Category Archives: Competition law

Analysis on the Anti-monopoly Dispute Filed by Qihoo against Tencent, III

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(By Luo Yanjie) In our previous two posts, we introduced the reader to the facts involved in the monopoly dispute between Qihoo and Tencent, as well as the Court’s decision. Today, we continue that discussion of the case and would like to share our opinions on it.

Lawyer’s comments and analysis

It is not difficult to find from the above judgement that Qihoo lost the lawsuit mainly because the court in the first instance denied its allegation that Tencent held a dominant position in the market; ithe court’s decision was primarily based on a broad definition of “relevant market” in regard to Tencent’s QQ instant messaging software. The following is our analysis on the issue:

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Analysis on the Anti-monopoly Dispute Filed by Qihoo against Tencent, II

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Today we will continue our introduction of the opinions of the Guangdong High People’s Court, the first instance court in the anti-monopoly dispute, concerning the facts in the case as well as its judgment.

II. About the dominant position of the defendant in the relevant market

As held by the court in the first instance, the plaintiff had a much narrower definition of the relevant product market and regional market, and its calculation for the market share was thus not accurate.Especially taking into account that the product scope shown was the plaintiff’s most important evidence; more importantly, that the report from the Ai Rui research institution presented data contrasting with the scope determined by the court.

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Analysis of the the Anti-monopoly Case Filed by 360 Against Tencent, I

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(By Luo Yanjie) Starting today, we will have three posts introducing the decision in China’s most closely followed anti-monopoly case. Today’s post will first introduce the facts of the case. Qihoo 360 Technology Co. Ltd. (NYSE: QIHU) (“Qihoo”) is a company whose primary business is security software. In October of 2010, Qihoo released software named “360 Privacy Protector,” which was claimed to prevent QQ, the instant messenger of Tencent Holdings Limited (SEHK: 700) (“Tencent”), from uploading the user’s personal information. Tencent issued a notice to its users, demanding that users who installed QQ not install any of Qihoo’s software. At the same time it took technical steps to check the computers for any Qihoo’s software. If any Qihoo software was found, the user was not allowed to sign in to QQ. This led to a large dispute on the Internet in China. After the Ministry of Industry and Information Technology (the “MIIT”) intervened, Qihoo recalled its 360 Privacy Protector, and Tencent revoked its regulation prohibiting QQ users from using Qihoo.

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Despite the Record-Making CNY 1, 000, 000 Compensation for Yao Ming, Infringer Did Not Lose the Lawsuit

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Among the Ten IPR Cases issued by the Supreme People’s Court in 2012, one of the more interesting ones involves a case of portrait infringement involving international basketball star Yao Ming’s likeness. Despite the court’s understanding that infringement had been found for the unlicensed use of Yao’s portrait and name, granting compensation as high as RMB 1 million Yuan, such an amount is far less than Yao’s typical payment for participating in ads and other marketing materials. For this reason, the court’s decision to grant such an amount is simply inadequate to prevent further acts of infringement involving a well-known person’s name and likeness.

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Why China Supreme Court Agree with Resigned Employees Establishing Competing Businesses?

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(By Luo Yanjie) Abstract: The experience an employee gains throughout the course of his employment is regarded as a personal right under the law, and even though an employer may spend a great deal of time and money cultivating the employee and improving their skill set, if there was no noncompete agreement entered into prior to this, the employer will usually not be able to impede or stop a resigned employee from starting another business to compete with his or her previous employer.

For most companies, talent is considered its most valuable asset. With the development of the economy, market competition grows ever more fierce, and many employers find themselves troubled at the prospect of a number of employees “job hopping” to competitors, bringing the benefit of the employers’ training, experience and expertise with them. The case introduced herein is a typical case in which the employee was not bound by a noncompete, nondisclosure, or similar agreement. Facing stiff competition, many employers file suit on the basis of unfair competition, and yet, due to lacking substantial evidence, many employers end up failing in bringing a successful case.

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China Supreme Court’s Opinions on the Standard to Judge Noted Product Decoration？

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Abstract

(By Albert Chen) Despite trademark is the important mark to indicate the origin of the product in its circulation, to decide whether the package of a noted product could constitute the special decoration, the trademark is not the absolute cause for the consideration. The reputation of the product shall be judged from the sales time, area, amount and object, and on the other hand, the fundamental condition for to decide the special decoration is whether it is distinctive.

Case Introduction

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Why China Companies Licensed by Overseas Right Holder Would Still Be Found Infringement?

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(By Luo Yanjie) Abstract: Whether the confusion has been made among the consumers is the basis on which to judge the unfair competition liability. In recent two years, some China companies have engaged themselves in the fake licensing as first to establish a company outside mainland China in Hong Kong, with the same name like those reputed brands and then gain the benefits from the free riding on it. But once it has been judged confusion among the consumer, even it is licensed through the legal procedure, it shall also take the infringement liability.

