The State Administration for Market Supervision recently promulgated the Interim Provisions for Prohibiting Monopoly Agreements. Although the draft provisions introduced a safe harbour clause for non-IP-related monopoly agreements, this has been removed from the final version. As debate continues as to whether to introduce a safe harbour clause to Chinese legislation, this article examines the history of the safe harbour rule and the potential reasons why it would not apply to all monopoly agreements.
The Beijing High Court recently published an extensive set of guidelines on administrative trademark cases, which are divided into two parts: procedural issues and substantive matters. Although the guidelines clarify a number of matters (eg, the possibility of bringing an action against a ruling of the National Intellectual Property Administration when such ruling was remade in accordance with an effective court judgment), they contain a number of unpleasant surprises.
China has followed the global trend of protecting graphical user interfaces (GUIs) by acknowledging them as patentable designs in its amended Patent Examination Guidelines. However, under the Patent Law, designs are patentable only when filed together with a product which embodies the design. Since GUIs and software per se are not recognised as products, GUI patentees are faced with a dilemma if they attempt to challenge software developers for merely offering software which exploits their patented GUI design.
The Cyberspace Administration of China recently released the Cybersecurity Review Measures (Draft for Comment). According to the draft, where an operator of critical information infrastructure purchases a network product or service, it must make an ex ante assessment of the potential security risks that could emerge once the product or service is put into operation and produce a security report accordingly.
Offering to sell is an independent act of patent exploitation. However, it is not necessarily established on the premise that the product is physically manufactured or actually sold. In this context, the Beijing Intellectual Property Office recently had to consider how to determine whether an accused drug falls within the protected scope of a patent, without appraising a physical product, and the criteria needed to determine whether a product is being offered for sale.
The Cyberspace Administration of China recently issued the Administrative Measures for Data Security (Draft for Comment), which include rules on the collection, storage, transfer, processing and use of data in China via websites, as well as data protection and management. Among other things, the draft measures encourage network operators that collect personal information through websites, apps and other products to formulate specific rules regarding the collection and use of such information.
The Fushun Intermediate People's Court recently ruled that, although an arbitration clause was invalid on the grounds that it allowed disputes to be resolved through arbitration or litigation, the award issued by the arbitration commission was final and binding as the company had failed to challenge the validity of the arbitration clause or the arbitration commission's jurisdiction over the dispute within the mandatory timeframe.
In 2019 the Trademark Law was rapidly revised without public consultation. This revision, which was relatively limited, aimed to address the problem caused by trademark applications made in bad faith and without the intention to use and to increase the powers of the courts in judicial enforcement. This article analyses what remains to be done and what a fifth revision of the Trademark Law should cover.
The Cyberspace Administration of China recently held a public consultation on the Provisions on the Cyber Protection of Personal Information of Children (Draft for Comment). The draft provisions set out a number of recommendations for network operators, including formulating special rules to protect children's personal information and user agreements and employing a personal information protection specialist or designating personnel to oversee the protection of children's personal information.
For foreign investors with an eye on the Chinese insurance market, obtaining an insurance intermediary licence is a good idea. However, compared with insurance brokerage licences, insurance agency licences are difficult for foreign investors to obtain. Therefore, foreign investors that wish to acquire control over a Chinese insurer should consider either setting up a new foreign-invested insurer or acquiring an existing foreign-invested insurer.
The Cyberspace Administration of China recently released the Measures on Security Assessment of Cross-Border Transfer of Personal Information (Draft for Comment). According to the draft, network operators must apply to the provincial-level cyberspace administration for a security assessment before conducting cross-border transfers. Further, network operators must record all cross-border transfers and retain the records for at least five years.
During the past five years, the Chinese courts and arbitration institutions have handled major disputes relating to reinsurance contracts. These cases prompted legislation in the reinsurance sector and drew attention to the need for more careful wording in reinsurance contracts. This article provides an overview of several essential provisions in reinsurance contracts under Chinese law.
The Ministry of Commerce of China recently announced the establishment of an Unreliable Entity List (UEL) targeting foreign entities and individuals that (among other things) fail to comply with the principles of the market economy or threaten China's national security. It is anticipated that the UEL will rely heavily on the Anti-monopoly Law, especially in relation to foreign entities with a noticeable market presence in China.
The China National Intellectual Property Administration has released the Draft Amendment to the Patent Examination Guidelines. The draft proposes revisions to both substantive and procedural aspects in preliminary examination, substantive examination and invalidation proceedings regarding patents. This article analyses the major proposed changes to patent examinations.
The China Banking and Insurance Regulatory Commission was recently formally unveiled in Beijing, marking the official launch of the new regulatory authority. This merger of the former China Banking Regulatory Commission and China Insurance Regulatory Commission is the biggest reform of China's financial regulatory system in more than 15 years and marks the start of the 'one committee, one bank, two commissions' regulation framework.
In patent infringement disputes, it is possible to narrowly construe a feature to the specific embodiment and its equivalent embodiment by arguing that a claimed feature is a functional one. The accused infringer usually adopts this strategy in its non-infringement defence to narrowly construe the scope of patent protection to obtain a favourable position in the infringement comparison. A recent case serves as a reference on how to determine the functional features in patent infringement disputes.
The China Banking and Insurance Regulatory Commission plans to abolish two of the requirements that foreign insurance brokerage companies must meet in order to conduct business in China (ie, 30 years of business operation history and $200 million worth of total assets). If this reform takes place, domestic and foreign investors are expected to have equal status when entering the Chinese insurance brokerage market.
No one wants to associate toothpaste with insect repellent, but this can happen if the same names and images have been trademarked in different classes of goods. This was the situation in which Hawley & Hazel (H&H) found itself with regard to its toothpaste brand Darlie. After Guangzhou Heiren filed the same iconic image associated with Darlie and the trademark DARLIE in several classes, H&H initiated copyright infringement and bad-faith registration claims.
The revision of the Anti-unfair Competition Law is part of the new effort to enhance the protection of intellectual property in China. It also reflects the ongoing negotiations between China and the United States on various topics, including IP protection. The revisions provide (among other things) a wider definition of a 'trade secret' and introduce the concept of punitive damages and the inversion of the burden of proof.
The Security Protection Bureau of the Ministry of Public Security, the Beijing Cyber Industry Association and Research Institute Number 3 of the Ministry of Public Security recently issued the Guidelines for the Protection of Personal Information Security on the Internet, which set out a series of measures and processes for the protection of personal information. Although the guidelines appear to be non-binding, they are likely to be treated as a statute-like norm.