Tag Archives: infringement

Why Does Shanghai Court Dismiss a Non-use-Oriented Trademark Register in Malicious Lawsuit?

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(By Yue Mengyan) There are many applicants who register a tremendous number of trademarks without the use-oriented purpose. Moreover, they register trademarks on obvious malicious purpose. In such situation, their enforcement for trademark protection shall be limited and their claims for compensation against trademark infringement may not be favored by the court.

Case Introduction

Appellant (Plaintiff at the first instance): Guangzhou Zhinanzhen Exhibition Service Co., Ltd. (the “ZHINANZHEN”)

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Why It Is Difficult to Protect Copyrights in Live-Show Platforms in China?

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(By You Yunting) Some users of ZHIHU.com (One of the most well-organized community for sharing knowledges online) asked: Would the network host infringe any right while singing at his or her own live-show room? If one host receives the user contributions from the audiences for his or her singing at such live-broadcast room, would such behavior infringe any right? Here come my answers:

The biggest problem of the hosts’ singing at their own live-show rooms is not about whether such behaviors infringe any right or not. Instead, the right holders of such songs have tremendous difficulties in protecting their rights.

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How to Determine Joint Liabilities of shareholder for IPR Infringement in China?

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(By Wang Ting and You Yunting)The limited liability of the shareholders means that the liability of the shareholder to the company are limited to its capital contribution, and the independent personality of corporation means that the Company shall fulfill its external liabilities by all of its properties. Therefore, the shareholders usually do not take personal responsibility in IPR infringement cases even when the long-term business of the company is infringement of the intellectual property rights (“IPR”) in most cases. However, today we will introduce a recent case, in which the shareholders were determined to take such joint liabilities for the IPR infringements.

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DeBund Succeeds in Pushing Copycat Game App from AppStore

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Recently, DeBund takes a big step forward in providing mobile internet legal services that You Yunting Team, on behalf of clients, succeeds in pulling a popular game from the AppStore by more than 10 lawyer’s letters.

The Developer of the complained game copied large amounts of background elements of a well-known game, including graphic design, plots, role names and geographic names, and also used the brand of the original game. The Developer also made a cartoon modeling on the game characters, and did a slight change to the game name, not exactly the same as the original game. The infringed benefits greatly from the complained game to millions of yuan every month.

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Why Did Using a Literal Meaning of “智慧背囊” be Judged Trademark Infringement?

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送给青少年的智慧背囊

(By You Yunting) Introduction to the Case:

Appellant (1st defendant at first instance): Qingdao Publishing House

Respondent (plaintiff at first instance): Shandong Shiji Tianhong Education Technology Co., Ltd (the “Tianhong Education”)

2nd Defendant at first instance: Beijing Readbuy Tianxia Information and Technology Co., Ltd (the “Readbuy”)

Court of first instance: Beijing Fengtai District People’s Court No.: (2014)丰民初字第03829号

Court of second instance: Beijing No.2 Intermediate People’s Court No.: (2014)二中民（知）终字第10356号

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Supreme Court Determined Trademark Non-infringement for Using Prior Enterprise Name with Good Faith

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(By Luo Yanjie) Both the enterprise name and the trademark distinguish the sources of goods or services, so that in practice they may conflict with each other. However, trademark, an exclusive right, has functions so as to prohibit others from using it as enterprise name. Under some circumstances, the enterprise name can coexist with the trademark. In today’s post, we would like to introduce such a case.

Introduction to the Case:

Retrial Applicant (Plaintiff at first instance, appellant at second instance): Yinchuan Buma Trading Co., Ltd (the “Yinchuan Buma Trading”)

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Litigation Against Defective Nikon D600 Cameras

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NIKON D600

(By You Yunting) On March 15, 2014, China CCTV exposed the quality problems of the Nikon D600 SLR Camera – it frequently produces black spots on photographs. In today’s post, we will introduce analysis about what legal problems might be encountered in litigation.

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How does Microsoft Settle its Problems of Software Copyright Infringement in China?

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microsoft

 (By You Yunting) With the serious intellectual property rights infringement in China, many foreign enterprises find it difficult to protect their rights. In today’s post, we will introduce a case detailing how Microsoft settles its problems of software copyright infringement in China.

