Introduction to Protection of New Varieties of Plants in China

(By You Yunting)Introduction to the Case:

Appellant (Defendant at first instance): Jiangsu Xunong Seeds Science and Technology Co., Ltd (the “Xunong”)

Respondent (Plaintiff at first instance): Tianjin Tianlong Seeds Science and Technology Co., Ltd (the “Tianlong”)

Court of first instance: Nanjing City Intermediate People’s Court  No.: (2009)宁民三初字第63号

Court of second instance: Jiangsu Province Higher People’s Court  No.: (2011)苏知民终字第0194号

On November 10, 2000, a new three-crossbreed hybrid japonica rice named “9优418”, jointly cultivated by the Liaoning Rice Research Institute (the “LRRI”) and the Xuzhou Academy of Agricultural Sciences (the “AAS”), was approved by the National Crop Variety Approval Committee of China (the “NAVAC”).


Beijing Intermediate Court Published Its First Preservation Injunction Against Baidu


(By You Yunting) The Chinese internet industry is a fiercely competitive one in which many large internet companies have used lawsuits to gain a competitive advantage. Lawyers are engaged by internet companies to fight against their competitors using any new laws and regulations that might offer opportunity. In the most recent unfair competition litigation Qihoo 360 v. Baidu, Qihoo 360 applied for a litigation injunction to prevent Baidu engaging in infringement. On May 23, 2014, the Beijing No.1 Intermediate People’s Court issued its first litigation injunction since the new Civil Procedure Law came into effect.


The Anti-Monopoly Judgment’s Digest of Huawei vs. InterDigital of China Courts


(By You Yunting) The anti-monopoly litigation of Huawei v. InterDigital caused the attention of intellectual property bound in China. Huawei had filed litigations in China accusing InterDigital of discrimination in patent licensing. Recently, Guangdong Higher People’s Court published its rulings in Huawei v. InterDigital. In today’s post, we will present the judgment of this case and address our comments in the following.

Introduction to the Case:

Appellant (Plaintiff in the first instance): Huawei Technologies Co., Ltd (the “Huawei”)


Alert: SoundCloud, Ubuntu and Lots of Famous Brands are being Rush-Registered as Trademarks in China !

(By You Yunting) Recently, a news article sparked concern that the Qihu Investment Co., Ltd (a similar Chinese name to Qihoo 360 Technology Co., Ltd) had rushed-registered hundreds of trademarks belonging to internet venture companies. Even though Qihoo 360 Technology Co., Ltd later clarified that it had nothing with the Qihu Investment Co., Ltd, the news still attracted attention from both companies and lawyers.

Many famous companies’ brands, such as Ubuntu, Hotel Tonight and SoundCloud were being rush-registered as trademarks and some have even entered into the process of announcement by the Chinese Trademark Office after a preliminary examination and within three months of the date of the publication. The overseas companies may lose the exclusive right of trademark in China unless they file an opposition against these rush-registrations. Worse, they will not be able to use these brands they have created when entering the Chinese market for a significant length of time. In today’s post, we would like to address how venture companies should resolve trademark squatting.


Does QVOD Business Model Touch China’s Warning line of Government Regulatory?


(By You Yunting) Abstract:  The nature of “QVOD Business Model” is that both large and small-sized companies are to jointly infringe online copyrights. Under the facts that large companies provided technology and commerce and then small companies engaged in infringing works, such cooperation set up an environment of competitive advantages resulting from weak regulatory. This cooperation’s true cleverness comes from the deepen understanding of safe harbor rules and the Internet’s globalization and anonymity. If “QVOD Business Model” is continuous operating, such model may be cumulative legal risks and thus is likely that a criminal investigation can make an end of “QVOD Business Model”.


How China Court Judges the Conduct of Using a Trademark as Enterprise Name?


(By Luo Yanjie) In practice, for the purpose of free-riding well-known brands, many operators often use another’s trademarks as their enterprise name to confuse consumers. As such, these conducts still constitute trademark infringement. In today’s post, we will introduce a typical case concerning that using another’s trademarks as enterprise names may constitute trademark infringement.

 Introduction to the Case:

Plaintiff: Shanghai Jinsu Industrial Co., Ltd (the “Jinsu Co., Ltd”)

1st Defendant: Miergu Pipe Industrial Company (liter translated from “美尔固管业公司”)


How Venture Companies Should Deal with Trademark Squatting?

(By You Yunting) Recently, a news article sparked concern that the Qihu Investment Company (a similar Chinese name to Qihoo 360 Technology Co., Ltd) had rushed-registered hundreds of trademarks belonging to internet venture companies. Even though Qihoo 360 Technology Co., Ltd later clarified that it had nothing with the Qihu Investment Company, the news still attracted attention from both venture companies and lawyers. In today’s post, we would like to address how venture companies should resolve trademark squatting.


