(By You Yunting) The Chinese internet industry is a fiercely competitive one in which many large internet companies have used lawsuits to gain a competitive advantage. Lawyers are engaged by internet companies to fight against their competitors using any new laws and regulations that might offer opportunity. In the most recent unfair competition litigation Qihoo 360 v. Baidu, Qihoo 360 applied for a litigation injunction to prevent Baidu engaging in infringement. On May 23, 2014, the Beijing No.1 Intermediate People’s Court issued its first litigation injunction since the new Civil Procedure Law came into effect.
(By You Yunting) Malicious litigation refers to instituting a lawsuit through fictional facts and falsified evidences for the purpose of receiving unlawful benefits. In today’s post, we will introduce some provisions about malicious litigation in intellectual property laws and civil procedure law in China.
I. Provisions on wrongful litigation injunction can be applied into malicious litigation.
In litigations concerning patent, trademark and copyright, the right holder always applies for such litigation injunctions as termination of infringement, evidence preservation and property preservation. Where the court approved the application, if the litigation is proved to be malicious, the respondent may require the applicant to compensate for such losses. Article 13 of the Several Provisions of the Supreme People’s Court on the Issues Concerning the Application of Law to Terminating Infringement upon Patent Prior to Litigation stipulates that:
(By You Yunting) Abstract: If Shanghai plans to become an international financial center, it is judicial fairness that is an important aspect of a very good investment environment that must be provided by governments. If the court attempts to protect an enterprise beyond the letter of the law, it will cause greater long-term damage on China’s interests, and on fairness and justice than any immediate benefits obtained now, whatever companies company achieves those benefits.
On March 15, 2014, China CCTV exposed the professional SLR quality problems of Nikon D600 SLR, where black spots frequently appear on photographs. After this exposure, our team, acting as a representative of our client Mr. Xu, brought the case concerning Nikon into court. On March 18, 2014, my colleague Luo Yanjie and our client filed a legal complaint to Huangpu District Primary People’s Court.
(By You Yunting) According to reports, in February 2014, Shanghai No.1 Intermediate People’s Court approved plaintiff NOVARTIS’s application requesting the court to order an injunction ruling so as to protect its legal rights and interests in a trade secret litigation.
According to reports, NOVARTIS claimed that the defendant should not disclosure, use or allow another party to use the 879 documents on its trade secret lists that shall keep secret.
For intellectual property infringement, China’s supreme People’s Court may also set a temporary injunction on judicial interpretations of the Patent Law, Trademark Law and Copyright Law; we have previously provided posts discussing related systems in other areas of intellectual property law, such as patent preliminary injunction, copyright injunction and litigation injunction. With regard to trade secrets, however, no particular injunction is set on judicial interpretations of the Anti Fair Competition Law.
(By You Yunting) Perfetti Van Melle Confectionery (China) Co., Ltd. (“Perfetti”) has a well-known candy named Alpenliebe, whose slogan is “浓浓奶香情 Nong Nong Nai Xiang Qing”. “浓浓 Nong Nong” refers to a strong scent, while “浓浓奶香情 Nong Nong Nai Xiang Qing” in English refers to a “strong milk taste,” i.e., the candy is notable for its rather strong milky flavor. A Zhejiang-based company owned the “浓浓 Nong Nong” trademark under the classification for candies, and filed a lawsuit accusing Perfetti of infringement and unfair competition for its use of that slogan. In today’s post, we will introduce relevant legislation on substantiality and procedure in this particular case.
(By Albert Chen) Guangzhou Pharmaceutical Company’s lawsuit (GPC) against Jia Duo Bao (JDB) for false advertising was heard in January of this year at the Guangzhou Intermediate People’s Court. In addition to the arguments held by each party regarding the false advertising, they also disputed whether an injunction could be issued as applied to GPC. Ultimately, the Guangzhou Intermediate People’s Court approved the injunction, basing its decision on findings that JDB had exploited GPC through false advertising, thereby confusing and misleading consumers. The Court then prohibited JDB from making advertisements with claims that GPC’s vitamin drink “Wang Lao Ji” had changed its name to JDB, or any other similar slogans indicating that somehow GPC’s Wang Lao Ji product was the same as JDB’s as the result of a name change.
Today, we are going to continue our interpretation of the “Regulation on Several Issues concerning the Application of Law in Hearing Civil Disputes on Infringement against the Right to Network Dissemination of Information” (the “Network Interpretations”), basing on the review over the legislature on the right of information communication by networks in China:
Part II, Explanation of Network Interpretations
1. PSP users cannot claim to be free of liability on the basis of a personal use defense.
Adopted at the 1561st Session of the Judicial Committee of the Supreme People’s Court on November 26, 2012, and came into effect from January 1, 2013.
