Category Archives: Litigation

How to Apply for Evidence Preservation for IPR Trials in China

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By Luo Yanjie

In an earlier Microsoft’s case of right protection (Note: the link is in Chinese), the company applied for the evidence preservation to the court after they found the piracy using by others, demanding the perpetuation covering the pirated Microsoft software installed in the computers in the defendant’s business place. The application was accepted by the court, who thereafter sealed and checked the computers claimed and found each apparatus has been installed at least 5 types of software of Microsoft. Whereby, Microsoft gains the compensation of more than 1 million yuan in the following trials.

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MOC: Data of IP Infringement Law Enforcement of this 1st Quarter in China

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By You Yunting

The Ministry of Commerce (MOC) reported on 12th the latest progress of the combat against the IPR infringement and knockoff production in 2012 in China. And today’s post is mainly about part of the data released on the conference.

By the preliminary statistics, during this January to April, the commerce law enforcement departments nationwide have investigated and punished those involved in 78,773 cases of intellectual property rights (IPR) infringement and counterfeits, with the money involved of 1, 810 million yuan, 44,371 settled , 1, 016 transferred to the judicial organ and 4,065 dens for counterfeit manufacture are smashed. Also during the period, the public security department investigated 7, 140 cases of infringement and counterfeits, with 9, 305 suspects were arrested and 161. 1 million yuan is involved. During January to April, the procuratorate approved the arrestment in 1, 743 infringement or counterfeits cases and on 3, 289 individuals, and prosecuted 2, 516 cases and 4, 870 individuals. And also in the same period, 2, 586 criminal cases relating to the IPR infringement and counterfeits are filed in the courts throughout the nation, 2, 021 were settled and 3, 170 individuals are covered by the effective sentences.

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New iPad Comes to China in June & New Progress of iPad Battle in China as Reported

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By You Yunting

According to the report, an insider said :” The New iPad will be officially on sale in the middle of this month in China mainland. Many dealers have begun to book orders. In addition, the insider said that Apple Inc and WeiGuan company have reached a” reconciliation” on some extent in the case of trademark IPAD in mainland.

According to the information announced by the website of Telecommunication Equipment Certification Center (A department under Chinese Ministry of industry and information technology ) in the end of last month, a mobile device of Apple( Apple, Inc., AAPL ) compatible with China Unicom ( China Unicom Ltd., CHU ) has obtained the license. From the wording of Telecommunication Equipment Certification Center, the device should be the Apple ‘s new iPad.

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Will JDB Revoke Wang Lao Ji Trademark Arbitration Award through Litigation?

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By You Yunting

In recent, a spat over the established brand Wang Lao Ji, also known as Wong Lo Kat, which is the most valuable herbal tea trademark in China, has occurred. The biggest distributor of the drink in China, JDB group, claimed that it has filed the application to Beijing No. 1 Peoples’ Bank to revoke the adjudication made by the China International Economic and Trade Committee (CIETAC) on the dispute.

The basic facts of the case in the reports: Guangzhou Pharmaceutical Group Co., Ltd. (the “Guangzhou Pharmaceutical’, SZSE: 600332) is the registered owner of the Wang Lao Ji trademark, who signed a trademark license agreement with Hung To Group Co., Ltd. (the “Hung To”, the parent company to JDB), by which Hung To gets the loan of the trademark of 10 years.

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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, 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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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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Latest News of iPad Battle: Shenzhen Court Refused Bankruptcy Application against Shenzhen Proview

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According to the news from China Daily (note: the link is in Chinese), there’s new progress in the iPad battle between Apple and Proview, and just like our past judgement, for the value of iPad trademark is impossible to estimate, the Shenzhen Intermediate People’s Court recently adjudicated the refusal on Taiwan Fubon Insurance’ s application on the bankruptcy liquidation of Shenzhen Proview.

Taiwan Fubon Insurance applied the bankruptcy liquidation to the Shenzhen Intermediate People’s Court on Shenzhen Proview who failed to clear the debt due and being insolvency. After the investigation, the court takes Shenzhen Proview as the only legal owner of iPad trademark for the mark is still registered under the name of Shenzhen Proview. Currently, Shenzhen Proview’s intangible asset are remained un-estimated with its value not determined, and thus it could not decide whether Shenzhen Proview is trapped in insolvency and enable to pay its debt; therefore the court adjudicated the refusal of Taiwan Fubon Insurance.

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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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A Compromise between Michael Jordan and Qiaodan Sports?

Reportedly (Note this report is in Chinese), Michael Jordan, the star sportsman of NBA, recently made a statement that Qiaodan Sports Co., Ltd. (“Qiaodan Sports”) is suspected of infringement on his right of name, and he had initiated the legal proceeding in the People’s Court of China. And by the late news, the Shanghai Second Intermediate People’s Court has accepted this case. It is reported (Note this report is in Chinese) that the Qiaodan Sports has been approved by the Issuance Examination Committee of Shanghai Stock Exchange (SSE) to issue 11.25 million shares collecting RMB 1.06 billion, which would be issued publicly upon the future approval of China Securities Regulatory Commission (CSRC). (the image above is the trademark information retrieved from the trademark office of PRC)

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Why Shenzhen Proview Will Not Be Bankrupt Immediately?

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According to the report from the Beijing News (note: the link is in Chinese), Shenzhen Proview, the company battling against Apple in the iPad trademark dispute has been applied for bankruptcy clearance by its debtor Taiwan Fubon Insurance (Fubon), who first applied for the bankruptcy to Shenzhen Intermediate Court in June of 2011 and sent the written notice to urge the acceptation on 20th February, 2012.

According to the Enterprise Bankruptcy Law, “where an enterprise legal person fails to pay off its debts, and that if its assets are not enough to pay off all the debts or if it is obviously incapable of paying off its debts, its debts shall be liquidated in accordance with the provisions of the present Law.” That is to say the bankruptcy could only be applicable when the company’s assets are not enough to pay off its debts or it’s obviously incapable to pay off its debts. In the case, it’s arguable to say Shenzhen Proview is under such situations. For one hand, Fubon claims Shenzhen Proview has not made the payment on its debt and seems to be incapable to make the payment, while on the other hand, Shenzhen Proview disclaimed the accusation and insisted the iPad trademark is valuable enough to clear all the debt once it could be realized, and therefore it shall not be liquidated under the bankruptcy procedure.

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