Latest updates

Punitive damages highlighted in new judicial interpretation on food safety
Wanhuida Intellectual Property
  • Intellectual Property
  • China
  • 01 March 2021

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.

Publishing house awarded Rmb1.5 million in damages for trade dress copycat
Wanhuida Intellectual Property
  • Intellectual Property
  • China
  • 22 February 2021

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.

National People's Congress passes fourth amendment to Patent Law
Wanhuida Intellectual Property
  • Intellectual Property
  • China
  • 15 February 2021

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.

Third amendment to Copyright Law
Wanhuida Intellectual Property
  • Intellectual Property
  • China
  • 08 February 2021

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.

Best strategies for fighting trademark squatting
Wanhuida Intellectual Property
  • Intellectual Property
  • China
  • 01 February 2021

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.

Tommy Hilfiger invalidates trademark piggybacking on its iconic flag logo in actual use
Wanhuida Intellectual Property
  • Intellectual Property
  • China
  • 25 January 2021

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.

Legislative overview 2020: patent law, trade secrets and judicial interpretations
Wanhuida Intellectual Property
  • Intellectual Property
  • China
  • 18 January 2021

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.

Stopping patent infringement in four months through administrative action
Wanhuida Intellectual Property
  • Intellectual Property
  • China
  • 30 November 2020

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.

Bolar exemption does not apply to offering to sell patented drugs
Wanhuida Intellectual Property
  • Intellectual Property
  • China
  • 23 November 2020

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.

Does use of trademark in title of product sold online constitute trademark infringement?
Wanhuida Intellectual Property
  • Intellectual Property
  • China
  • 16 November 2020

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.

Beijing High Court guidelines on determining compensation for IP rights infringement
Wanhuida Intellectual Property
  • Intellectual Property
  • China
  • 09 November 2020

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.

Strategising on writing damages into settlement agreements in case of repeated IP infringements
Wanhuida Intellectual Property
  • Intellectual Property
  • China
  • 02 November 2020

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.

Van Cleef & Arpels' four-leaf clover 3D trademark invalidated in China due to lack of distinctiveness
Wanhuida Intellectual Property
  • Intellectual Property
  • China
  • 26 October 2020

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.

Clear and convincing evidence standard should be applied to prior art taking form of physical objects
Wanhuida Intellectual Property
  • Intellectual Property
  • China
  • 19 October 2020

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.

China embraces pharmaceutical patent linkage system
Wanhuida Intellectual Property
  • Intellectual Property
  • China
  • 05 October 2020

The exposure draft for the Implementation Measures for Early Resolution Mechanism of Pharmaceutical Patent Disputes (for Trial Implementation) was recently published to solicit public opinion. The measures are the first legal document explicitly addressing the pharmaceutical patent linkage system in China since the idea was first floated by the National Medical Products Administration in 2017. This article examines the measures' key takeaways.

Landmark judicial interpretation promulgated in patent administrative cases
Wanhuida Intellectual Property
  • Intellectual Property
  • China
  • 28 September 2020

The Supreme People's Court recently promulgated the Provisions on Several Issues Concerning the Application of Laws in Adjudicating Administrative Cases Involving Granting and Affirmation of Patent Rights, which is the first judicial interpretation concerning the trial of patent administrative cases. This article summarises the judicial interpretation's main points.

Guangzhou IP Court reaffirms legality of parallel imports
Wanhuida Intellectual Property
  • Intellectual Property
  • China
  • 21 September 2020

The Guangzhou IP Court recently upheld a first-instance judgment which had dismissed a trademark infringement claim against parallel imported products. The decision reaffirms the judicial practice that the import of non-counterfeit goods without the express permission of the trademark owner is not illegal in China, provided that the imported products comply with China's compulsory certification requirements and the importer does not modify, in any way, the imported product.

CNIPA upholds opposition filed by Marlon Brando's estate
Wanhuida Intellectual Property
  • Intellectual Property
  • China
  • 24 August 2020

In China, an individual's name right is no longer protectable after their death. Although Marlon Brando passed away in July 2004, the China National Intellectual Property Administration (CNIPA) recently rejected an application to register the trademark MARLON BRANDO and the Chinese equivalent in respect of goods in Class 3. The CNIPA held that the registration and use of the trademarks would violate Article 10.1.8 of the Trademark Law.

SAMR to launch nationwide campaign against free-riding in healthcare sector
Wanhuida Intellectual Property
  • Intellectual Property
  • China
  • 17 August 2020

Against the backdrop of the COVID-19 outbreak, the State Administration for Market Regulation recently issued the Notice on Eliminating Copycats of Famous Hospitals and Other Healthcare Institutions. The notice aims to eliminate from the healthcare industry copycats that are free-riding on the reputation of trade names or famous hospitals – in particular, 'Union', 'Huashan', 'Xiangya', 'West China', 'Qilu', 'Tongji' and 'Tiantan'.

SPC publishes draft judicial interpretation on trade secret protection
Wanhuida Intellectual Property
  • Intellectual Property
  • China
  • 10 August 2020

The Supreme People's Court recently published the draft Judicial Interpretation on Several Issues Concerning the Application of Law in Civil Litigation on Trade Secret Violation. The draft judicial interpretation provides further details on several matters, including what can be protected as a trade secret, what protective measures a trade secret owner should apply and how damages should be calculated.

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