For the purpose of correctly trying civil disputes of infringement of information network broadcasting rights, lawfully protecting the right of information network communication, promoting the healthy development of the information network industry and maintaining the public interest, according to the General Principles of Civil Law of the PRC, the Tort Liability Law of the PRC, the Copyright Law of the PRC, the Civil Procedure Law of the PRC and other relevant laws and regulations, in combination with civil trial practice, the regulation is made as follows:
(BY Albert Chen ) Guangzhou Pharmaceutical Holding Company (“GPHC”) is the holder of the王老吉 (the “Wang Lao Ji”) trademark in mainland China. In 2000, it licensed Hongdao Group, a Hong Kong admitted company, to use the trademark. After Hongdao Group used the trademark and caused it to develop a definite business reputation, however, a dispute broke out between the two parties over the right to use the Wang Lao Ji trademark.
In the first round of the fighting between the parties, GPHC used arbitration with CIETAC to cancel the supplementary agreements signed between two parties in 2002 and 2003 based upon the fact that the agreements were executed under commercial bribery. This website has discussed the implementation problems arising in that case. After that, the subsidiary of Hongdao Group that had sold Wang Lao Ji, Jia Duo Bao (“JDB”) began to sell its herbal tea under the brand name 加多宝(the “JDB”) Additionally, JDB used disputed slogans, such as “Wang Lao Ji now calls itself JDB,” “China’s top selling red can herbal tea now call itself JDB.” Claiming that such slogans constituted false advertising or unfair competition GPHC filed for an injunction with the Guangzhou Intermediate People’s Court and demanded an immediate halt to such advertisements.
(By Albert Chen) The hearing in the false advertising dispute between Guangzhou Pharmaceutical Holding Company (“GPHC”) (SSE: 600332) and Jia Duo Bao (“JDB”) was held in January of 2013 in the Guangzhou Intermediate People’s Court. In addition to the arguments over false advertising, the application for a litigation injunction has been hotly debated. Today, we would like to introduce you to the injunction, which is called “preliminary execution” in China’s Civil Procedure Law.
By Albert Chen
The most watched dispute between Baidu (NASDAQ: BIDU) and Chinese Writers Alliance (the “Alliance”) is heard on 11th of October in Beijing No.2 Intermediate People’s Court. That lawsuit is filed following the battle against Baidu by the Alliance. Before the hearing on 11th, Apple applied to the court for the hearing in camera with the claim that the case is with trade secret related. After the consideration by the court, such an application was refused by the judge, yet it still decided the procedure may switch into be in private when one the interrogation involves the business secret. In today’s post, you may see our analysis on the “lawsuit in camera” in China.
I. The General Office of the State Council Issued Several Opinions on Promoting Steady Growth of Foreign Trade.
The General Office of the State Council issued the Several Opinions on Promotion of Steady Growth of Foreign Trade of the General of Office of the State Council (the “Several Opinions”) on 18, September, 2012, which provide 16 opinions to promote steady growth of foreign trade in 2012, including doing well with export tax refund and financial service, developing trade facilitation, improving trade environment, optimizing the trade structure and other areas. And the policies of export tax refund and export credit insurance are the hot issues attracting the attentions. The experts said the following detail implementation measures and provisions would be promulgated soon for the implementation of the Several Opinions.
By You Yunting
As reported by media, Beijing No.2 Intermediate People’s Court made the first instance decision for infringement claims made by Encyclopedia of China Publishing House (Encyclopedia) agains Apple’s AppStore. With the decision, Apple shall compensate Encyclopedia RMB 520, 000 yuan and immediately cease the infringement. In current, no intention to appeal has been expressed by Apple.
Case: Encyclopedia discovered Apple’s user could purchase and download apps of its copyrighted works, which could be read in iPhone and iPad. With the anger of the infringement, Encyclopedia filed a lawsuit against Apple, who counter-stroke that the actuall operator of AppStore is a company registered in Luxembourg, not Apple. And Apple provided no services in the process of software uploading, and therefore Apple shall be with no engagement in the dispute.
By You Yunting
In March of 2012, 22 Chinese authors filed a lawsuit against Apple in Beijing No.2 Intermediate People’s Court and claimed compensation of more than ten million. In the case, the plaintiffs stated that their works have been adapted into apps used on iPhone, iPad and iPod Touch, free of being charged at App Store. The case is the first lawsuit with the operator of App Store being the defendants, and will produce a prominent influence on the newly developed online store, which was launched in 2008 and with more than 360 million users . Now the litigation is under the spotlight, and this essay is focusing on the legal status of Apple and the defects in the process complaints of the store.
By You Yunting
We have reported that the iPad trademark battle in China has come to its end, with Apple paid the reconciliation fee of $ 60 million to Shenzhen Proview. But the story seems to not end there, Grandall Law Firm, the attorney of Shenzhen Proview filed a lawsuit to local people’s court on 23rd July demanding the lawyer’s fee of $ 2.4 million.
And as said by the latest news of the case, Grandall Law Firm, GH Law Firm, Hejun Vanguard Group and other units providing legal or agency service to Proview applied to Shenzhen Yantian People’s Court in written for the freezing of iPad trademark in China, also they have submitted the guarantee of RMB 300 million.