China Laws and Regulations Update in December 2017

1. Circular Notice on Adjusting Import Taxes on Certain Commodities
Promulgated by the Ministry of Finance
Document number: No.25 [2017] TB
Promulgation date: 22nd November 2017
Effective date: 1st December 2017

As from 1st December 2017 import taxes on certain commodities are reduced based on current tax rates. The import tax reduction this time applies to 187 commodities with an 8-digit tax number such as food, healthcare products, medicine, cosmetics, clothes, shoes and hats. The average tax rate is reduced from 17.3% to 7.7%. The tax rate of diapers and nappies is reduced from 7.5% to 0%. The tax rate of certain baby milk powder products is reduced from 20% to 0%. (Source: Website of the Ministry of Finance)

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Why Does Shanghai Court Dismiss a Non-use-Oriented Trademark Register in Malicious Lawsuit?

(By Yue Mengyan) There are many applicants who register a tremendous number of trademarks without the use-oriented purpose. Moreover, they register trademarks on obvious malicious purpose. In such situation, their enforcement for trademark protection shall be limited and their claims for compensation against trademark infringement may not be favored by the court.

Case Introduction

Appellant (Plaintiff at the first instance): Guangzhou Zhinanzhen Exhibition Service Co., Ltd. (the “ZHINANZHEN”)

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Does the “GAP Underwear” Trademark Have Adverse Effect by Its Name?  

(By Luo Yanjie) Trademark Office (the “CTMO”) has been increasingly tightened its standards on trademark reviewing and claiming that the trademark itself may cause “adverse effect”. Competent authorities are more than inclined to use such grounds indiscriminately by treating it as an all-purpose shield to deal with distinct situations. Recently, the Supreme People’s Court remedied such phenomenon by making its decision on the GAP Underwear’s cases. The following is our detailed introduction:

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Analysis on New Provision of Agent’s Trademark Rush-Registration in China Trademark Law

(By Luo Yanjie) According to the latest news report, more than 14 millions of trademark applications in China have already been filed by June 2014. It indicates that Chinese economy develops very fast and also that brands across China and even all over the world, big or small, are attempting to the protection of trademark registration in China. However, there is no doubt that some trademarks were registered with bad faith at the beginning, i.e., pirate trademark rush-registrations. Among those trademark rush-registrations, some of rush-registrars are connected to the original holders, thus leading to prevention from agent’s trademark rush-registration as regulated in Article 15 of the Trademark Law (2001 version). Furthermore, in the newly applicable Trademark Law from May 2014, legislature departments made implementation on the Article 15. In today’s post, we will discuss the modification and its application.

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China Court Affirmed the Exception for Registration of Geographical Name Trademark

Munich Re Group

 (By Luo Yanjie) According to the Trademark Law, the geographical names of administrative divisions at or above the county level, and foreign geographical names well-known to the public shall not be used as trademarks, except for geographical names that have other meanings or are not geographically-oriented. However, under certain circumstances, geographical trademarks shall, if they are of sufficient distinctiveness as a whole, may be considered to have the requisite requirements of distinctiveness. In today’s post, we will introduce such a typical case for our readers.

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Why Tudou.com Failed to Apply for Tudou trademark under Class 41?

tudou

(By You Yunting) Tudou.com (NASDAQ:TUDO) are connected with trademarks in different kinds of services relating entertainments under Class 41. However, Tudou.com failed to apply for its website name as a trademark by virtue of previous similar trademark. Tudou.com is focusing on providing services of video-sharing and video on-demand, but we found out its major services cannot be applied for trademark protection. Therefore, how to deal with this trademark application puts forward higher requests for trademark lawyers. In today’s post, we will introduce this case and discuss the comments in the following.

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Alert: SoundCloud, Ubuntu and Lots of Famous Brands are being Rush-Registered as Trademarks in China !

(By You Yunting) Recently, a news article sparked concern that the Qihu Investment Co., Ltd (a similar Chinese name to Qihoo 360 Technology Co., Ltd) had rushed-registered hundreds of trademarks belonging to internet venture companies. Even though Qihoo 360 Technology Co., Ltd later clarified that it had nothing with the Qihu Investment Co., Ltd, the news still attracted attention from both companies and lawyers.

Many famous companies’ brands, such as Ubuntu, Hotel Tonight and SoundCloud were being rush-registered as trademarks and some have even entered into the process of announcement by the Chinese Trademark Office after a preliminary examination and within three months of the date of the publication. The overseas companies may lose the exclusive right of trademark in China unless they file an opposition against these rush-registrations. Worse, they will not be able to use these brands they have created when entering the Chinese market for a significant length of time. In today’s post, we would like to address how venture companies should resolve trademark squatting.