Does Using a Trademark with Common Meaning Constitute Trademark Infringement in China?


(By Luo Yanjie) According to Chinese legislation, a mark which has a common meaning in normal ways may be registered as a trademark where it has acquired distinctiveness through use and is readily distinguishable. If being registered, the mark with a common meaning would be protected under the Trademark Law. However, in practice, a competitor may use the trademark against the exclusive right holder, with a defense that the trademark has common meaning. Today, we will introduce a successful case where the court is in favor of the exclusive right holder of the trademark.


Intellectual Property Analysis on the Dilemma of Yunnan Baiyao


(By You Yunting)Abstract: The Yunnan Baiyao Group Co., Ltd had used its good historical reputation, its customer’s curiosity about its ingredients and the protection afforded to a state-secret recipe to make large profits. However, with the proliferation of awareness of an individual’s rights and the gradual strengthening of democratic consciousness, its enterprise institutions and culture are eroding consumer confidence in the brand and ruining its business reputation in the eyes of consumers.


Symantec Corporation Uses both Criminal and Civil Methods to Defeat Piracy in China


    (By You Yunting) It is well known that China is facing a serious problem over piracy. When claiming for his enforcement over cases suspected to involve criminal offences, the right holders often report to the Police attempting the use of criminal laws to strike with piracy. Furthermore, in accordance with Chinese laws and regulations, upon the completion of criminal proceeding, the party against the piracy may, on the basis of criminal judgment paper, file civil lawsuits against the pirated to receive compensation. Today we will introduce a case concerning Symantec Corporation’s enforcement against the pirated party, where Symantec Corporation instituted lawsuits against the pirated, as well as the companies which contributed to make pirated CDs and print the envelopes of the pirated software. As such, its lawsuits and claims are being backed by Shanghai courts.


Competitor Using Recycled Budweiser’s Bottles Constituted Trademark Infringement


(By You Yunting) Our website has previously  introduced the case where ABlnbev (China) Sales Co., Ltd filed a lawsuit against its competitor, who was unauthorized to use the bottles with the trademarks “Budweiser” and “ABlnbev”. Recently, the Shanghai Higher People’s Court made a final judgment in favor of ABlnbev (China) Sales Co., Ltd.

Introduction to the Case:

Appellant: (Defendant at the first instance): Xiyingmen Beer Company (the “Company Z”)

Respondent: (Plaintiff at the first instance): ABlnbev (China) Sales Co., Ltd


What kinds of Copyright Shall Television Watch-back Services Be?


(By You Yunting) The U.S-based TiVo Inc. developed and marketed its TiVo, a digital video recorder (DVR), which can provide programs and services like on-demand and watch-back for its users. Similar to TiVo, Chinese cable operators and cable television stations provides similar services for its programs, shows and services. This means that users who miss the program can choose an on-demand program on the television. However, cable television stations are generally purchasing the right of broadcasting for the program, without the right of communication of information via a network. This purchase is at risk of copyright infringement. In a previous post Which Copyright Should an Internet TV Operator Purchase?, we discussed the difference between the right of broadcasting and the right of communication of information via network. Today we will introduce such a typical case in the following.


How Samsung Obtained Its Camera Trademark Under Class 9 Through Litigation in China


(By You Yunting) Initially in its application, SAMSUNG failed to obtain its Chinese-transliterated trademark for cameras by virtue of a prior-registered trademark under Class 9 for screen products.


Lessons to Be Learned from Apple Losing Their Apple Trademark for a Game Console in China


(By You Yunting) In the end of 2013, the Beijing Higher People’s Court rejected Apple Inc.’s trademark opposition towards “苹果” trademark (read “Pingguo” in Chinese and referring to “Apple” in English) under Class 28 for game console against Zhongshan Readboy Electronics Co., Ltd. Thereafter, Apple Inc. has gone through 4 procedures, including the Trademark Office’s opposition proceeding, TRAB’s review procedure and two administrative actions and ultimately lost the “苹果” trademark under Class 28 for game console. The following are abstracts from the judgment of the final trial and our comments.


Why Court Decision Exempts Wal-Mart From liabilities of Trademark Infringement?


(By Luo Yanjie) Abstract: In the event that a party unknowingly sells goods that infringe upon another party’s exclusive right to use a registered trademark but can prove that it has obtained the goods lawfully and is able to identify the supplier shall not be held liable for damages. In a case that a trademark holder separately sues sellers, despite no laws requesting the manufacturers to join in the lawsuit, for the purpose of preventing contradictory judgment, the courts could notify him or her requesting joinder. It is the manufacturers that could decide whether acting as a third party to join the lawsuit.