Category Archives: Protection

Microsoft ‘s New Anti-piracy Development in China: An Ever-long Criminal Sentence for IPR Infringement

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The screen print of POTATO windows’ desk, a pirated windows system in China

By You Yunting

The maximum imprisonment in China Criminal Law concerning the crime of intellectual property is 7 years, but a recent judgment in Beijing against the criminal is 7 years and 6 months.

According to the report of Sina Tech, the Chinese merchant Shang Yajun was penalized the imprisonment of 7 years and 6 months for copyright infringement and the sale of illegally manufactured registered trademarks. The 1st Intermediate People’s Court of Beijing upheld the Haidian District Court’s decision, representing the longest-ever criminal sentence in China for such crimes in China.

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

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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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Legal Analysis on Conflict Between Domain and Name Right According to Chinese Law, I

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By Albert Chen

In recent, one of the hot news in China, might be Mr. Zhou Libo’s taking back the network domain in his name (Zhou is the comedian star of Shanghai style small talk, a talk-show like performance in Shanghai dialect). Ms. Yue from Beijing registered “zhoulibo.com” (the “domain”) in 2007, and in September of 2011, Mr. Zhou filed the arbitration in the Asian Domain Name Dispute Resolution Centre (ADNDRC), claiming that the main part of the domain is as same as the pinyin of his name which is highly possible to result in the misunderstanding among the public. The ADNDRC finally adjudicated the domain to Mr. Zhou. For the dissatisfaction with the decision, Ms. Zhou brought the dispute to Shanghai No.2 Intermediate People’s Court, but the court refused all the claims of her.

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Data on IPR Development in China, 2011

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In recent, the News Office of the State Council held a news conference (note: the link is in Chinese), releasing the data on China IPR development in 2011, and the details are as follows:

Under the unified deployment of special acts by the State Council in combating the IPR infringement and the production and selling of the fake and substandard products, the filed cases in the administration of each level are 155, 900 with the involved amount of CNY 3.43 billion, 1, 702 cases were transferred to judicial organs and 9, 135 shelters were shut down.

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The iPad Battle Comes into Price Negotiation Phase, Apple Offered Proview $16 Million But Refused (Updated)

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by You Yunting

According to the report of China media(note: the link is in Chinese), the iPad battle in mainland China has seen a lifting turn. The parties, Proview and Apple, have come into the phase of reconciliation and price negotiation from the previous heat argument on the court, and the main difference between the parties is the gap on the compensation. But no matter the result is, the decision of Guangdong Higher People’s Court will be delayed for both parties’ willing to the reconciliation. By the report of Jinghua News (note: the link is in Chinese), Apple’s offer of 100 million yuan (1.6 million US dollar) to purchase the iPad trademark has been refused by Proview.

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China Supreme People’s Court: Latest IPR Related Cases Data of 2011 in China

The Supreme People’s Court (SPC) of China released the latest data of IPR cases in 2011

In 2011, the number of first instance civil intellectual property cases accepted and disposed by local courts grew by 38.86% and 39.51% to 59,612 and 58,201 respectively.

Among the cases accepted in 2011, 7,819 were patent cases, up 35.16% year-on-year;

12,991 were trademark cases, up 53.56% year-on-year;

35,185 were copyright cases, up 42.34% year-on-year;

557 were technology contract cases, down 16.87% year-on-year;

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iPad Trademark Battle: Court Seeks Conciliation while New Hearing Not Excluded

According to the report, the judge of Guangdong Higher People’s Court stated on 17th April that the court will make a comprehensive consideration on the newly filed iPad trademark dispute between Apple and Proview for the social and legal benefit, and make a reasonable arrangement on the issue. Guangdong Higher People’s Court is seeking the conciliation between the parties under their voluntariness.

Mr. Xu Chunjian, the deputy chief judge of Guangdong Higher People’s Curt, says the iPad trademark battle will produce a deep influence on the market share in China of iPad as well as the development of the product’s commercial model. Therefore, it demands the maximum realization of the parties’ interests with the fair and strict application of the law by the court. Meanwhile, the presiding judge of the third civil hearing court of Guangdong People’s Higher Court Mr. Qiu Qingyong also stated that a new hearing may be arranged when new facts appear to be investigated after the examination on the current evidences.

