The Supreme People's Court recently promulgated two judicial interpretations regarding IP rights disputes that involve internet service providers (ISPs): the Reply to Several Issues Concerning the Application of Law in Online IP Rights Infringement Disputes, which applies to all ISPs, and the Guiding Opinions on the Trial of Civil IP Rights Cases Involving E-Commerce Platforms, which target e-commerce platforms. This article summarises the key points of these two judicial interpretations.
Soon after the recent adoption of the third amendment to the Copyright Law, the Supreme People's Court promulgated the Opinions on Strengthening the Protection of Copyright and Copyright-Related Rights. The opinions aim to encourage the development of emerging industries and improve the quality and efficiency of copyright trials.
In a notable trademark case, the Beijing High Court found on appeal that the trademark 罗曼尼·康帝, a Chinese transliteration of 'Romanée-Conti', should be protected. The trademark contained characters that were found to have a stable corresponding relationship with the geographical indication (GI) Romanée-Conti, so the court found that its registration violated the Trademark Law. The decision suggests that unregistered foreign GIs may be granted protection in China.
In an exemplary trademark case, Inner Mongolia Yunlu Water Industry Company Limited filed an invalidation claim against a trademark on the grounds that it breached the Trademark Law. The trademark in question was the name of a place in Inner Mongolia, China, which was known for its rich mineral resources. Therefore, the trademark's registrability depended on whether the name had acquired any additional meanings other than that of the place name.
In September 2020 the Supreme People's Court and the Supreme People's Procuratorate jointly promulgated Interpretation III on Several Issues Concerning the Specific Application of the Law in Handling Intellectual Property Criminal Cases. The judicial interpretation aims to reduce IP rights crimes and create a business-friendly environment by establishing unified standards in the application of the law in this regard.
The Supreme People's Court recently promulgated Several Provisions on Evidence in Civil Litigation Involving Intellectual Property Rights. The 33-article provisions alleviate the burden of proof on IP rights holders and streamline the formal requirements for evidence sourced outside China. They also introduce penalties for evidence obstruction.
The Interpretation on Several Issues Concerning the Application of Laws in the Trial of Civil Cases Involving Disputes over Food Safety (I) recently came into force. The 14-article interpretation sets out the scenarios in which various parties will be held liable and the level of compensation liability that they will assume. This article explores some of the interpretation's key takeaways, including with respect to e-commerce and parallel imports.
The Commercial Press has published the Dictionary of Frequently Used Ancient Chinese Characters since 1979. It has been reprinted more than 160 times and sold over 22 million copies. The Commercial Press was recently awarded Rmb1.5 million in damages in the first court ruling in which a book planning firm and a publisher were held liable for joint infringement in a dispute concerning book decoration.
The National People's Congress recently passed the fourth amendment to the Patent Law, which will come into effect on 1 June 2021. It has been eight years since the first draft was released for public opinion. This article provides an overview of how the patent regime will be updated.
The Standing Committee of the National People's Congress recently adopted the third amendment to the Copyright Law, which is the result of decade-long legislative efforts of the Legislation Office of the State Council and the National Copyright Administration. The amendment will enter into force on 1 June 2021. This article provides an overview of the key highlights of the new law.
The number of trademark applications has increased progressively in recent years and this has created serious adverse consequences, including with respect to trademark squatting. Rights holders must be aware that legal means are available to help them deal with trademark squatters and know that, since the government has decided to tackle the problem, these legal means are effective.
As a rising fashion brand in China, Tommy Hilfiger has been constantly challenged by an increasing number of copycats. In a recent case, Tommy Hilfiger initiated an invalidation action against a Chinese company's disputed mark and successfully invalidated it on the grounds of prior use and the similarities between the designated goods of the disputed trademark and its cited trademark.
During a volatile 2020, China's legislature completed the overhaul of an amendment to patent and copyright law and promulgated varied judicial interpretations and policy documents projected to bring substantial changes to the nation's IP landscape from 2021. These well-coordinated legislative efforts ensure that parties will have detailed rules and criteria to follow and will improve the consistency, predictability and transparency of IP protection in China.
LPG Systems recently received an administrative decision from the Beijing Intellectual Property Office ordering an infringer to stop its design patent infringement. Previously, LPG had prevailed in an invalidation proceeding initiated by the infringer against its design patent in which the China National Intellectual Property Administration maintained the validity of this design.
The China National Intellectual Property Administration recently released details of 10 exemplary patent administrative enforcement cases from 2019. One selected case concerned a patent infringement dispute relating to the anti-tumour drug sorafenib, which has been selected for its significance in respect of the application of the Bolar exemption.
Whether the use of a trademark in the title of a product sold online constitutes trademark infringement typically depends on whether such use is fair. When products are sold online, determining what constitutes fair use can be tricky. Two cases involving famous mobile phone manufacturers Xiaomi and Oppo illustrate this problem.
In April 2020 the Beijing High Court published the Guidelines on the Determination of Damages and Statutory Damages in Disputes over Intellectual Property and Unfair Competition. These guidelines, which entered into effect on the date of issuance, are detailed, precise and even innovative. Even if they have binding force on only the Beijing courts, they should be influential throughout the rest of the country.
Apart from securing damages from infringers in a time-efficient manner, IP rights holders could leverage settlement agreements to rein in repeated infringements, provided that a considerable amount of damages could be written into the agreement as an insurance policy in case of repeated infringement. The courts tend to validate such damages clauses as long as infringement is established.
The Beijing IP Court recently denied the inherent and acquired distinctiveness of Van Cleef & Arpels' four-leaf clover 3D trademark. Van Cleef & Arpels appealed before the Beijing High Court and the case is pending. The Beijing IP Court has set a high threshold in assessing the registrability of a 3D trademark which consists of a product shape. It remains to be seen whether this view is shared by the Beijing High Court.
In 2019 the IP Tribunal of the Supreme People's Court confirmed that a physical mobile phone was eligible prior art in assessing the novelty and inventiveness of a patent. The tribunal clarified that a party that asserts a physical object as prior art must specify the asserted prior technical solution, specify the corresponding relation between such prior technical solution and the physical object and prove or demonstrate that the public can intuitively obtain the technical solution from the physical object.