Author Archives: yytbest

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 that as the only standard. Even if the court finds that the later trademark application to be similar with the earlier applications, if 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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Should Chinese Enterprise Employees Who Have Not Signed An NDA Still Have A Duty to Not Disclose?

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Abstract

(By Albert Chen) In practice, we have seen numerous companies not signing any NDA or confidential clauses in employment contracts with their staff. But even so, taking into consideration confidentiality measures taken by a company, like making requirements for the handling of client information, and taking into consideration the confidential content of said information, one could easily conclude most companies intend to maintain nondisclosure of confidential information, and as a corollary staff and employees also maintain these efforts at nondisclosure.

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Is the Territorial Scope of a Famous Brand Limited to Chinese Territories?

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(By Luo Yanjie) Abstract: to determine whether two trademarks are similar to each other, the main consideration is determining the distinguishing features of the mark. However, to determine a famous or well-known product, such a determination is typically limited to Chinese territories, while on the other hand the reputation of a mark may involve consideration of overseas reputation.

Freeriding among Chinese manufacturers is unfortunately a very common and severe issue, and for most well known foreign companies, there may be situations in which they have not paid adequate attention to the Chinese market, and ergo have provided insufficient attention to policing its marks within the realm of IPR protection. As a result, the vast majority of foreign brands are helpless in facing rampant infringement.

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Would the Cancellation of the Applicant Lead to the Invalidity of Trademark Application in China?

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(By Luo Yanjie) Abstract: trademark application may take a long time. If the applicant encounters any change on its subject qualification, it shall handle the trademark transfer procedure as soon as possible, or otherwise the trademark could be cancelled.

It normally takes about one year from submitting the trademark application to the right granting. If during the application process it encounters any opposition, the time it takes for right granting adjudication would be much longer, possibly extending to several years. While during that period, the applicant may face a change on its subject qualification, and then will the trademark application be influenced in such a situation? In today’s post, you will see a typical case that we would like to share it with our readers.

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What Information Could Be Considered as Trade Secret in Tech Product Transaction in China?

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Abstract

(By Albert Chen) The tech product transaction involves the information of technology and business. Among such information, to judge which part could be considered as trademark secret, it shall be based upon Article 10 of the Anti Unfair Competition Law, which regulates that to determine the trade secret, the court shall evaluate “whether it is known to the public”, “benefiting”, “practicability” and “confidentiality”.

Case Summary

In 1998, Shanghai Zhenxing Aluminum Co., Ltd. (the “Zhengxing Company”) developed a manufacturing technology, which the company used to produce articles. This technology created by Zhenxing set the standard for the production of the article. Shanghai Huikai Aluminum Co., Ltd. (the “Huikai Company”) was founded on September 10th 2003, and afterwards carried out the business in the same product manufacturing as Zhenxing. As investigated, among the 70 clients of Huikai, 68 once transacted with Zhenxing. For these clients, most products they purchased from Huikaiu were almost the same as those they bought from Zhenxing. Furthermore, Qin and Pan, who are now working in Huikai, are former employees of Zhenxing. During their employment with Zhenxing, the company signed confidential article in the labor contract and also an independent confidential agreement.

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When Can a Trademark Be Applied for Following the Cancellation of A Similar Mark in China?

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(By Luo Yanjie) Article 46 of the Trademark Law has regulated how long one must wait until a cancelled or revoked trademark can be reapplied for, and yet due to the complexity of the application procedures, in the process of applying, an applicant could easily be confused or mistaken.

Case Summary

On January 13, 2003, Wang Huilan applied for the registration of a design trademark, numbered 3432984, specifically for Class 18, which includes both bags and briefcases. On July 1, 2004, the Trademark Office under the State Administration of Commerce and Industry (the “Trademark Office”) issued a Notice of Trademark Application Refusal, stating that the applied trademark was similar to already registered ones, and thereby Wang Huilan’s application was refused. Dissatisfied with this result, Wang filed a review application with the Trademark Review and Adjudication Board (the “Board”). In July 2007, the reference trademark judged in Wang’s application was cancelled. On August 22, 2007, the Board refused the review application. Ever more dissatisfied with this decision, Wang filed an administrative lawsuit.

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China Court’s Injunction Ruling: the Auction Company Shall Not Sell Qian Zhongshu and Yang Jiang’s Letter and Manuscripts

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(By You Yunting) As reported by Guangming News (note: the link is in Chinese), Beijing No.2 Intermediate People’s Court ruled in recent to demand the SUNGARI Auction Firm (the “SUNGARI”) not to carry out any conducts which would infringement the copyright contained in the letters written by Qian Zhongshu, Yang Jiang, Qian Yuan to Li Guoqiang. In the previous posts, we have put forward our opinions on the issue (post 1 and post 2).

According to the report, the court ruled that:

1. As the tools to communicate emotions, exchange ideas and discuss issues, the letter is generally the literal work finished by the writer basing on his/her independent thinking, and could be the work protected in the Copyright Law. Its copyright shall be owned by the author, who is namely the sender.

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How to Divide the Burden of Proof in Software Infringement Cases in China?