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To Stem the Passing Off on Michael Jordan

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As reported, Michael Jordan, the basketball legend, made an announcement through PR Newswire that he’s formally suing Chinese sportswear maker Qiaodan Sports (the “Qiaodan Company”) for using without authorization. To Jordan’s words, what makes him more disappointed is his children’s names are also infringed by the company, and he also added the lawsuit is not about money.

Actually “Qiaodan”, the transliteration in Chinese of Jordan, accompanied with the logo of a basketball man have long been used by the Chinese sportswear maker, and that could not be newly known to Jordan in afraid. However, the lawsuit is filed when Qiaodan Company is preparing its listing; therefore “it’s not about money” might more accurately to be “it’s not ALL about money”.

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China Ranked 7th International Trademark Application

On March 13th, from the World Intellectual Property Organization (WIPO) official website, in 2011, China submitted 2149 Madrid international trademark registration system application to WIPO, accounting for 5.1% of the total, and ranked seventh in the world with one position advanced by 2010. In addition, China remained the most designated country for trademark protection.

The top three applicants are EURO, Germany, U.S.A., and China took the post of the seventh with the application of 2149. For the annual development rate, Russia ranks first and China at the place of fourth.

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Legal Problems on RIM’s Recent Combat on Trademark Infringement in China, II

III. The differences between the act of refurnishing mobile phones and crime of counterfeiting registered trademarks

The crime of counterfeiting registered trademark specified in the Article 213 of the Criminal Law ( the “Article 213”) refers to whoever, without permission from the owner of a registered trademark, uses a trademark which is identical with the registered trademark on the same kind of commodities shall, if the circumstances are serious, be sentenced to fixed-term imprisonment of no more than three years or criminal detention and shall also, or shall only, be fined; if the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined . (the image is the genuine Blackberry and genuine Blackberry)

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Legal Problems on RIM’s Recent Combat on Trademark Infringement in China, I

The Conduct of Making and Selling Refurnished Mobile Phones Constitutes Crime of Counterfeiting Registered Trademarks?

After I read the article wrote by reporter Mr. Nie Shihai from the Judicial View on the First Case of Counterfeiting Trademark BlackBerry (the “Judicial View”) explaining and analyzing the decision made by the court from the aspect of jurisprudence, which is published in The China IP of 2011 February, I got contact with the editor due to my doubts about the sentences and finally I got the criminal sentences of the first instance and second instance. Through reading the sentences, I think the conduct of making and selling refurnished mobile phones doesn’t constitute the crime of counterfeiting registered trademarks for the following reasons.

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Why Starbucks Lost in Trademark Objection Adjudication in China?

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According to the news from local media in China, Starbucks Corporation (NASDAQ: SBUX) recently filed a lawsuit against the Trademark Review and Adjudication Board (the “Board”), for it was refused by the Board for the application of the review of 沙巴克 (which is similar to the Chinese translation of Starbucks 星巴克 in Chinese) trademark application on mineral water products(沙巴克is similar to the translation of Starbucks 星巴克 in Chinese). 沙巴克 was applied by an individual  on 16th July of 2003 on the mineral water beverage, which in Starbucks Corporation’s opinion shall constitute the similarity of identity of its local trademark of 星巴克, and therefore, Starbucks Corporation filed a trademark review to the Board and also applied a official establishment of the well-known trademark of 星巴克 in the field of Café, Café operation & service and coffee beverage.(the image above is the Starbucks café and the poster of the World of Legend)

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Comments on the Trademark Squatting of HERMES

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Another Lesson from the Negligence of Trademark Localization

It’s reported (note: the link is in Chinese) that the well-known luxury brand HERMES INTERNATIONAL has registered its international trademark of HERMES in China as early as in 1985, while its official Chinese name 爱马仕 is unregistered. While, on the other hand, Dafeng Garment (the “Dafeng”), a clothing company admitted in Foshan City of Guangdong Province registered the Chinese trademark of爱马仕 in September of 1995, though it was disputed later in 1997 and 2001, Dafeng still owns the right of the trademark. In 2009, HERMES INTERNATIONAL registered爱马仕 in the class of tie manufacture, which was refused by the trademark office and remained rejected by the Trademark Review and Adjudication Board (the “Board”) after the review procedure. After that HERMES INTERNATIONAL filed the lawsuit against the Board, but finally the court supported the decision made by the Board.

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Could There Be Any Improvement on Facebook’s Trademark Application Strategy in China?

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