Introduction to the Case:

Plaintiff: Microsoft

Defendant: Sailun Co., Ltd (SHA: 601058)

Court of first instance: Qingdao Intermediate People’s Court

No.: (2013)青知民初字第80号, (2013)青知民初字第81号, (2013)青知民初字第82号

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Trademark “Zhuomuniao”: Cancelled for Squatting Though It Has Been Put into Use

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(By Luo Yanjie) Abstract: when applying for a trademark, the trademark office will judge the similarity of the submitted trademark based on the International Classification of the Trademark Registration for Product and Service (the “Classification”), but the court does not use this only standard. Even if the court finds that the later trademark application to be similar with the earlier applications, and the trademark office approves the later applied trademark’s application, the earlier trademark holder shall have no right to demand the later user for any damages.

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Is RSS Output in Websites Kinda Fair Use in the Copyright Law?

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 (By You Yunting) A user on Zhihu.com asked some question about RSS

  1. Is it kinda fair use of RSS?
  2. Is it kinda fair use to transfer the excerpt context RSS to the full text RSS?
  3. Is it kinda fair use of Flipboard and similar applications’ excerpt context which do not use RSS?

In terms of the first question: ,Is it kinda fair use of RSS?

If a website supports full content RSS output, then it is actually the using on the license of the copyright holder instead of the fair use. While, where a website only supports excerpt context RSS and if a third party scraps the content into a full context RSS, it is infringing as it has used the content without any license.

Let’s first check the definition of RSS. We could find a clear definition in Wikipedia (http://en.wikipedia.org/wiki/Rss.): If a website placed the RSS file on its page, user could use a RSS feed to read the latest contents if he cannot open the content page. Based on the said character of RSS, in author’s opinion, RSS actually is a form of authorization from the site owners. If the website provides RSS file, it licenses users to read the content without visiting its website. According to the Copyright Law, Fair use means that under the specific circumstance we can use the content without the copyright’s holder’s permit and with payment of remuneration. The transliteration of a published work into Braiile and into minority nationality languages and free performance of a published work belong to fair use.

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Why Hainan Netcom Is Judged Infringement Liability for IP Addresses It Manages?

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(By Albert Chen) Hainan Netcom is an Internet Service Provider (“ISP”), but it also provides the content on the Internet. Even after the company failed todemonstrate that the IP address is used by a third party, and it fulfilled its obligation to check the content of the webpage, the company should still be liable for any corresponding infringement.

Case Summary:

Beijing Ciwen Filming Co., Ltd. (“Company C”) is the copyright holder of film Qi Jian (also known as “Seven Sword”) in mainland China. However, Company C discovered that Hainan Netcom hadbeen providing a link on its homepage (www.hai169.com) for its visitors to stream Qi Jian, without the authorization of Company C.As a result,in September of 2005, Company C filed a lawsuit against Hainan Netcom because it believed that Hainan Netcom had infringed upon its copyright.

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Why Hainan Netcom Is Judged Infringement Liability for IP Addresses It Manages?

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Abstract

(By Albert Chen) Hainan Netcom is an Internet Service Provider (“ISP”), but it also provides the content on the Internet. For the URL available on its web pages, the company should be obligated to take an even higher care with regards to its content. Even after the company fails to demonstrate that the IP address is used by a third party, and it has fulfilled its obligation to check the content of the webpage, the company should still be liable for any corresponding infringement.

Case Summary:

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How to Infer the Trade Secret Disclosure by Original Staffs in China?

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Abstract

(By Albert Chen) How to demonstrate one’s original employee has presented the trade secret gained during his/her service to the new employer, who thereafter makes benefit of it? As no direct evidences are available, in the current judicial practices, the principle of “similarity, contactable and excluding lawful origin” has been adopted for the case judging.

Case Summary:

Zhao once had her employment with Jiashan Shengguang Electronics Co., Ltd. (the “Company S”) from February 20th 2002 to March 19th 2006, and was in charge of the sales of the company. During her service there, Zhao, as the representative of Company S, concluded several transactions on vehicles lighting with Mexican DDB Company.

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Does Running Game Cheating Programs Violate the Criminal Law in the United States?

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—Day four of the visit to the United States

(By You Yunting) Beginning at the end of this March, on the invitation of the US government, the writer visited America with other Chinese legal experts with the goal of understanding its IPR system. On the fourth day, the writer visited the US Justice Department’s Bureau of Computer Crimes and IPR, the Department of Homeland Security’s IPR Coordination Center, and the American Chamber of Commerce. The following is the brief record of the writer’s experiences that day:

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