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Convention on the Recognition and Enforcement of Foreign Arbitral Awards

Posted on April 16, 2012 by yytbest

Article I

1. This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought.

2. The term “arbitral awards” shall include not only awards made by arbitrators appointed for each case but also those made by permanent arbitral bodies to which the parties have submitted.

Is Microsoft Involved in Corruption in China in Genuine Software Trend?

Posted on April 13, 2012 by You Yunting

According to the report of local media in China (note: the link is in Chinese), the genuine software trend led by China authority has aroused corrupt, and the officers of Shenyang copyright department, a city in North China, have been punished for their misfeasance in the introduction of genuine software, and Microsoft Inc and its local sales agents are also involved in the scandal.

The Discipline Inspection Committee of CPC in Shenyang City and Shenyang Monitor Department recently investigated a case of forced purchase by cybercafé owner with the pressure from Shenyang Culture and Broadcast Administration. And the investigator claimed the scandal is the inharmonious sound in the construction of software environment, and also an unwise measure damaging the interests of enterprise and social public. The chief office of copyright office of Shenyang Culture and Broadcast Administration Pan Hai Long failed to follow the local regulation “Program on Promoting the Genuine Software Using in Cybercafes” in the administrative act, which demands the group buying, central purchasing and public bidding, and negotiated the purchase price directly with Microsoft accompanied with staffs from the industry association.

Will Copyright Law Modification Break Down Recording Industry?

Posted on April 12, 2012 by You Yunting

—digest of Sohu Weibo interview on Exposure Draft of Copyright Law

On the invitation from the biggest web portal sohu.com, Mr. You Yunting was interviewed on sohu’s microblog for the Copyright Law exposure draft (the “Draft”), and today’s essay is the digest of the interview. And for your convenience in reading, we’ve made a few alterations to the questions and our answers.

1. Q: Is the modification of this time kind of progress or retrogress?

A: From the legislature technology, the modification is a progress while it remains problems.

Better or Worse? Comments on the Exposure Draft of Copyright Law

Posted on April 11, 2012 by You Yunting

Mr. You Yunting was interviewed by Tecent weibo for his comments on the exposure draft of the Copyright Law (the “Draft”), and today’s essay is the digest of the interview. And for your convenience in reading, we’ve made a few alterations to the questions and our answers.

First, we would like to say that the Draft is more scientific than the original one on general, while it remains two main problems: 1) it needs more respect on the right of music writers and recording companies; 2) Although the collective management organization has more power with the Draft, it’s unclear system of interests distribution and incomplete operation system, as well as the suspicious relation with the Copyright Office are all arousing the public arguments.

Different Local Regulations on Compensations and the Effect of Non-competition Agreement

Posted on April 10, 2012 by You Yunting

The system of noncompetition is regulated in China Labor Contract Law, “If　a　Employee　has　a　confidentiality　obligation,　the　Employer　may　agree　with　the　Employee　on　competition　restriction　provisions　in　the　employment　contract　or　confidentiality　agreement,　and　stipulate　that　the　Employer　shall　pay　financial　compensation　to　the　Employee　on　a　monthly　basis　during　the　term　of　the　competition　restriction　after　the　termination　or　ending　of　the　employment　contract.” By the article, a financial compensation is demanded for the conclusion of non-competition agreement, while no legal regulation on the effect of such articles when no compensation is paid. Therefore, on the issue, the adjudication or decision made by local courts or labor arbitration committee in China varies much, and today’s post is our analysis on it.

Several Conclusions from Governance Right Disputes among Shareholders

Posted on April 9, 2012 by You Yunting

A three-year lasting dispute between shareholders of a property management company (the “Company”) was finally settled in recent, with the infringing shareholder judged to compensate the Company. Commencing from 15^th October 2008, the case was adjudicated on 20^th January 2012 at last after the arbitration of 3 years and 3 months, and with its complex plotting, the dispute could be a lesson to the shareholders of Chine enterprises.

In 2008, after years of operation, the Company has come into a stable and fast development, and its major shareholder Zhang, also the legal representative and chief director of the Company planned to introduce the strategic investment to expand the scale of the company. In June of that year, Shi, who once studied abroad and got in touch with Zhang on the beginning of the same year, purchased 23% of the company share on the approval by other shareholders, and took the post of deputy general manager in the company afterwards, which led to the separation of the Company power that Zhang took charge of the clients exploration and relationship while Shi was responsible for inner management. On 29^th August, the new Legal Director appointed by Shi adjusted the Articles of the Association, and by the new regulations the supervisor has the right to dismiss the legal representative and director of the Company. And that lay the powder hose to the future conflict in the Company.

Introduction to 3rd Revision Draft of China Copyright Law

Posted on April 6, 2012 by You Yunting

On the beginning of April 2012, the National Copyright Administration of China (NCAC) released the exposure draft for revision of China Copyright Law (the “Draft”) accompanied with the interpretations on the draft. Today, we are going to introduce you the revision. (the image is the cover of China Copyright Law)

(I) the works

(1) The original “cinematographic works” is revised to the “audiovisual works”, and the original “video recording” is deleted which will be protected as the audiovisual works;

How Chinese Companies Deal with Warning Letters from Adobe?

