirated windows system in China

By You Yunting

The maximum imprisonment in China Criminal Law concerning the crime of intellectual property is 7 years, but a recent judgment in Beijing against the criminal is 7 years and 6 months.

According to the report of Sina Tech, the Chinese merchant Shang Yajun was penalized the imprisonment of 7 years and 6 months for copyright infringement and the sale of illegally manufactured registered trademarks. The 1st Intermediate People’s Court of Beijing upheld the Haidian District Court’s decision, representing the longest-ever criminal sentence in China for such crimes in China.

Protection on Architecture Works in China Copyright Law

Posted on May 24, 2012 by You Yunting

the above is the Wangjing SOHO, and the bottom is the copied one in Chongqing.

Recently, Ms. Zhang Xin, the CEO of SOHO China claimed on Weibo the design of Wangjing SOHO of her company is copied by a community in Chongqing (note: the link is in Chinese), and this weibo is also forwarded by Mr. Pan Shiyi, the chairman of the board of SOHO and restated the plagiarism. Meanwhile, the official Weibo of SOHO also expressed its feeling of helpless and put up a question that could the copyright of architecture works be protected in China? To this question, in our view, the answer is definitely “YES”. And there are three main protection way to the appearance of architecture in China law system:

Legal Analysis on Conflict between Domain and Name Right According to Chinese Law, II

Posted on May 23, 2012 by You Yunting

By Albert Chen

III. What are the user’s interests on the domain and fair reasons to the registration and using?

At present, the standard in practices to judge the user enjoys the interests on the domain is to determine whether there’s a connection between the user and the domain or the main part of the domain, and this connection involves the overlap or correspondence between the name, company name or trademark of the user and the domain.

Surely, it also comes to our attention that even there’s no overlap or correspondence as mentioned above, the interests on the domain of the user or a fair reason to the registration or using of the users could also be established when a domain has been operated for a long period and thereby accumulates the social reputation, like the 163. com of Netease and 360buy.com of Jingdong.

Legal Analysis on Conflict Between Domain and Name Right According to Chinese Law, I

Posted on May 22, 2012 by You Yunting

By Albert Chen

In recent, one of the hot news in China, might be Mr. Zhou Libo’s taking back the network domain in his name (Zhou is the comedian star of Shanghai style small talk, a talk-show like performance in Shanghai dialect). Ms. Yue from Beijing registered “zhoulibo.com” (the “domain”) in 2007, and in September of 2011, Mr. Zhou filed the arbitration in the Asian Domain Name Dispute Resolution Centre (ADNDRC), claiming that the main part of the domain is as same as the pinyin of his name which is highly possible to result in the misunderstanding among the public. The ADNDRC finally adjudicated the domain to Mr. Zhou. For the dissatisfaction with the decision, Ms. Zhou brought the dispute to Shanghai No.2 Intermediate People’s Court, but the court refused all the claims of her.

Brief Introduction to Software Copyrighter’ s Right Limitation to Ultimate User

Posted on May 21, 2012 by You Yunting

by Luo Yanjie

Under the system of China Copyright Law, what right limitations may come to software owners? And what rights and obligations are enjoyed or taken by the ultimate user and what’s the liability when the infringement occurs? Today we would like to give you the introduction on the issues. There are two main litigations on the PC software, namely the Copyright Law and the Regulations on the Protection of PC Software (the “Regulation”). But according to the latest exposure of the Copyright Law’s revision, the Regulation’s articles have been all regulated in the new drafted law; therefore, it is foreseeable that the Regulation may be abolished once there publicized the new Copyright Law.

What Change on Information Communication by Network in Exposure Draft of China Copyright Law? II

Posted on May 18, 2012 by You Yunting

By Luo Yanjie

II. To enlarge the information networks: a concept coincidence with the right to transmission

Besides the enlargement to the definition of the right to the information communication by networks in the exposure draft, the new judicial interpretation also regulates a wider definition on the information networks, which includes PC internet, radio & television networks and mobile telecommunication networks. We support such enlargements for radio and television VOD is feasible with the technology development while the networks of them are excluded from the legal information networks. Since the nature of VOD on radio & television networks is of no difference from that on the internet, the information communication by networks shall naturally involve it.