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Why Court Decision Exempts Wal-Mart From liabilities of Trademark Infringement?

castel

(By Luo Yanjie) Abstract: In the event that a party unknowingly sells goods that infringe upon another party’s exclusive right to use a registered trademark but can prove that it has obtained the goods lawfully and is able to identify the supplier shall not be held liable for damages. In a case that a trademark holder separately sues sellers, despite no laws requesting the manufacturers to join in the lawsuit, for the purpose of preventing contradictory judgment, the courts could notify him or her requesting joinder. It is the manufacturers that could decide whether acting as a third party to join the lawsuit.

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Why Could “Kellogg Company” not be Registered under Class 41 for Educational Services?

kello

(By You Yunting) Kellogg Company, an American multinational food manufacturing company, produces cereal and convenience foods, including cookies, crackers and fruit-flavored snacks. However, in China, someone tried to apply for “Kellogg” as a trademark under Class 41 for educational services. After discovering this, Kellogg Company filed an opposition, but suffered a setback at first in that both the TRAB and Beijing No.1 Intermediate People’s Court rejected its claim. After Kellogg Company appealed, Beijing Higher People’s Court supported its claims, on the ground that the disputed trademark infringed the prior enterprise name of Kellogg Company.

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Why the TRAB Removed the Johnson & Johnson’s “ONETOUCH” Trademark?

Johnson-Johnson

(By You Yunting) U.S. drugmaker Johnson & Johnson (NYSE:JNJ) and Guilin Zhonghui Biotechnology Co., Ltd are in fierce competitions on blood glucose test strips in China. Johnson & Johnson has always accused Guilin Zhonghui Biotechnology Co., Ltd of producing counterfeits of Johnson & Johnson’s OneTouch blood glucose test strips used by patients with diabetes, but did not receive support of the courts in responding litigations. Recently, Guilin Zhonghui Biotechnology Co., Ltd won this dispute through revoking Johnson & Johnson’s ONETOUCH trademark. The followings are the case introduction and our analysis.

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Could an Additional Proof be Admitted in the TRAB’s Trademark Review?

手持椰子

(By Luo Yanjie) Abstract: The general principle of copyright authorship centers on the signature in the work pursuant to the Copyright Law. The Trademark Review and Adjudication Board shall determine the proof that provided by the administrative counterparty with strict and cautious attitude and consider the changes together with the combination of legal facts and objective conditions so as to make a ruling that protects the right holders’ legitimate rights and interests.

The people’s court shall have the right to revoke the ruling made by the Trademark Review and Adjudication Board (the “TRAB”) and order the TRAB to remake a ruling. For how the TRAB deal with the additional evidences provided by the administrative counterparty during the period of re-ruling, there are no clear laws and regulations. In today’s post, we would like to introduce a typical case with readers.

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How to Solve the Language Conflict between Foreign and Chinese-Language Trademarks?

资生堂

(By You Yunting) When applying for trademark registration in China, foreign companies are often puzzled by an issue arising out of a translation of a foreign trademark into Chinese being rejected by the Trademark Office due to a language conflict with some preexisting trademark. In our experience, however, if an applicant can prove to the court that its trademark won’t cause confusion with previously registered trademarks, there is a great chance of success in a foreign trademark ultimately being registered. As follows, we will introduce a case where a Chinese court supported the Japanese Shiseido Ltd. Co. in applying for registration of its BéNéFIQUE trademark.

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Why BURBERRY’s Classic Pattern Registered Trademark was Revoked in China?

23901

(By You Yunting) Earlier in November, China’s Trademark Office announced canceling Burberry’s trademark of the “Haymarket Check” in China, known as iconic tan, black and red tartan (the “disputed trademark”), under Class 18 for packaging and bags because Burberry had not even used the registered trademark for over three years in China by the media.

A Chinese bag and apparel maker Polo Santa Roberta, who had disputes with Burberry for many years, filed an application with the China’s Trademark Office for revoking the disputed trademark that Burberry had not used for over three years. The State Trademark Office decided to revoke Burberry’s trademark due to inadequate evidence from Burberry after consideration, but Burberry applied for review with the Trademark Review and Adjudication Board, triggering heated debates in China.

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Why could China’s Courts Decide for Audi’s “TT” to Apply for a Trademark?

TM截图未命名

(By Luo Yanjie) Abstract: as for whether trademarks are similar, many times, it is decided on the subjective cognition of the judge. Furthermore, considering the fact of the distinctiveness of a trademark, whether the “TT” trademark has distinctiveness is still in doubt.

Automobile models are always composed of simple numbers and English letters. Sometimes manufacturers of bestselling cars once hoped to register these simple models as trademarks but all failed (for example, A6, A4, etc.). However, Audi canceled the rules handled down by the Trademark Review and Adjudication Board through administrative litigation processing, thus possibly obtaining trademark registration:

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