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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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Does 360’ s QQ Guard Constitute Unfair Competition against Tencent? Part II

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 (By Luo Yanjie) Today, we would give our opinions on 360’s unfair competition ruling.

Lawyer’s Comments:

The case is a part of the “3Q battle”, and has garnered wide attention in the society. Both parties in the case have submitted large amounts of evidences to support their claims. As showed in the judgment, the case seems to be very complicated. Moreover, because 360 provided the service for free, 360’s lose in the case has gained the sympathy of Internet users. However, from a legal standpoint, this case is not difficult. The ruling against 360 was proper for the following reasons:

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Does 360’ s QQ Guard Constitute Unfair Competition against Tencent? Part I

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(By Luo Yanjie) Abstract: Although online ads or pop-up ads may make you feel uncomfortable, that is a profit model utilized by free software like Tencent’s QQ, the popular online messaging software. But, when the 360 Guard software removed QQ’s ads, despite that being deemed reasonable in the eyes of some netizens, it would no doubt damage Tencent’s legal rights as QQ’s developer and operator. The author believes that it was proper for the court to determine that 360 had engaged in unfair competition practices. Today we’d like to introduce a bit about this case to our readers, beginning with today’s post and extending into tomorrow’s.  

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Whether using the Name of Another’s Work Constitutes Copyright Infringement or Unfair Competition

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Abstract: The Copyright Law and the Anti Unfair Competition Law supplement each other, but they also compete with each other. In the case introduced in this article, the first instance court denied the copyright infringement claim, but confirmed liability under the principles of unfair competition. This seems to be logically contradictory, and the court in the second instance corrected this glaring mistake.

(By Luo Yanjie Unfair competition refers to an operator’s misconduct that violates principles of fairness, justice, and good faith; it is also considered any behavior that violates widely adopted commercial ethics. As for copyright, as a kind of exclusive right, it mainly focuses on granting the right holder a monopolistic right in conformance with the law, and thereby grants the right holder monopoly rights as well as a competitive advantage through the exploitation of his/her own intellectual works. In this particular aspect, it shares a similar purpose with the Anti Unfair Competition Law. For this reason, the Copyright Law and the Anti Unfair Competition Law supplement each other, yet on the other hand they also compete with each other.

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Why No Solution to “Box Office Stealing” under the Current Laws in China?

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(By You Yunting) Abstract: the author was interviewed: is “box office stealing” mainly a result of a defect in GAPP’s legislature (the General Administration of Press and Publication) and SARFT (State Administration of Radio, Film and Television)? For this issue, the author’s opinion is that the administration and governance over the film industry is the real reason this problem arises, because there is really no way this would happen otherwise, and its unlikely those right holders would try to protect their rights, making the aggressive parties even more aggressive. Thus we would only see the bad drives out the good.

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The Shanghai Branch of CIETAC Changed Its Name

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Today, we noticed an announcement published on the website of the Shanghai Branch of the China International Economic and Trade Arbitration Commission stating that it has changed its name to the Shanghai International Economic and Trade Arbitration Commission (the “Shanghai Commission”). At the same time, it will begin to use the name of Shanghai International Arbitration Center. Additionally, starting on May 1, 2013, the Shanghai Commission will begin using new Arbitration Rules and a new arbitrator name list.

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Dissatisfied with the First Instance Judgment, Qihoo Has Appealed in Its Anti-Monopoly Lawsuit Against Tencent

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Our website has analyzed the case filed by Qihoo (NYSE: QIHU) against Tencent (SEHK: 700) stating that Tencent’s abuse of market dominance constituted a monopoly. The first instance of the case was decided by the Guangdong High People’s Court, which denied all of Qihoo’s claims. As recently disclosed by Qihoo, the company has appealed to the Supreme People’s Court, demanding either revocation of the first instance judgment and remand for the retrial, or amendment of the first instance legal judgment based on the facts such that all of Qihoo’s claims are supported.

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Analysis on the Anti-monopoly Dispute Filed by Qihoo against Tencent, III

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(By Luo Yanjie) In our previous two posts, we introduced the reader to the facts involved in the monopoly dispute between Qihoo and Tencent, as well as the Court’s decision. Today, we continue that discussion of the case and would like to share our opinions on it.

Lawyer’s comments and analysis

It is not difficult to find from the above judgment that Qihoo lost the lawsuit mainly because the court in the first instance denied its allegation that Tencent held a dominant position in the market; in addition, it’s evidence that the court’s decision was primarily based on a broad definition of “relevant market” in regard to Tencent’s QQ instant messaging software. The following is our analysis on the issue:

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