(By You Yunting) As from October 2013, the National Development and Reform Commission (the “NDRC”) starts the anti-monopoly probe into the world’s biggest cellphone chip maker, Qualcomm (NASDAQ: QCOM) , and makes in-depth investigations and discussion with tens of cellphone manufacturers and baseband chip manufacturers at home and abroad. Recently, the NDRC determined that Qualcomm holds a dominant position in the markets of standard essential patents (“SEPs”) licensing in relation to CDMA, WCDMA and LTE wireless communication and the baseband chip market, and that Qualcomm be fined 6.088 billion yuan in the violation of the Anti-Monopoly Law. Today we will introduce the punishment decision and make comments.
Could Co-Founder Rush-Register A Planning Trademark As His Own?
(By Luo Yanjie) Article 15 of both the 2014 version and the 2001 version of the Trademark Law stipulated that an agent shall not rush-register trademarks of the principal or the represented. In practice, Article 15 is always used to prevent from rush-registration. The following judgment will introduce a typical rush-registration case with new ideas for reference.
Introduction to the Case:
Re-appellant (plaintiff at first instance, appellant at second instance): LEHMANBROWN LIMITED (the “HK Company”)
China Laws and Regulations Update in March 2015
1. The New Law Concerning the Administration of Tax Collection (Draft for Comments) Recently Published for Public Comments
The New Law Concerning the Administration of Tax Collection (Draft for Comments) (the “Draft”) was recently published for public comments (Closing date: 3rd of February 2015).
Contents of such Draft involve ideas about establishment of taxpayer identification number policy, based on which each Chinese citizen has a unique and permanently valid taxpayer identification number, new provisions on stopping collection of and not collecting tax interest surcharges, granting tax breaks to those who actively cure acts related to wrongful tax collection or cooperate with tax authorities to investigate wrongful tax collection cases, lowered standards for imposing punishments on taxpayers, narrowed scope for tax authorities to exercise prosecutorial discretion.
DeBund Succeeds in Pushing Copycat Game App from AppStore
Recently, DeBund takes a big step forward in providing mobile internet legal services that You Yunting Team, on behalf of clients, succeeds in pulling a popular game from the AppStore by more than 10 lawyer’s letters.
The Developer of the complained game copied large amounts of background elements of a well-known game, including graphic design, plots, role names and geographic names, and also used the brand of the original game. The Developer also made a cartoon modeling on the game characters, and did a slight change to the game name, not exactly the same as the original game. The infringed benefits greatly from the complained game to millions of yuan every month.
Does Unauthorized Use of Screenshots in Game Guide Constitute Infringement?
(By You Yunting) A game guide, also known as game strategy guide, is an essential reference for players. Generally, a game guide may quote pictures and screens from the game itself. But if without authorization, it triggers questions whether this quotation causes copyright infringement. In the following, a similar case will be introduced.
Introduction to the Case:
Plaintiff: Shanghai Aurogon Information and Technology Co., Ltd (the “Aurogon”)
1st Defendant: China Zhongdian Media Co., Ltd (the “ZD Media”)
Qvod Vs China Government: RMB 260 million Punitive Fine for Copyright Infringement?
(By You Yunting) Introduction to the Case:
Plaintiff: Shenzhen Qvod Technology Co., Ltd (the “Qvod”)
Defendant: Market Supervision Administration of Shenzhen Municipality (the “MSA”)
Court of first instance: Shenzhen Intermediate People’s Court
The MSA filed a case with the Shenzhen Intermediate People’s Court, and claimed to cancel the punitive fine of RMB 260 million from the MSA. On 30th of December 2014, the Shenzhen Intermediate People’s Court held the trial as the case is still on that trial.
Does Proposed Anti-Monopoly Investigation against the Merger of Didi and Kuaidi Affect Innovation?
(By You Yunting) China’s two largest Taxi apps Didi Dache (“Didi”) and Kuaidi Dache (“Kuaidi”) confirmed merger on the Western Valentine’s Day, triggering the whole industry, which also lead to the suspicion of a monopoly. Afterwards, the Taxi apps Didi and Kuaidi responded this with much larger travel markets, and told that their merger does not lead to a monopoly, because mobile taxis only count a small proportion with lots of participators. As for whether their merger is accused of monopoly, there are hot discussions among legal professions. At present, third parties were tending to make anti-monopoly investigation from the Ministry of Commerce, and I am no exception. But after full consideration, I fell into confusion.
China Laws and Regulations Update in February 2015
- The New Foreign Investment Law(Draft) Published for Public Comments
On 19th of January 2015, the Ministry of Commerce of PRC published the Foreign Investment Law of PRC (Draft for Comments) (referred to as ‘draft FIL’ below). Opportunities to offer comments on the draft FIL will remain open to the public until 17th of February 2015.
Significantly, the draft FIL transforms the current foreign investment administration system by introducing the administration model combining pre-establishment national treatment policies and the Negative List and stipulating that foreigners intending to invest in one of the areas as specified in the Negative List shall apply for and obtain a foreign investment entry permit beforehand. Also, foreign investors throughout PRC shall perform the reporting obligation regardless of the Negative List. Under this new administrative system, foreign investment in most areas can be admitted to PRC without prior approval by relevant departments. In addition, the draft FIL includes provisions on China’s national security review system, the foreign investment promotion and protection system, supervision and inspection of investment and operational actions taken by foreign investors and foreign invested enterprises, strengthened in-process and after-the-fact administration.