Posted on April 5, 2012 by You Yunting

Adobe lawyer’s letter, Photoshop piracy, genuine software, original software, China pirated software, China software lawyer, venture company genuine trend, Microsoft, Autodesk, Adobe, warning letter against piracy, lawyer’s letter for warning against piracy, evidence liability of pirated software using, windows fire wall, modify hosts file piracy, shield Adobe server, pirated information using, steal client’s piracy, self remedy evidence collection, administrative complaint, judicial preservation, seal up piracy, evidence preservation application, genuine trend of government

To Stem the Passing Off on Michael Jordan

Posted on April 4, 2012 by You Yunting

As reported, Michael Jordan, the basketball legend, made an announcement through PR Newswire that he’s formally suing Chinese sportswear maker Qiaodan Sports (the “Qiaodan Company”) for using without authorization. To Jordan’s words, what makes him more disappointed is his children’s names are also infringed by the company, and he also added the lawsuit is not about money.

Actually “Qiaodan”, the transliteration in Chinese of Jordan, accompanied with the logo of a basketball man have long been used by the Chinese sportswear maker, and that could not be newly known to Jordan in afraid. However, the lawsuit is filed when Qiaodan Company is preparing its listing; therefore “it’s not about money” might more accurately to be “it’s not ALL about money”.

New Chinese Laws and Regulations in March of 2012, II

Posted on April 3, 2012 by You Yunting

Today’s post is the 2^nd part of new laws and regulations in March.

V. The State Intellectual Property Office (the “SIPO”) Issued the Revised Measures for Compulsory License on Patent Implementation (the “Measures”)

On 20^th March, the SIPO issued the revised Measures that will come into effect on 1^st May, 2012 on its official website. The revised Measures is the combination of the 2003 Measures and 2005 Measures for Compulsory License on Patent Implementation concerning Public Health Problem (the “2005 Measures”), for example the revised Measures additionally provides the terms of compulsory license in the circumstance of emergency and public interests, and compulsory license of medicines that, actually, has been provided in the 2005 Measures.

New Chinese Laws and Regulations in March of 2012, I

Posted on April 2, 2012 by You Yunting

I. The Standard on Minimum Salary in Shanghai Municipal will be Increased from 1^st April this year

On 14^th March, the Shanghai Municipal Human Resource and Social Security Bureau issued the Notice on Adjustment of the Standard on Minimum Salary in Shanghai; accordingly, the standard on Minimum monthly salary will be increased from RMB 1280 to RMB 1450, and the standard on minimum salary per working hour will be increased from RMB 11 to RMB 12.5 from 1^st April. The standard of lowest monthly salary excludes the amount of social insurance premium and housing fund, which shall be paid by the units separately according to laws, regulations and rules. Therefore, the standard on minimum monthly salary in Shanghai Municipal still remains the highest in China.

Latest News of iPad Battle: Shenzhen Court Refused Bankruptcy Application against Shenzhen Proview

Posted on April 1, 2012 by You Yunting

According to the news from China Daily (note: the link is in Chinese), there’s new progress in the iPad battle between Apple and Proview, and just like our past judgement, for the value of iPad trademark is impossible to estimate, the Shenzhen Intermediate People’s Court recently adjudicated the refusal on Taiwan Fubon Insurance’ s application on the bankruptcy liquidation of Shenzhen Proview.

Taiwan Fubon Insurance applied the bankruptcy liquidation to the Shenzhen Intermediate People’s Court on Shenzhen Proview who failed to clear the debt due and being insolvency. After the investigation, the court takes Shenzhen Proview as the only legal owner of iPad trademark for the mark is still registered under the name of Shenzhen Proview. Currently, Shenzhen Proview’s intangible asset are remained un-estimated with its value not determined, and thus it could not decide whether Shenzhen Proview is trapped in insolvency and enable to pay its debt; therefore the court adjudicated the refusal of Taiwan Fubon Insurance.

Theoretical Analysis on the Dispute over the Taxation on the PE Premium

Posted on March 30, 2012 by You Yunting

By the news, the original shareholder of the company invested by the private entity (PE) is demanded to pay the enterprise income tax for the premium produced from the investment, and that has arisen wide arguments among the public. And such arguments mainly come from the legislative blank and the different understanding of the taxation administration and the company from their own stance on the issue. To us, despite no direct laws issued on it, a definite conclusion could be made from the existing Corporate Law, enterprise income tax law and basic legal theory that no company income tax shall be levied on the premium.

China Ranked 7th International Trademark Application

Posted on March 29, 2012 by You Yunting

On March 13th, from the World Intellectual Property Organization (WIPO) official website, in 2011, China submitted 2149 Madrid international trademark registration system application to WIPO, accounting for 5.1% of the total, and ranked seventh in the world with one position advanced by 2010. In addition, China remained the most designated country for trademark protection.

The top three applicants are EURO, Germany, U.S.A., and China took the post of the seventh with the application of 2149. For the annual development rate, Russia ranks first and China at the place of fourth.

Why Apple Store’s Design Patent Application is Not Necessary? II

Posted on March 28, 2012 by You Yunting

The post will be published on our website for two days, and today is the second half of it. (the image is the picture of Apple Store in Lujiazui from the www.apple.com.cn)

III. The legal risk in the lawsuit filed against design infringement

Furthermore, once Apple initiate the lawsuit basing on the design, it may be trapped in the patent validity and serial lawsuits, and it’s also a common challenge of patent lawsuits in China.

1. The poor stability of design patent

Despite the design patent is granted by the administration after approval, the organ will not examine the novelty and creativity of the patent applied for it being instable at all. For example, in the design dispute between SECO and HONDA (note: the link is in Chinese), when HONDA sued against SECO for the claimed plagiarism of SECO’s S-RV to its CR-V, the defendant filed the application of patent validity, and present the evidence including the previous design patent applied by HONDA.