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

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(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.

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

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(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.

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

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(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.

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Will the Wang Lao Ji Brand Holder’s Litigation Injunction Application Against Jia Duo Bao Be Approved?

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(By Albert Chen) The hearing in the false advertising dispute between Guangzhou Pharmaceutical Holding Company (“GPHC”) (SSE: 600332) and Jia Duo Bao (“JDB”) was held in January of 2013 in the Guangzhou Intermediate People’s Court. In addition to the arguments over false advertising, the application for a litigation injunction has been hotly debated. Today, we would like to introduce you to the injunction, which is called “preliminary execution” in China’s Civil Procedure Law.

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Is It Lawful for News Websites to Demand Payment of Fees for Google and Baidu Searches

(By You Yunting) According to a report in the New York Times, as also reported by some European websites, Google is recompiling its searched news results as a news page. It may be said that this method could infringe the copyright of the original publishing websites and, as a result, Google should pay fees for the websites. This idea has received support from both the French and German Governments, yet Google believes that its behavior fully conforms to the law, and thus should not have to pay any fees. In China, the main search engines Google and Baidu provide this kind of news search service, and today’s post will discuss whether it is lawful for news websites to claim fees from the search engines.

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The Judicial Jurisdiction of Network Infringement in China

By Albert Chen

In the post Could Apple Use Objection to Jurisdiction to Prolong the Litigation Period?, we introduced the objection to jurisdiction Apple submitted to the Beijing Second Intermediate Court after it was sued by the China Writers Alliance over downloads in Apple’s App Store. In China, the infringement or tort cases shall be brought to the court of infringement place or the domicile of the defendant, and the infringement place may include the place where the infringement takes place or the place where the consequences of the infringement are felt. With regard to network infringement, could the place where the consequence of infringement is felt include any computer terminal? Today, we will introduce the relevant system.

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Different Judicial Opinions from Cases on Name Trademarks and Domain Name Conflicts in China

By Albert Chen

In the first half of this year, our website posted an essay discussing the domain name dispute heard in the Shanghai No. 2 Intermediate People’s Court (“Shanghai Court”) concerning the renowned comedian Zhou Libo. Recently, the Beijing No. 1 Intermediate People’s Court (“Beijing Court”) decided a very similar case. Yet there were very different standards used to decide the different cases in Beijing and Shanghai. The most critical point is the determination of whether, after receiving the invitation to buy the domain name, the rights holder had bad faith during registration and use of the domain name.

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Analysis on Legal Risk of Out-of-Account Kickback by Foreign Invested Companies in China

By Luo Yanjie

As the mid-autumn festival is drawing on, the producers and sellers of moon cakes in cities throughout China (note: the link is in Chinese) are keen in the promotion of the snack. And by the investigation of some reporters, some merchants even try to get a big order for the moon cake by risking the kickback, and by one case, the reporter pretended to order 200 boxes of moon cakes in the name of a company, the kickback offered to him is 6% of each 10 thousand purchase, that means a total feedback of RMB 2, 400 will be paid to the reporter for the 200 boxes purchase. And in addition to the official kickback, another part of rebate from the salesman is also available.

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Is It Illegal for 360buy Blocking Etao’s Price Comparisonand Plugin?

Today we are going to discuss legal problems concerning the 360buy blocking Etao.com, Alibaba’s price comparison website,’ and its plug-ins. And it shall be first pointed out, the author has no relation with either party of the event. The introduction to the event background:

In November of 2011, 360buy took technical measures to block the price search engine of Etao, who afterwards replied it would no longer index the price data of 360buy by Weibo. Yet in the price war between 360buy and Suning, Etao again published the live price comparison between 360buy and other online shopping stores. And in recent, 360buy further blocked the browser plug-in of Etao on 360buy.com, and the plug-in is designed to show the prices on different websites of the same product. Etao stated 360buy is paralyzing its software.

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Analysis on Search Promotion’s Infringement Liability against Trademark and Fair Competition

By Luo Yanjie

In recent, 360buy.com, also called Jingdong Market, which is a famous online retailer in China, lost its lawsuit in an unfair competition dispute. In the case, another company called Jingdong Rubber registered the domain name of jingdong.cn, who recently found 360buy.com (Jingdong Market) will be on top of the search result of www.jingdong.cn, and right to the results is the link of “brand propaganda”. Then Jingdong Rubber filed a lawsuit against 360buy.com and Baidu (NASDAQ: BAIDU), accusing the defendants of unfair competition. After the hearing of the 1st instance, 360buy.com was deemed liable for unfair competition, yet meanwhile, Baidu was decided free of liability.

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Damages from Over Promotion by E-retailers

Recently, a sale’s promotion campaign (note: the link is in Chinese) is launched by China e-commerce merchants on Weibo, a twitter like website. On 14th August, Mr. Liu Qiangdong, CEO of 360buy.com made a statement on Weibo that all the major home appliances sold on his website will maintain ZERO gross profit in the coming 3 years, and will also be 10%  cheaper than those sold by Sunning and Gome, who are also the major E-retailers in China. Facing the challenge, Sunning (SZSE: 002024) and Gome (SEHK: 493) replied that all their commodities will be cheaper than 360buy.com. After that, both sides announced they will adjust the prices in time to ensure its own prices are lower than the opponent. The quarrel on Weibo triggered a promotion battle between the e-retailers, and after the 1st day of fighting, 360buy.com said the total sales of the day had been over RMB 200 million.

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Cartier sues Walmart’s Yihaodian of Trademark Infringement and Non-fair Competition

—Complementation between Anti-unfair Competition Law and Trademark Law

By Luo Yanjie

Anti-unfair competition law, trademark law, Walmart, Cartier, Yihaodian, yihaodian.com, Yihaodian being charged, Cartier sues Yihaodian, malicious competition in market, unfair-competition infringement, trademark infringement, trademark lawyer, trademark infringement definition, establishment of unfair-competition, legal protection of trademark in unfair competition law, false propaganda, revision of anti-unfair competition law, completion of anti-unfair competition law,

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How to Avoid Online Game’s Risk of Gambling in China?

Zhengtu is a online game operated by Giant China

By Albert Chen

In recent, the report of the online game gambling in some regions in China again hits the headline of the newspaper, and accordingly, the Ministry of Culture of China (MOC), the department supervising and managing the operation of online game, issued the notice (note: the link is in Chinese), demanding a new round of special examination on the online broad game in this May to June.

Actually, this is not the first time we have seen the special notice by MOC on the online gambling. Before that, MOC has respectively with the Ministry of Public Security and the Ministry of Commerce publicized Notices on the Regulation of Online Games Operation Order and Prohibit Gambling in Online Games (the “Notice I”) and Notices on Reinforced Management on Virtual Currency in Online Game (the “Notice II”). Basing on these notices, MOC afterwards promulgated the Interim Measures on the Online Game Management (the “Management Measures”) in June of 2010.

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Legal Analysis on Conflict between Domain and Name Right According to Chinese Law, II

By Albert Chen

III. What are the user’s interests on the domain and fair reasons to the registration and using?

At present, the standard in practices to judge the user enjoys the interests on the domain is to determine whether there’s a connection between the user and the domain or the main part of the domain, and this connection involves the overlap or correspondence between the name, company name or trademark of the user and the domain.

Surely, it also comes to our attention that even there’s no overlap or correspondence as mentioned above, the interests on the domain of the user or a fair reason to the registration or using of the users could also be established when a domain has been operated for a long period and thereby accumulates the social reputation, like the 163. com of Netease and 360buy.com of Jingdong.

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