Is Integrated Circuit Layout Design Protected by China Judicial Judgment?
(By You Yunting) Introduction to the case:
Appellant (plaintiff at first instance): Hi-Trend Technology (Shanghai) Co., Ltd (the “HTT”)
Appellant (defendant at first instance): Shenzhen Rui Micro-Technology Inc. (the “RMT”)
Respondent (defendant at first instance): Shanghai Yachuang Electronic Component Co., Ltd. (the “YEC”)
Court of first instance: Shanghai No.1 Intermediate People’s Court No.: (2010)沪一中民五(知)初字第51号
Court of second instance: Shanghai Higher People’s Court No.: (2014)沪高民三(知)终字第12号
Is It Illegal for WeChat to Block Sharing Link of Alipay?
(By You Yunting) Recently, China Internet giant enterprises generated an intense competition during their hand-to-hand combat, but this time the main character is the Tencent which successively block sharing link with Alipay, Xiami Music App and NetEase Cloud Music App on its WeChat platform. It means that WeChat users could not use the mobile applications to link the contents of Alipay Red Envelope Gifting, Xiami App and NetEase Cloud Music App on its WeChat platform.
Afterwards, Tencent implied externally that the act of sharing link with Alipay Red Envelope Gifting is a malicious marketing and promotion on its WeChat platform, even a shattering experience, and its blocking should have something done with the uninstallation of WeChat Payment on Alipay platform (Chinese Link: http://tech.techweb.com.cn/thread-642700-1-1.html) For cutting off link with Xiami App and NetEase Cloud Music App, Tencent implied to have relationship with its content piracy (Chinese Link: http://tech.sina.com.cn/i/2015-02-05/doc-ichmifpx7018268.shtml).
Does Story Plot Plagiarism Constitute Copyright Infringement in China?
(By You Yunting) Introduction to the Case:
In the first half of 2014, Palace 3: the Lost Daughter is a 2014 Chinese historical television series written and produced by Yu Zheng. In April 2014, a Taiwanese writer Chiung Yao made a letter claimed that Palace 3: the Lost Daughter (the “disputed show) was based on her novel Plum Blossom Scar (the “reference novel”), but Yu Zheng delayed. On May 28, 2014, Chiung Yao filed a lawsuit, claiming that Yu Zheng was unauthorized to copy her original core plot, recompose the disputed drama and produce and broadcast the disputed show with another 4 defendants. Chiung Yao thought that Yu Zheng had seriously violated her right of adaptation and cinematization, causing great mental damage, and requested Yu Zheng to immediate stop infringement, eliminate influences, make an apology and compensation of RMB 20 million for economic loss.
China Laws and Regulations Update in January 2015
- The State Administration of Taxation of the PRC Promulgates the General Tax Avoidance Prevention Measures (for Trials)
On 2nd of December 2014, the State Administration of Taxation of the PRC promulgated the General Tax Avoidance Prevention Measures (for Trials), which will come into effect on 1st of February 2015.
This file has specified the characteristics of tax avoidance cases, tax adjustment measures, the general tax avoidance control procedure comprised of three processes, i.e. filing, investigating and closing a case, functions and authority different taxation authorities have in each process, and the rights of investigated businesses to raise objections, request remedies, act as mediators for settlement of disputes.
Will China New Foreign Investment Law Wipe Out VIE Structure?
(By You Yunting) Abstract: The Foreign Investment Law (Draft for Comments) has shifted the standard of a company based upon the actual controller, instead of the shareholder of the company, and regulated that the domestic company must not engage in any industries where operation by foreign investors is prohibited. In case the Draft becomes law, it will cut off the survival basis of VIE structure, so that the VIE company controlled by foreign investors cannot be operated, that the overseas listed company controlled through the VIE structure by Chinese will lose its survival basis of oversea listing, and that the startup companies of VIE structure controlled by Chinese will be forced to abandon the VIE structure.
China Laws and Regulations Update in December 2014
- The State Council Releases the Catalogue of Investment Projects Subject to Government Verification and Approval (2014 Edition)
On 31st of October 2014, the State Council released the Notice of the State Council on Promulgating the Catalogue of Investment Projects Subject to Government Verification and Approval (2014 Edition), which became effective on the same date.
Enterprises that intend to invest in and construct the fixed-asset investment projects listed in the Catalogue shall apply to relevant project verification and approval authorities for verification and approval in accordance with pertinent provisions. Enterprises that intend to invest in and construct projects other than those listed in the Catalogue shall be subject to record-filing administration. Projects invested and constructed by public institutions, social organizations, etc. shall be governed by the Catalogue.
China Supreme Court Approved Passive Use as the Use of Trademark
(By Luo Yanjie) Trademark is to distinguish the goods and services from different trademark owners. However, if the public voluntarily called it another name and made use of it, then does such use still constituted the use of trademark as regulated in the Trademark Law. If you want to know more, please read the next posts.
Introduction to the Case:
Re-appellant (third party at first instance and appellant at second instance): Gui Pufang
Re-respondent (plaintiff at first instance and respondent at second instance): Guangdong Tea Imp. & Exp. Co. Ltd (the “GDT”)