What Change on Online Copyright in Exposure Draft of China Copyright Law? I

Posted on May 17, 2012 by You Yunting

By Luo Yanjie

In recent, the exposure draft of the Copyright Law (the “exposure draft”) has been the hot spots among the public, and many revisions of it have arisen wide argument, among which the most debated parts are the coercive license of the music works in Article 46 and extension management of the copyright collective management organization in Article 60 and 70. On the other hand, it also comes to our attention that rare discussion has been made on the revision concerning the right to the information communication by networks in the exposure draft, which however has been modified a lot. Although such modifications are seems to be a little bit “theoretical”, no one could deny it’s major influence in the future practices. And considering the increasing position of the internet in spreading the copyrighted works, it’s unfair to neglect the revision on the right to the information communication by networks.

Can Court Challenge Leviathan with New Anti-monopoly Judicial Interpretation?

Posted on May 16, 2012 by You Yunting

By Frank Yu

China anti-monopoly law, judicial jurisdiction, burden of proof, liability scope, anti-monopoly judicial interpretation, administrative monopoly, the industries which exercise monopoly over the production and sale of certain commodities, price supervision, public company, operator with monopolic position, abuse dominant position in the market, market structure, competition condition, market dominant position determination, regulation on monopolic conduct, sell with price lower than cost, refuse to transact, different treatment of price, fairness, justice, independence of courts, large scale state-owned enterprise, fair competition, economy operation efficiency, consumer interests, social public interests, administrative level, anti-monopoly lawsuit social effect, state secret, business secret, personal privacy, opened hearing, showed to the agent, confidentiality commitment, expert witness, cross inquiry

Data on IPR Development in China, 2011

Posted on May 15, 2012 by You Yunting

In recent, the News Office of the State Council held a news conference (note: the link is in Chinese), releasing the data on China IPR development in 2011, and the details are as follows:

Under the unified deployment of special acts by the State Council in combating the IPR infringement and the production and selling of the fake and substandard products, the filed cases in the administration of each level are 155, 900 with the involved amount of CNY 3.43 billion, 1, 702 cases were transferred to judicial organs and 9, 135 shelters were shut down.

For or Against Law? Fang Zhouzi Photoshopped Han Han’s “Jail Picture” on Weibo

Posted on May 14, 2012 by You Yunting

Han says he is 173 cm, namely 5 feet 6 inches

By You Yunting

Some friends raised me a question on Zhihu.com, a Quora like website in China, that Fang Zhouzi, a well known blogger in China, put his photographed picture of Han Han, in which Han’s background is the height table in jail , then could it be kind of reputation infringement against Han? (see http://weibo.com/1195403385/yiRc64nL7, http://weibo.com/1195403385/yiQZJhg1G)

The battle between Fang and Han is the hottest spot on China internet, and our website once posted articles to introduce the online battle and laws and regulations related. But from this January, Fang’s Weibo is flooded with more than 10 tweets against Han each day, which is truly annoying. As a man favoring Han Han, it’s truly a distress for me to face the question on Zhihu.com. But for the answer concerns the freedom of speech, though I could have refused it, I finally choose to share my opinions on it even there’s only boots rather than applauses ahead. Surely, the reply is only focusing on the “infringement” by two tweets in the links above.

By You Yunting & Luo Yanjie

I. The crime of illegal invasion into the computer information system could not be constituted

II. The crime of destroy computer information system could not be constituted

III．Not easy to be judged as crime of trade secret violation

IV. The crime of theft could be judged when the money using resulted by the stolen information selling

We would first to clarify that any using of the money deposited in the account after purchase the information of it could be the crime of theft once the standard of such crime could be reached. For it’s actually kind of stealing to the private or public property.

V. The crime of illegal acquisition of the data in the computer information system could be judged when not selling the stolen information after stealing it

Other recommended posts on our website: