Competition law Archives - Page 6 of 8 - Bridge IP Law Commentary

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

Posted on April 11, 2013 by yytbest

(By Luo Yanjie) 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 the plaintiff calculated the market share based on the relevant product and regional market as it advocated, and that could not truly reflect the share and position of the defendant in the relevant market objectively. 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.

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

Posted on April 10, 2013 by yytbest

(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 was very dissatisfied with this claim, and believed that Qihoo actually intended to steal QQ users’ information and then replace QQ with its own product. For this reason, 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 of its users to see whether they had installed 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.

How Does the Federal Trade Commission Decide Whether Intellectual Property Licenses Violate Anti-trust Laws?

Posted on April 9, 2013 by yytbest

Day Five of the US Visit II

In late March, the author had the opportunity to make a journey to the United States at the invitation of the U.S. government in order to better understand how the US intellectual system operates. On the fifth day of the visit, the author went to the Federal Trade Commission (the “FTC”), and the following is a brief record of his visit there.

The FTC is the administration in charge of investigating and taking action against unfair competition and anti trust in the US. During the visit, FTC officials showed us a map showing that as of 1900, only the US and Canada had enacted competition laws, including unfair competition law and the anti trust law. Later by 1960, Sweden, France, and Japan passed legislation on competition. By 1980, many countries in Europe and South America passed competition laws, as well as Australia, India, Thailand, and South Africa. By 2012, almost all states of the world had laws in that field, except for a few African countries.

How to Determine the Recognition Level of Products in Unfair Competition Disputes in China, II

Posted on March 19, 2013 by yytbest

Comments on the unfair competition case between Ferrero and Jinsha

Today, we will share our opinions on the following issues related to the case introduced in yesterday’s post: the scope of name recognition, whether a product’s packaging can refer to the products of others, and protection over product packaging through the use of trademarks.

Lawyer comments:

The interpretations of the judges in the first and second instance courts and the review court help us better understand the following issues involved in unfair competition cases:

How to Determine the Recognition Level of Products in Unfair Competition Disputes in China, I

Posted on March 18, 2013 by yytbest

Comments on the unfair competition case between Ferrero and Jinsha

Today and tomorrow, we will analyze several issues raised by the Ferrero and Jinsha unfair competition
case. Namely: the scope of name recognition, whether a product’s packaging can refer to the products of others, and protection over product packaging through trademark protection. Today, we will briefly introduce the case facts and the opinions held by the deciding courts.

Case summary:

Ferrero Company registered the trademark “FERRERO ROCHER” in China in 1986 and its FERRERO ROCHER chocolate (“Ferrero Chocolate”) entered the Chinese market in 1988. The Ferrero Chocolate packaging has the following features: 1) gold, ball-shaped foil wrapping; 2) the “FERRERO ROCHER” trademark printed as a decoration within an oval on the gold foil; 3) each chocolate wrapped in gold foil is padded with additional brown paper; 4) outer packaging is made of transparent plastic, so that the inner gold-wrapped balls can be seen from the outside; and 5) a red ribbon-like decoration printed on the trademark of the chocolate.

China’s New Civil Procedure Law behind the Application for an Injunction of Guangzhou Pharmaceutical Company

Posted on March 1, 2013 by yytbest

(By Albert Chen) Guangzhou Pharmaceutical Company’s lawsuit (GPC) against Jia Duo Bao (JDB) for false advertising was heard in January of this year at the Guangzhou Intermediate People’s Court. In addition to the arguments held by each party regarding the false advertising, they also disputed whether an injunction could be issued as applied to GPC. Ultimately, the Guangzhou Intermediate People’s Court approved the injunction, basing its decision on findings that JDB had exploited GPC through false advertising, thereby confusing and misleading consumers. The Court then prohibited JDB from making advertisements with claims that GPC’s vitamin drink “Wang Lao Ji” had changed its name to JDB, or any other similar slogans indicating that somehow GPC’s Wang Lao Ji product was the same as JDB’s as the result of a name change.

Do All Minimum Price Limits Violate the Anti-trust Law in China?

Posted on February 26, 2013 by yytbest

(By You Yunting) In the post, “The Legal Sense of the Punishment over the Vertical Monopoly of Mao Tai and Wu Liang Ye By NDRC,” which was posted several days ago, we described China’s first case on vertical pricing agreements (a vertical monopoly contract refers to a contract a monopolistic business signs with its business partner, which limits pricing or contains other monopolistic content). The application of Article 14 of the Anti Monopoly Law adopted by the court in that case was different from the application adopted by the China National Development and Reform Committee. We have found and studied the written judgment for that case, which is now in its second instance. Although according to the Civil Procedure Law, the judgment of the first instance has not yet come into effect due to the appeal, some of the main points of the decision are worth looking at. Therefore, we would like to share our opinions on it with our subscribers.

Full Text of the Anti-trust Punishment Ordered by China NDRC against MaoTai and WuLiangYe Vertical Pricing Monopoly

Posted on February 26, 2013 by yytbest

The Price Bureaus under the Provincial Development and Reform Commissions in Sichuan Province and Guizhou Province published their orders for punishment against the vertical pricing monopoly by MaoTai and WuLiangYe on their official websites. By the orders, the two distilleries were fined totaled RMB 449 million yuan (approximately $ 72, 064, 500 dollar). The following is our translation of the full text of the administrative punishments already ordered.

The punishment ordered by Sichuan Provincial Development and Reform Commission:

Would NDRC’s Vertical Pricing Monopoly Fine against MaoTai and WuLiangYe Have Influences on Other China Companies?

Posted on February 25, 2013 by yytbest

(By You Yunting) Over the past few days, the writer shared two essays concerning the administrative punishment ordered against Mao Tai Company and Wu Liang Ye Company, the top distilleries in China, over the accusation that they violated the Anti Monopoly Law by concluding monopoly agreements restricting or fixing retail prices (the “monopoly agreements”) with their dealers. The writer has received heated comments and arguments from the subscribers and followers of his Weibo and Blog. Many of these comments support the punishment, but some friends have expressed concerns over the issue. Today, the writer will share his opinions on whether the punishment will influence the normal commercial order.

How MaoTai and Wu Liang Ye Would Defend Against Vertical Pricing Monopoly Fines ordered by China NDRC?

Posted on February 25, 2013 by yytbest

(By You Yunting) Abstract: Both Mao Tai and Wu Liang Ye can rely on one of the seven situations in Article 15 of the Anti Monopoly Law for their defense. But, that defense will not be easy because it requires evidence that the relevant agreements will not limit market competitors and that consumers can share the interests produced by the agreements.

In yesterday’s post, the writer analyzed the legal meaning of the punishment ordered by the National Development and Reform Commission (“NDRC”) against two top Chinese distilleries, Mao Tai and Wu Liang Ye. Today’s post will go one step further to describe the way for Mao Tai and Wu Liang Ye can protect their own interests.

The Legal Sense of the Punishment over the Vertical Monopoly of Mao Tai and Wu Liang Ye By NDRC

Posted on February 21, 2013 by yytbest

(You Yunting) According to the report, Mao Tai Company and Wu Liang Ye Company, both are the top distilleries in China, would be ordered the penalty of 1% of their annual sales in 2012, approximately RMB 449 million yuan, by the National Development and Reform Commission (the “NDRC”) for their restricting or fixing the retail price of their downstream dealers. You might have noticed “would be”, and we have no idea about whether the final decision has been made, and it could not exclude the possibility that the news report is only the public opinion test by NDRC for its punishment in consideration.

Administrative Warning Issued to 360.cn by Beijing Administration of Industry and Commerce

Posted on February 13, 2013 by yytbest

(By You Yunting) Recently, the Beijing Municipal Administration of Industry and Commerce (“Administration”) published on its official Weibo that the Beijing Administration and Xicheng Administration of Industry and Commerce made an appointment with the chief of Beijing’s Qihoo Co. (“Qihoo”), and issued an administrative warning against company conduct, claiming violations of unfair competition laws and regulations related to its “360 Safeguard” for use in computer internet browsers.

The Court Ultimately Supported Guangzhou Pharmaceutical Holding Company’s Application for an Injunction

Posted on February 11, 2013 by yytbest

(BY Albert Chen ) Guangzhou Pharmaceutical Holding Company (“GPHC”) is the holder of the王老吉 (the “Wang Lao Ji”) trademark in mainland China. In 2000, it licensed Hongdao Group, a Hong Kong admitted company, to use the trademark. After Hongdao Group used the trademark and caused it to develop a definite business reputation, however, a dispute broke out between the two parties over the right to use the Wang Lao Ji trademark.

In the first round of the fighting between the parties, GPHC used arbitration with CIETAC to cancel the supplementary agreements signed between two parties in 2002 and 2003 based upon the fact that the agreements were executed under commercial bribery. This website has discussed the implementation problems arising in that case. After that, the subsidiary of Hongdao Group that had sold Wang Lao Ji, Jia Duo Bao (“JDB”) began to sell its herbal tea under the brand name 加多宝(the “JDB”) Additionally, JDB used disputed slogans, such as “Wang Lao Ji now calls itself JDB,” “China’s top selling red can herbal tea now call itself JDB.” Claiming that such slogans constituted false advertising or unfair competition GPHC filed for an injunction with the Guangzhou Intermediate People’s Court and demanded an immediate halt to such advertisements.

“Do Not Hire Agreements” among Google, Intel, Apple and Other Tech Firms Violates Chinese Laws?

Posted on January 30, 2013 by yytbest

(By You Yunting) As reported, the CEOs of tech giants Apple, Intel, and Google might be forced to go to court to account for mutual unwritten agreements about not soliciting each other’s workers for employment. These cases started due to the dissatisfaction of relevant employees, who believed that such “do not hire agreements” damaged that legal rights and interests. The news has also revealed emails from former Apple CEO, Steve Jobs, threatening Palm and Google and demanding that they stop using headhunters to obtain the email addresses of Apple employees. This news also raised the concerns within the industry.

Is Tencent’s 51Buy’s “Higher Price Reimbursement” Strategy against 360buy Illegal?

Posted on January 29, 2013 by yytbest

(By You Yunting) As reported by the media, the e-commerce site 51buy.com has instituted a so-called “higher price compensation” strategy: if clients of 51buy.com, an affiliate of Tencent, find a lower price for an item on 360.com, then 51buy.com will refund the price difference to the client as credits. According to 360buy.com, however, this action violates the Anti-unfair Competition Law and relevant commercial ethics. 360buy.com therefore sent a warning letter to 51buy.com. In reply, 51buy.com used its Weibo to state that the activity is legitimate and will continue.

Bridge IP Law Commentary

Your Guide to China IP Law！

Category Archives: Competition law