Category Archives: Competition

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

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 (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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Why Shanghai Court Not Accept Nikon D600’s Dispute over False Advertisement?

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(By You Yunting) Abstract: If Shanghai plans to become an international financial center, it is judicial fairness that is an important aspect of a very good investment environment that must be provided by governments. If the court attempts to protect an enterprise beyond the letter of the law, it will cause greater long-term damage on China’s interests, and on fairness and justice than any immediate benefits obtained now, whatever companies company achieves those benefits.

On March 15, 2014, China CCTV exposed the professional SLR quality problems of Nikon D600 SLR, where black spots frequently appear on photographs. After this exposure, our team, acting as a representative of our client Mr. Xu, brought the case concerning Nikon into court. On March 18, 2014, my colleague Luo Yanjie and our client filed a legal complaint to Huangpu District Primary People’s Court.

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China Laws and Regulations Update in March 2014

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1. The State Council has begun circulating the “Registered Capital Registration System Reform Plan”

On February 7th, 2014 the State Council issued the Registered Capital Registration System Reform Plan (the “Plan”) with the purpose of promoting the development and efficiency of business registration systems.

The Plan makes it clear that requirements for registered capital of companies applying to be incorporated will be lowered. However, minimum registered capital restrictions could remain applicable to companies in given industries subject to relevant laws, administrative rules and decisions made by the State Council. The new guidelines stipulate that the minimum registered capital restrictions of RMB 30,000 on limited companies, RMB 100,000 on solely- owned limited companies and RMB 5,000,000 on stock-limited companies will generally be lifted. Additionally, restrictions on the proportion of registered capital that is initially subscribed by all shareholders (or initiators) upon incorporation of a company as well as the proportion of registered capital subscribed in cash by all shareholders (or initiators) to the total registered capital of a company will be lifted. The duration of existence for a company with registered capital not fully paid by its shareholders (or initiators) will also no longer be limited.

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

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(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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The Impact of Criminal Inducements and Controlled Deliveries on the Conviction of Business Secret Infringement Offences

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(By Wu Pengbin)  1. Introduction

I was the defense counsel of this case, in which the defendant was induced to conduct an illicit transaction and involved in a controlled delivery. The case facts are summarized as follows:

The defendant, Mr. Zheng resigned from his employment as an engineer from the informant, Sany Heavy Industry Co., Ltd. (referred to as ‘SANY’ hereafter) two years ago before the crime was committed. As charged by the People’s Procuratorate of Fengxian District, Mr. Zheng sold SANY’s technical drawings he illicitly obtained to ‘Mr. Zhou’, who paid in cash for the sale (at the price of RMB 700,000), and was caught red-handed by the police of Fengxian Public Security Bureau. The drawings sold by Mr. Zheng was recognized to be business confidential and worth about RMB 800,000.

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

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(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?

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(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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Why Did the Court Not Rule in Accordance With Article 14 of the Anti Monopoly Law? Part I

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(By You Yunting) August 1, 2013 was the fifth anniversary of the enactment of China’s Anti–Monopoly Law. On the same day, Shanghai Higher People’s Courts handed down the first decision that supported a plaintiff’s claim in an anti-monopoly civil ligation in China. The court determined that Johnson & Johnson Medical Co. Ltd action constituted as a vertical monopoly for restricting the minimum sales price, and the company was ordered to make civil compensation for the plaintiff’s loss.

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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 this only standard. Even if the court finds that the later trademark application to be similar with the earlier applications, and 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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Would Those First Users Involved in OEM Constitute Trademark Infringement?

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(By Albert Chen) The author once introduced readers to different judicial opinions adopted in the Shanghai and Guangzhou courts over whether trademark infringement could be caused by an OEM. According to a ruling handed down by the Fujian Higher People’s Court in 2012, which came to the attention of the author recently, the judge confirmed that an OEM could lead to trademark infringement, but decide at the same time that no liability shall be taken by the first user of the mark, for no confusion would be made. As for that point, the author certainly has a different opinion.

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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) User information is very important to a website 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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