Changes in Trademark Crime Related Provisions of (Eleventh) Made by the Amendment to Criminal Law

(By Ye Sushuo)Comparison between trademark crime related provisions

Changes of trademark crime related provisions in Articles 213 to 215 of Section 7, Chapter 3 of Criminal Law
Crime Current Criminal Law (Eleventh) Amendment 2020
Article 213 Crime of falsifying a registered trademark A person who uses a mark that is the same as other’s registered trademark on the same type of products without permission of the registered trademark owner in serious circumstances should be sentenced to less than three years in prison or detainment and/or payment of a fine; and more than three and less than seven years in prison and payment of a fine in very serious circumstances. A person who uses a mark that is the same as other’s registered trademark on the same type of products or services without permission of the registered trademark owner in serious circumstances should be sentenced to less than three years in prison and/or payment of a fine; and more than three and less than ten years in prison and payment of a fine in very serious circumstances.
Article 214 Crime of selling products with a falsified registered trademark A person who sells products in a large amount of sales which they know contain a falsified registered trademark should be sentenced to less than three years in prison or detainment and/or payment of a fine in case of a large amount of sales; and more than three years and less than seven years in prison and payment of a fine in case of a very large amount of sales. A person who sells products which they know contains a falsified registered trademark should be sentenced to less than three years in prison and/or payment of a fine in case of a large amount of illegal profits or serious circumstances; and more than three years and less than ten years in prison and payment of a fine in case of a very large amount of illegal profits or very serious circumstances.
Article 215 Crime of illegally manufacturing or selling illegally manufactured registered trademarks A person who falsifies or manufactures other’s registered trademark without permission or sells a registered trademark falsified or manufactured without permission in serious circumstances should be sentenced to less than three years in prison, detainment or surveillance, and/or payment of a fine; and more than three years and less than seven years in prison and payment of a fine in very serious circumstances. A person who falsifies or manufactures other’s registered trademark without permission or sells a registered trademark falsified or manufactured without permission in serious circumstances should be sentenced to less than three years in prison, and/or payment of a fine; and more than three years and less than seven years in prison and payment of a fine in very serious circumstances.

Change A: An additional type of trademarks – service marks

One of major changes in trademark related crimes is that acts of seriously infringing service marks are treated as the crime of falsifying a registered trademark. Whether provisions relating to the crime of falsifying a registered trademark apply to service marks was always a question discussed in academic and practical worlds. Because of the large-scale development of the Chinese service industry, there is an urgent need to strengthen criminal law protection of service marks.

READ MORE

Strategies for Protecting Intellectual Property Rights in Online Education Platform Software

(By Gao Shaoyi, Li Rong)Online education is becoming increasingly more important to educational and training industries due to the impact of Covid-19. Online education platforms provide various educational services including course video recording, live online teaching, personalized teaching and instructing, test question searching, work assessment, etc., which to some extent reduce the effect of suspension of on-campus classes on teachers and students. There are many online education platform developers and a lot of online education platform software products launched. Some software brands are copied from others. Therefore, for online education platform software developers, giving a protection for intellectual property rights in their online education platforms in all respects is the only way to gain more core competitive advantages and succeed in today’s market.

READ MORE

Malicious Registration of “渣渣辉” Trademark! Zhang Jiahui VS Game Operator of Legend of Blue Moon

As media reported, Zhang Jiahui, a film star in Hong Kong recently applied for the “渣渣辉” trademark for all items under Class 45. I searched the database of the trademark office and found that Jiangxi Tanwan Information Technology Co., Ltd. (“Jiangxi Tanwan”), the operator of the game “Legend of Blue Moon” had applied for the same trademark before.

All the “渣渣辉” trademark applications filed by Zhang Jiahui would be rejected by the trademark office because of the prior applications. I noticed a big news that Zhang Jiahui and Jiangxi Tanwan were scrambling for “渣渣辉”, a valuable popular brand. Now let’s discuss how the two sides use laws to obtain the trademark.

READ MORE

How to Protect Public Service and Product Marks

(By Lv Xuanxuan)Information about “one-stop online services” and the app of “in Shanghai” for the general public appeared on the official website of “the People’s Government of Shanghai” on 22 February 2019. Online “windows” such as “in Shanghai”, “With You”, “One-stop Online Services”, “On Your Hands”, “On Your Fingertips” give more convenience to the public to deal with administrative affairs. However, the application of the internet plus will make it more difficult to prevent “free riders” in the public service area. Search results generated by search tools in certain apps using key words about the above services frequently show account numbers and service marks that are very similar to or even the same as the official service names. This article aims to explore the protection of public service and product marks in hope of contributing to the construction of the “service government”[1].

READ MORE

Does the Merchandizing Rights Fall into the Protection for Priority Right in China Trademark Cases?

(By Ning Tinggang) Beijing Intellectual Property Court recently introduced some movie, TV series, music, animation and game related cases it heard in 2015 and 2016 via its public WeChat platform, including the trademark “Kuroko Basketball” invalidity case which inspired me. The way that the court dealt with this case shows a new trend of protecting merchandizing interests which we legal professionals should pay attention to.

