Category Archives: Competition law

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

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huawei

(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”)

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Anheuser-Busch InBev Used the Packaging of its Beer Bottle to Defeat against Chinese Copycatted Competitor

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budweiser

 (By You Yunting) Recently, we introduced that Zhejiang Xiyingmen Beer Company constituted trademark infringement through the use of recycled Budweiser’s beer bottle. In today’s post, we will introduce an unfair competition lawsuit where Zhejiang Xiyingmen Beer Company used the similar packaging and presentation with that of Budweiser-sponsored Harbin Beer.

Introduction to the Case:

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

Respondent (Plaintiff at the first instance):  Anheuser-Busch and Harbin Brewery Group (the “Harbin Brewery”)

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Revision of the Anti-unfair Competition Law Shall Strengthen Striking with Internet Underground Economy in China

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(By You Yunting) National People’s Congress, the China’s legislature, has authorized the State Administration of Industry and Commerce (the “SAIC”) to propose the revision draft of the  Anti-unfair Competition Law which has been implemented for more than twenty years in China. Recently, Shanghai Administration for Industry and Commerce held a meeting in making suggestions upon business operators and administrative authorities for the revision. In the meeting, I delivered a speech with the following presentation.

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Outcome of Unfair Competition Dispute between Tencent QQ and Qihoo 360

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3Q BATTLE

(By Luo Yanjie) Recently, there has been a widely tracked case as to whether 360’s QQ Guard engaged in practices which constituted unfair-competition against Tencent (3Q battle for short). The Supreme People’s Court has made a judgment affirming the initial judgment, deciding that 360’s QQ Guard engaged in unfair competition against Tencent. We have already introduced the case and discussed the comment on the original judgment. Even though the Supreme Court upheld the original judgment, the statement in the judgment of second instance, backed by the Supreme Court, impressed us with its deepened understanding of unfair competition in the era of internet. We will combine the judgment with analysis for our readers in the following article to help you understand the implications.

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NOVARTIS Awarded Injunctive Relief in Trade Secret Action in China

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(By You Yunting) According to reports, in February 2014, Shanghai No.1 Intermediate People’s Court approved plaintiff NOVARTIS’s application requesting the court to order an injunction ruling so as to protect its legal rights and interests in a trade secret litigation.

According to reports, NOVARTIS claimed that the defendant should not disclosure, use or allow another party to use the 879 documents on its trade secret lists that shall keep secret.

For intellectual property infringement, China’s supreme People’s Court may also set a temporary injunction on judicial interpretations of the Patent Law, Trademark Law and Copyright Law; we have previously provided posts discussing related systems in other areas of intellectual property law, such as patent preliminary injunction, copyright injunction and litigation injunction. With regard to trade secrets, however, no particular injunction is set on judicial interpretations of the Anti Fair Competition Law.

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Shall Silk Street Undertake Compensation Liability to LOUIS VUITTON MALLETIER for Trademark Infringement?

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silk street

(By Luo Yanjie) Abstract:  Market-managers should fulfill their duty to exercise reasonable care to cease trademark infringement. “Intentionally facilitating an infringement by another person or party of an exclusive right to use a registered trademark including through acts such as storage, transportation, postage, concealment and similar” shall be deemed as an infringement of the exclusive right to use a registered trademark.

Our website once introduced a post that the Name on the American Notorious List Could Also be the Well-known Trademark in China. Actually, Silk Street is not a company that sells fake goods, buta market consisting of many small shops. It is undeniable that the market of Silk Street was once listed alongside the Pirate Bay in the notorious market by USTR because it has sold too many fake products. Considering there are many fake products in Silk Street, the market manager shall be found liable. In today’s post, we would like to introduce and discuss a case where the market manager was found liable for its shops’ selling fake goods.

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Ctrip was Fined RMB 1.5 Million by China NDRC for Imposing Train Ticket Insurance

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ctrip

(By You Yunting) Recently it is at the peak passenger flow of Chinese Lunar Spring Festival in China. Billions of people would take train back hometown. Therefore, Chinese governments enhanced its suppression and punishment to illegal acts relevant to train tickets purchase. The day before yesterday, the Chinese National Development and Reform Commission published a notice (note: the link is in Chinese):

   Some companies, who sell airline tickets and train tickets but who had raised arbitrary fees and prices at the peak passenger flow, were got severe punishment. Tieyou.com under Ctrip.com was fined 1.5 million yuan due to its imposing an insurance fee counting from 10 to 20 yuan in selling train tickets. Now Tieyou. Com accepts such punishment and changes compulsory insurance purchase into an optional one.

