Tag Archives: trademark right

Why Only an Interested Party may File an Opposition to a Trademark Application in China

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(By Luo Yanjie) Abstract: The new Trademark Law stipulates that only the interested party may file an opposition to a trademark application based on relevant grounds. Previous opposition proceedings were so complicated that the new Trademark Law removes the trademark opposition review proceedings completely, with the exception of the review period of twelve months.

Our Trademark Law has been revised many times since its inception in 1982. In August 2013, the National People’s Congress approved the latest revised Trademark Law. In today’s post, we will analyze and compare the two Trademark Laws from the standpoint of the revised opposition system.

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China’s Courts won’t Prohibit a Trademark Squatting with Post-Approval

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(By Luo Yanjie) Abstract: “Agent” in conduct of Agent’s preemptive registration refers to “trademark agents, representatives or other agents and representatives based on sales and agency relationship such as distribution and agency”. Commodities that no agent or representative may apply for registration include commodities same as the commodities where the trademarks of the principals or the persons represented are attached to as well as other similar commodities. Considering trademark is a private right, judicial institutions shall fully respect parties’ autonomy.

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Infringing Goods shall not be Determined as Well-Known Goods

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Abstract: Under the circumstances of prior trademark rights on the same goods, determining similar trade name used by another person as the special name belonging to a well-known commodity shall be limited. Furthermore, the courts shall necessarily review the ownership of prior trademark as the fact of a case.

(By Luo Yanjie) The special name belonging to a well-known commodity is a protective approach for an unregistered trademark. In particular, the special name shall have no severability itself; otherwise, it shall be limited. In today’s post, we will introduce a case with this element with the following analysis:

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Why Couldn’t the Trademark “Bond” Be Applied to Contraceptives?

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(By Albert Chen) The Beijing High People’s Court (the “Beijing High Court”) established the “merchandising right” in a 2011 judgment on an administrative dispute between the Trademark Adjudication and Review Board (the “Board”) and DANJAQ, LLC (the “DANJAQ”). That was the first judicial definition of the right, and the first time it was included as a protected “prior right.”

In today’s post, we would like to describe the facts in the case, and introduce to our readers the opinions of Beijing High Court and our comments on the matter.

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Why Couldn’t the Trademark “Bond” Be Applied to Contraceptives?

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(By Albert Chen) The Beijing High People’s Court (the “Beijing High Court”) established the “merchandising right” in a 2011 judgment on an administrative dispute between the Trademark Adjudication and Review Board (the “Board”) and DANJAQ, LLC (the “DANJAQ”). That was the first judicial definition of the right, and the first time it was included as a protected “first right.” The decision can be considered a clarification of the “merchandising right” by the judicial organs as well as broadening the scope of first rights.

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Is OEM the Safe Harbor for Trademark Infringement in China?

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(By Albert Chen) Whether original equipment manufacturing (OEM) can lead to trademark infringement has been long argued. The opinions on it may vary among the judicial organs in various regions and between the judicial department and various administrative departments. A Shanghai court once confirmed that a processing party should not assume infringement liability in the case Shenda vs. Jolida. Following this decision, some began to advocate the idea that OEMs could be considered a safe harbor in the seas of trademark infringement. Can that point of view reasonably be established in China? In today’s post, we would like to introduce you to Chinese cases and popular opinions in judicial circles concerning OEMs and trademark infringement.

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How to Decide Infringement When Conflict between Trademark and Trade Name in China?

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By Luo Yanjie

As two different concepts in law, trademark plays the role as to distinguish the origin of the product or services, and the trade name is the literal expression to indicate different companies. But in the daily operation, we may see the confusion between these two concepts, and the trade name may also be used as kind of mark in business. Naturally, we see many companies choose to register their name as the trademark. Despite the similar function of them, the trademark and trade name are verified by different administrations (the mark is subject to the administration of trademark office, and the trade name is ruled by local administration of industry and commerce), but that also triggers the conflict between two objects. In today’s post, we would like to analyze the conflict occurred when trade name registered prior to the trademark by different subjects.

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Encyclopedia vs Apple: Why AppStore Could Not Ship into Safe Harbor?

By You Yunting

As reported by media, Beijing No.2 Intermediate People’s Court made the first instance decision for infringement claims made by Encyclopedia of China Publishing House (Encyclopedia) agains Apple’s AppStore. With the decision, Apple shall compensate Encyclopedia RMB 520, 000 yuan and immediately cease the infringement. In current, no intention to appeal has been expressed by Apple.

Case: Encyclopedia discovered Apple’s user could purchase and download apps of its copyrighted works, which could be read in iPhone and iPad. With the anger of the infringement, Encyclopedia filed a lawsuit against Apple, who counter-stroke that the actuall operator of AppStore is a company registered in Luxembourg, not Apple. And Apple provided no services in the process of software uploading, and therefore Apple shall be with no engagement in the dispute.

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App Store: Duty Free for Safe Harbor Principle in China?

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By You Yunting

In March of 2012, 22 Chinese authors filed a lawsuit against Apple in Beijing No.2 Intermediate People’s Court and claimed  compensation of more than ten million. In the case, the plaintiffs stated that their works have been adapted into apps used on iPhone, iPad and iPod Touch, free of being charged at App Store. The case is the first lawsuit with the operator of App Store being the defendants, and will produce a prominent influence on the newly developed online store, which was launched in 2008 and with more than 360 million users . Now the litigation is under the spotlight, and this essay is focusing on the legal status of Apple and the defects in the process complaints of the store.

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