Case Introduction

Kuroko Basketball is a popular comic work about basketball created by ふじまき ただとし, a Japanese comics artist. The work was serialized on the magazine SHONEN JUMP published by Shueisha since the second issue in 2009, and then was adapted for an animation and first broadcast on 7th April 2012. The plaintiff, SL Sport Ltd. in Kaiping (“SL Company”), filed a trademark-register application to the trademark office on 19th July 2012. As approved, this trademark (“Disputed Trademark”) should be used under Class 25. In addition, SL Company registered tens of trademarks closely connected with popular comics works such as Kuroko Basketball and SLAM DUNK that Shueisha had published, including trademarks used under Class 18, 24, 25, 35 and other types of commodities or services. Thus, Shueisha filed a request for declaration of invalidity of the Disputed Trademark.

READ MORE

Shall Quantities of Malicious Registration Be Improper Means in China Trademark Law?

(By Wang Ting) In China, the Trademark Law applies the Principle of First Filing and when the Trademark Office reviews these applications, they usually examine whether there are prior applications or registrations existed, but not the intentions of filing such prior registrations. It means they don’t consider the bad faith during trademark registration procedure. Many foreign companies have applied and obtained the trademarks for their own products and services at the beginning. However, as so-called villains can always outsmart, besides the malicious registrations of others’ un-registered trademarks, there are lots of cases in which the trademark squatters register the well-known or popular trademarks on different goods or services. Thus foreign companies suffered from such consequences. Today, in our introduced case, we are going to discuss about the situations that the acts of malicious registrations under different classes are finally determined as improper means as stipulated in the Trademark Law.

READ MORE

Why Does Shanghai Court Dismiss a Non-use-Oriented Trademark Register in Malicious Lawsuit?

(By Yue Mengyan) There are many applicants who register a tremendous number of trademarks without the use-oriented purpose. Moreover, they register trademarks on obvious malicious purpose. In such situation, their enforcement for trademark protection shall be limited and their claims for compensation against trademark infringement may not be favored by the court.

Case Introduction

Appellant (Plaintiff at the first instance): Guangzhou Zhinanzhen Exhibition Service Co., Ltd. (the “ZHINANZHEN”)

READ MORE

Could Coexistence Agreement Be Accepted in Trademark Application in China?

(By Yue Mengyan) Pursuant to China trademark laws and regulations, if certain trademarks have been already registered for certain goods, applicants cannot apply for such same or similar trademarks for any same or similar products. However, if the trademark coexistence agreement is made by the right holder of prior registered trademark and applicant of an identical or similar trademark without interfering in each other’s interests, then it is possible for the applicant to successfully obtain the approval of such application.

READ MORE

Exactly what are Values of the Two-Year College.

Superior schooling within this nation is speedily turning into a need within the venture group as a substitute for an extravagance. With the previous the people today who had a secondary faculty teaching continue to experienced the prospect to manufacture a superior society for themselves as well as their people. People days are promptly turning into one other dieing coal of the earlier. About the off likelihood that you just wish to have vast obtaining prospective amid your life span you could be thoroughly restricted by your understanding future also, the amount of instruction you will have gotten.

READ MORE

Does the “GAP Underwear” Trademark Have Adverse Effect by Its Name?  

(By Luo Yanjie) Trademark Office (the “CTMO”) has been increasingly tightened its standards on trademark reviewing and claiming that the trademark itself may cause “adverse effect”. Competent authorities are more than inclined to use such grounds indiscriminately by treating it as an all-purpose shield to deal with distinct situations. Recently, the Supreme People’s Court remedied such phenomenon by making its decision on the GAP Underwear’s cases. The following is our detailed introduction:

READ MORE

Laws and Regulations Update in June 2016

1. Notice of the State Council on Issuing the Transitional Plan on Adjusting the Distribution of the Value-Added Tax Revenue between the Central Government and the Local Governments after the Comprehensive Promotion of the Pilot Program of Replacing Business Tax with Value-Added Tax

This Notice was issued by the State Council on 30th April 2016, stating that the transitional plan described therein would come into effect on 1st May 2016 and the transitional period would be two to three years. According to this Notice, the repayment base for the central government and the payment base for the local governments should be assessed on the base of the year 2014, and the total income from payments for the value added tax would be shared by the central government and the local governments, of which 50% belongs to the central government and the rest 50% would be allocated to and shared by the local governments of the areas of the taxpayers.

READ MORE

Case Analysis: Legal Risks in Franchise Business

(By Yu Zhiyuan) I recently represented a client who was finally the winning party to a typical franchise dispute case, from which we can learn most legal risks possibly facing franchisors and franchisees during their performance of franchise business as well as operational standards and risk control measures for businesses in the brand chain industry.

  1. Case Facts  

In this case, the franchiser, owner of a well-known early childhood education brand, entered into a franchise agreement with each franchisee to perform franchise activities as a chain store dealing in the franchiser’s brand. As mutually agreed, in addition to one-off franchise fees and deposits, each franchisee should pay royalty fees in advance before each royalty year begins, and if there is any overdue payment of royalty fees, penalties.

READ MORE

What Legal Risks Involved in Event Marketing in China?

Wang Feng

 (By You Yunting) Mr. Wang Feng (in the Left Picture), the husband of the well-known international film star, Ms. Zhang Ziyi, is a famous singer in China, whose image has immense commercial value. Amateur singer Ding (in the Right Picture) became famous because of imitating Wang Feng in an imitation talented show. Except the similar appearance, he dressed up himself as Wang Feng did, sang the songs created by Wang Feng and even claimed to have his face changed in order to achieve a more vivid effect. As is reported that Wang Feng filed a lawsuit for infringing his rights of name and portrait against Ding who was suspected of profit-making publicity by using the name and photos of Wang Feng in Weibo. Wang Feng claimed to stop the infringement immediately and pay compensation for the infringement incurred.

READ MORE