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Why VICTORIA’S SECRET could not Prevent Selling a Parallel Imported Genuine Product Online in China?

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维多利亚的秘密

(By You Yunting) VICTORIA’S SECRET is the largest American retailer of lingerie whose products does not sell on the Internet in China. Considering the fact that a Shanghai-based company sold its products on the Internet in China and confessed that it was the unique designated general distributor in China, VICTORIA’S SECRET brought the Shanghai-based company to the court on the grounds of trademark infringement and unfair competition.

Introduction to the Case:

Plaintiff: VICTORIA”S SECRET STORES BRAND MANAGEMENT, INC．(the “VICTORIA’S SECRET”)

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Is Evasi0n 7.0 Illegal to Install Software for iOS Jailbreak Device?

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evad3rs

(By You Yunting) Recently, Evad3rs released a new jailbreak tool called Evasi0n7.0 for Apple’s iOS 7 with Chinese name “太极7”. Due to Evasi0n 7.0 forcing Chinese jailbreak users to the default installation of TaiG app store in China, all public opinions on domestic Internet websites are criticism-oriented and most reports stated that Evasi0n 7.0 was a counterfeit software tool.

The principal Pod2g of Evad3rs team today expressed his opinions on Twitter that Evad3rs have decided to remotely disable the default installation of TaiG app store in China for further investigations on the piracy issue. As an intellectual property lawyer, I paid great attention to this issue. I hope this post has broached several legal problems as follows.

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Why did the Courts Determine Google Receive a Prior Right in its Pre-approved China Enterprise Name?

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(By You Yunting and Wang Ting) Abstract: Generally, before registration, an enterprise never receives corresponding protection for its enterprise name. However, in relation to its pre-approved enterprise name before registration, the pre-approved enterprise name shall be provided appropriate protection.

Today, we will introduce a typical case touching upon this issue, specifically, the process of approving an enterprise name under the establishment of a foreign-invested company. In this case, Google successfully defended itself against a Chinese enterprise, and finally won rights in the Chinese transliteration of its name, written in Chinese as“谷歌” and pronounced “gu-ge”.

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How to Determine the Competent Jurisdiction for Online Infringement?

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(By Luo Yanjie) Abstract: The Supreme People’s Court’s decision concerning jurisdiction in terms of determining the domicile of a transit server seems rather amiss against the principle of the doctrine of the plaintiff accommodating the defendant. The place where a plaintiff discovers infringing content should be the final choice of jurisdiction in cases involving network and online infringement. Unfortunately, laws and judicial interpretations in our country do not currently make a distinction between the right of goodwill and a legal person’s right of reputation.

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Essential points on Writing Noncompetition Clauses In a China Labor Contract

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(By You Yunting) In today’s post, our website would like to introduce some essential points in writing noncompetition clauses in a labor contract in accordance with relevant Chinese laws and regulations. Pursuant to the Labor Law, the Labor Contract Law and related laws and regulations, combined with the specific conditions of employing units, when writing noncompetition clauses or agreements, we will pay particular attention to the following points:

I. How to determine the scope of the noncompetition clauses?

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China’s Telecom Anti-Monopoly: What Troubles is the China National Development and Reform Commission Meeting?

TM截图未命名

(By You Yunting) According to media reports, the officer in charge of the China National Development and Reform Commission (the “NDRC”) in a recent statement was quoted as saying that the NDRC had always, and would continue to supervise the monopoly issues in relation to broadband access provided by China Telecom and China Unicom, and that the NDRC suffered from various reactions when it announced its investigation into China Telecom and China Unicom at the end of 2011. He also said that currently the 10G of bandwidth provided by China Telecom and China Unicom had been extended to 100G, and that it would still urge China Telecom and China Unicom to rectify this issue within a period of three to five years.

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Why QQ Pinyin suffered due to Unfair Competition from Sogou Pinyin?

TM截图未命名

(By You Yunting) Abstract: Although the Advertising Law stipulates that advertisements may not make excessive use of superlatives in advertising products and services, a business operator using absolutist phrasing and imagery alone is insufficient to find one guilty of unfair competition. Although it is true that many methods of advertising on the Internet are not yet clearly defined in the laws, if a company’s methods would be considered to go beyond those of a normal business practice, it can be assured that those operators may face the possibility of lawsuits and possible criminal actions.

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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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