By the news, the original shareholder of the company invested by the private entity (PE) is demanded to pay the enterprise income tax for the premium produced from the investment, and that has arisen wide arguments among the public. And such arguments mainly come from the legislative blank and the different understanding of the taxation administration and the company from their own stance on the issue. To us, despite no direct laws issued on it, a definite conclusion could be made from the existing Corporate Law, enterprise income tax law and basic legal theory that no company income tax shall be levied on the premium.
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.
Why Apple Store’s Design Patent Application is Not Necessary? II
The post will be published on our website for two days, and today is the second half of it. (the image is the picture of Apple Store in Lujiazui from the www.apple.com.cn)
III. The legal risk in the lawsuit filed against design infringement
Furthermore, once Apple initiate the lawsuit basing on the design, it may be trapped in the patent validity and serial lawsuits, and it’s also a common challenge of patent lawsuits in China.
1. The poor stability of design patent
Despite the design patent is granted by the administration after approval, the organ will not examine the novelty and creativity of the patent applied for it being instable at all. For example, in the design dispute between SECO and HONDA (note: the link is in Chinese), when HONDA sued against SECO for the claimed plagiarism of SECO’s S-RV to its CR-V, the defendant filed the application of patent validity, and present the evidence including the previous design patent applied by HONDA.
Why Apple Store’s Design Patent Application is Not Necessary? I
The post will be published on our website for two days, and today is the first half of it. (the image is the picture of Apple Store in Lujiazui from the www.apple.com.cn)
By the report of Shanghai Daily, Apple Inc filed an application to the United State Patent and Trademark Office (USPTO) for the appearance design of its store in Lujiazui, Pudong New Area. In consideration of the fake Apple Store in Kuning, Yunan Province in south and west China, the application made this time may be the international application, and will enter into China soon to stem the flooding knock off stores. More interesting is that the journalist of the Daily interviewed our attorneys before the report, and we reserved our opinion on the application. To complete our comments on it, here’s our analysis on the issue:
Legal Confusions and Difficulties of Industry and Commerce Department in Trade Secret Investigation
The power to administrative punishment on trade secret is enforced by State Administration of Industry and Commerce (SAIC) and local administrations, and in a recent essay (note: the link is in Chinese) by Shanghai Industry and Commerce Administration on the trade secret investigation and evidence collection, the difficulties and confusion faced by the organ are highlighted. The post today is the digest and our comments hereby made:
(I) The technology information examination and reverse problem
Analysis on the Data of Microsoft’s Combat against IPR Infringement
On 23rd February 2012, an article Michael Jordan Wants Respect for his Brand in China in Business Week reported Michael Jordan’s lawsuit against China Qiaodan Sports in China, and said that “After all, China is notorious as a haven for intellectual property rights (IPR) piracy. Microsoft (MSFT), to name just one example, has struggled for years to fight against unauthorized versions of Windows and Office. What makes Michael Jordan think he can succeed where Bill Gates has failed?”
But on 21st March, Mr. Simon L. K. Leung, Chairman and CEO of Microsoft China stated on the interview by Wallstreet Journal that the situation is improving and he credited a campaign against piracy led by China’s Ministry of Commerce, and said an increasing number of state-owned enterprises are using licensed software.
Opinions on E-Commerce’s Unauthorized Change to Consumers’ Comments
Case: A noted Chinese E-commerce website is recently charged with unauthorized modification to customer’s comments on the product sold.(note: the link is in Chinese) A newly bought mobile phone was found used by a consumer from Hangzhou City, who afterwards gave a poor comment on the product. Surprisingly to him, his comment was then changed to satisfy one a month later, for this the consumer only got the reply from the website that it’s a misoperation. Actually, it’s not an individual case in recent. (the image is the logo of 360buy.com, a main B2C website in China)
Interpretation on New Compulsory Licensing for Patent Implementation Rule
China State Intellectual Property Office (SIPO) issued its No. 64 order on 15th March, 2012 to announce the promulgation of the newly revised Measures for the Compulsory Licensing for Patent Implementation (the “Measures”). The most attention catching point is the amendment of medicine patent compulsory licensing. Then, what are the specific provisions? And is there any amendment else deserve you focus? Today, we will make a brief introduction for you. (the image is the picture of Tamiflu once applied for compulsory licensing in China)
SIMENS Benefits: A Breakthrough of the Legal Compensation Limit on Pirate Software Litigation
As reported (note: the link is in Chinese), SIMENS PLC Software won the copyright dispute over its software against Excelstor Technology (Excelsor), a company headquartered in Shenzhen, in Shenzhen Intermediate People’s Court, with a sentence to stop the infringement and compensation of 1.16 million yuan for the infringement. There are two eye catching points in this case: 1) the court aided SIMENS in evidence preservation to detain the computers of Excelsor’ s design department, which are detected of NX Unigraphics copyrighted by SIMENS, and that is rare in the cases of this kind; 2) the judged compensation surpassed the legal limit. The post today mainly focuses on the 2nd point. (the image today is the logo of SIMENS)
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)
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.
MOC Issues New Rule for Trade Secret Protection in Commercial Franchise
Recently, the Ministry of Commerce released the revised “Measures for information disclosure of commercial franchising” (the “Measures”) which will come into effect from 1st April. Compared with the past regulation, the most attractive part is the confidentiality responsibility of the franchisee, and the new regulation consists two main parts as follows（the image today is the logo of McDonald’s and Subway, the major franchisors in China）:
1, The franchisee shall not disclose or improper use any trade secret accessed to him/her when negotiating on the agreement, no matter whether the agreement is concluded or not;
How to Label Patent Mark Correctly in China?
In Recent, State Intellectual Property Office of China (“SIPO”) issued its No.63 order for the promulgation of Measures on the Labeling of the Patent Marks (the “Measures”) on its website, the Measures modifies the past Provisions on the Methods for Labeling the Patent Marks and Patent Numbers (the “Provisions”) and will come into effect from 1st May of 2012. (the image is the certificate of patent in China)
Today, we will introduce you how to label your patent marks in China under the new Measures, and its new provisions.
Does Combination of Youku and Tudou breach China Anti-monopoly law?
Reportedly(the report is in Chinese), the two Chinese leading video websites, Youku.com Inc. (NYESE: YOUKU) (“Youku”) and Tudou Holdings Ltd. (NASDAQ: TUDOU) (“Tudou”) jointly announced today that on 11th March, 2012, they have signed a definitive agreement for the combination of Tudou and Youku in a 100% stock for stock transaction, which has been approved by each party’s board of director but still waiting for the shareholders’ approval, and is planned to be completed in the third quarter of 2012.I think, it shall be noted that some anti-monopoly issues may be arisen from the combination of the two Chinese biggest video websites, which possibly resulting adverse impacts on the rights and interests of consumers and fair competition.
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)