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(By Luo Yanjie) Abstract: In software infringement lawsuits, the plaintiff shall demonstrate itself as the rights holder of the software involved and the “substantial similarity” of the defendant’s software with its own. On the opposite side of the coin, once a defendant counters by claiming that no infringements have been made, it shall present relevant evidence; otherwise, it shall bear any disadvantages resulting from the failure to present proof of a lack of infringement. As for the case described in this essay, although it involves open source software, no definitive solution has yet been made to solve this particular legal program, to our disappointment.

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Could Yang Jiang Prevents the Auction Off of Qian Zhongshu’s Letters with Friends?

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(By You Yunting)At first, the author would like to make a digression statement: in the article “Would Tencent Take the Copyright of Contents Published by Users on WeChat?”, the author analyzed the misunderstanding arisen by the Tencent User Agreement, and after its publication, Tencent modified its agreement, by which the original article has been amended into “For the contents created by the user when using the service herein provided, its IPR shall be the property of the user or the related right holder.” The author deeply appreciates their quick acceptation of the advice.

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China’s Latest Laws and Regulations in May 2013

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I.  The State Administration of Foreign Exchange Has Issued various new regulations such as the Measures for the Administration of Foreign Exchange in Areas under Special Customs Supervision, Measures for the Administration of Registration of Foreign Debts and Measures for the Administration of Foreign Exchange of Direct Investment inside China by Foreign Investors.

In May 2013, the State Administration of Foreign Exchange issued a series of measures to regulate foreign exchange, including the Measures for the Administration of Foreign Exchange in Areas under Special Customs Supervision, Measures for the Administration of Registration of Foreign Debts, and Measures for the Administration of Foreign Exchange of Direct Investment within China by Foreign Investors. Meanwhile, the List of Regulations for the Administration of Foreign Exchange of Direct Investment within China to be Abolished and the Guidance of Operation of Business of Direct Investment within China were also issued at the same time. The new measures and regulations simplify and integrate the procedures related with foreign investment.

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Why Ultraman Movie‘s Copyright Holder Confronts Obstacle in Claiming His Right over Ultraman Doll?

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Abstract

(By Albert Chen) When the character in a film or television work satisfies the originality element, it could constitute as an independent work under the Copyright Law. But in that situation, the right holder of the film and television work could not necessarily claim the copyright over the character in it, and any infringement against the character shall be fought back by its designer or the licensee of the designer.

Case Summary

In 2009, China Shanghai Character License Administrative Corporation (“SCLA” hereinafter) gained the exclusive license from Tsuburaya Company for Ultraman Diga’s reproduction rights, distribution rights, rental and merchandising rights, and as well as the right to relicense the above rights within the territory of mainland China. After that, SCLA found that Hubei Xinyijia Supermarket Co., Ltd. ( “Xinyijia” hereinafter) has been selling out the Ultraman Diga toys, and thereafter SCLA filed their lawsuit in the court.

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A Dispute and Settlement involving Technology Investments

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Comments on a Shareholder’s Qualification Case Arising out of Technology Investments

(Steven Wang) Recently, the author has represented parties in a shareholder’s lawsuit, with the dispute centering on IPR investment. The court has already heard the case. The property value involved in the lawsuit totaled as high as RMB 300 million Yuan, and the laws applied in its hearing involved IPR law, contract law, and corporate law. The focus of the dispute referred to the patent, exclusive technology, contribution, revocation of shareholder qualification and the application of law when a number of conflicts arise among these different areas of the law.  These conflicts have caused a lot of discussion regarding these legal conflicts, and several conclusions have been reached regarding issues presented in the case.

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Is It Illegal to Auction off Qian Zhongshu and Yang Jiang’s Letter Manuscripts?

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(By You Yunting) Recently, we noticed that a Beijing-based auction company was interested in selling letters and manuscripts, including those from the couple Mr. Qian Zhongshu and Ms. Yang Jiang (it should be noted both Mr. Qian and Ms. Yang are noted scholars in China). In addition, we have also seen letters from their daughter Ms. Qianyuan to Li Guoqiang, the chief editor of Hong Kong based magazine Guang Jiao Jing, and a manuscript of Mr. Qian’s work. In the meantime, some of the letters’ content has been disclosed to the media; in fact, following these disclosures there was apparent dissatisfaction from Mr. Qian’s widow, Yang Jiang, alleging that these public disclosures were in fact a violation of one’s private communication, and any public disclosure, by the media or otherwise, would be considered improper.

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Why Ctrip’s Opponent Failed in Charging Its Advertisement’s Unfair Competition?

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Abstract

(By Albert Chen) For the company operation in China, whether its slogan would constitute the unfair competition, it shall first judge whether the parties involved are conducting the same or similar industries. After that, it shall verify whether the defendant has conducted the accused propaganda. The last and also is the most important, it shall confirm whether the prohibitive words or phrases have been adopted in the slogan, or whether its description has appeared to be exaggerated or not the truth, and the fit with the fact shall also be judged.

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Could User Information Be Considered Trade Secret in China?

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Abstract: trade secret must have three basic features: confidentiality, practicability, and security. Therefore, whether user information in a website could be considered as trade secret or not, it shall also be judged based on these three basic features.

(By Luo Yanjie) To a website, its’ user information is very important to its daily operation. To judge it from the legal protection perspective, it is generally protected as a trade secret. The case introduced in this article is a typical dispute on whether the user information could be considered a trade secret, and thereby could infringement be decided.

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