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This is the first Chinese case relating to GUIs since they were acknowledged as patentable designs in The court's judgment should clarify issues such as the determination of a GUI infringement and the calculation of compensation. In principle, registered trademarks should be used in the exact form in which they were registered. However, occasionally a rights holders may alter its registered mark eg, where there is a change in branding or shifting market needs.
Unfortunately, this is not risk-free. If a registered trademark is altered in such a way that its distinctive features change, the rights holder could lose its right to the mark or be unable to enforce it. The opinion is intended to broaden the scope of external trademark examinations and addresses outsourcing, the application procedure, registration certificates, the online and sole-examiner systems, information availability and classification.
The new measures stipulate rules for the application, examination, approval, supervision and opposition of registrations, and were inspired by the precedent opinions on domestic geographical indication registrations. The Supreme People's Court recently published its opinion on how to promote the 'three-in-one' system for civil, administrative and criminal cases involving IP rights in courts nationwide. The development of the three-in-one system is a positive and welcome step.
However, the development of the basic people's court having first-instance jurisdiction over ordinary IP rights cases will have significant consequences that are worth examining.
Sections & Committees
The IP Rights Tribunal recently upheld its first-instance ruling in a decision over the manufacture and sale of counterfeit packaging for food seasoning. Highlighting the advantages of China's new three-in-one IP practice, the tribunal defined the boundary between 'counterfeiting registered trademarks' and 'selling illegally manufactured representations of registered trademarks' and identified the circumstances for complicity.
A recent trademark infringement case demonstrates that evidence of establishment and prior use of a business and trade name is sufficient against claims of similarity. This case analyses and clarifies the period and range of prior use, as well as the term 'certain influence', and serves as a point of reference for similar cases. The patent for SEB SA's Actifry product — a fryer that can automatically coat food with oil — has been the subject of numerous invalidation requests. In a September decision, the Patent Re-examination Board recognised the invention as a technological breakthrough and maintained the patent's validity.
Real Property Law Section
According to publicly available records, this was the first time that the board based its decision in a patent invalidity proceeding specifically on the concept of breakthrough technology. In an ongoing infringement and unfair competition dispute regarding the computer games World of Warcraft and Warcraft of the State , the Guangzhou IP Court recently granted an injunction to be enforced until the date on which the final judgment takes effect. The injunction prevents the operation and distribution of the defendants' computer game on the grounds that it would reduce market shares and harm the plaintiffs' business reputation.
The Beijing High People's Court recently upheld a decision to prohibit further production or distribution of a television series that was found to constitute copyright infringement. The decision highlights the purpose of the Copyright Law to protect original works and the judiciary's policy to enhance IP protection, after the court explained the methodology for finding 'material similarity' between literary works and instructed on differentiating an idea from an expression.
The Supreme People's Court recently determined that the naming of apartment blocks as 'Star River Garden' constituted infringement due to a likelihood of confusion. The court did not order a complete prohibition against use of 'Star River Garden', but ruled that buildings yet to be developed and sold must not use the name. The verdict protected the trademark owner's interests to the extent allowed by the law, while minimising the harm against the public interest.
The Shanghai High People's Court recently upheld a first-instance judgment dismissing an appeal to invalidate a conflicting exclusive trademark licence, despite finding that the defendant was not a third-party licensee acting in good faith. The court found insufficient evidence of conspiracy or intent to damage the claimant's interests and upheld the contractual right of both parties to use the disputed trademark.
The Beijing IP Court recently established an internal Speedy Trial Panel for administrative litigation cases concerning the review of trademark application refusals. Trademark applicants can now apply to the court for a summary procedure, which will halve their legal fees and allow them to adduce evidence at the court hearing. This procedure will greatly improve the court's trial efficiency, allow judges to gain a full understanding of a case's background and be more convenient for involved parties.
The Shanghai High People's Court recently issued a new regulation introducing some noteworthy changes regarding jurisdiction over civil IP cases in Shanghai. Under the new regulation, some high-level patent cases must bypass the first-instance jurisdiction of the IP courts and be heard directly by the high court. However, questions have arisen over whether this exception is compatible with the Supreme People's Court provisions on the IP courts' jurisdiction. Of the 10 circumstances listed in the interim measures in which a business can be deemed to have seriously violated the law, three pertain to trademark and unfair competition law.
Blacklisted businesses will be a target for supervision and administration and will incur various penalties. It can sometimes be difficult or even impossible for a rights holder to obtain qualified evidence of infringement or the amount of damages that it has incurred. However — as demonstrated by a recent Taizhou Intermediate Court case — where evidence is likely to be destroyed or difficult to obtain in future, the party concerned can apply to the court to preserve evidence during the trial.
While both options have their pros and cons, applications filed with the CTMO seem to have a slight advantage overall, particularly regarding application amendments, examination times, trademark enforcement and the extension of a trademark to similar products and services.
As in most countries, registration is the quickest and most cost-effective way to obtain trademark protection in China. However, a party may occasionally fail to register a trademark and another party may file or register the same trademark. If the owner of the unregistered trademark has no prior right that could invalidate the opposing trademark, there are still several options available. While design patents can easily be obtained in China, precautions must still be taken — particularly before filing an application.
Two recent high-profile cases involving foreign companies provide an opportunity to reflect on such precautions and consider how innovation-driven businesses should tailor their design patent filing strategies to guarantee protection. The Hangzhou Internet Court was recently inaugurated. It has first-instance jurisdiction over a range of disputes, including contract disputes arising from online shopping services and small loans, disputes over internet copyright ownership and infringement, and product liability claims for goods purchased online.
This move comes after the Supreme People's Court piloted a programme in May which granted the Hangzhou Railway Transport Court jurisdiction over five categories of internet-related civil cases. View recent newsletter. Confirm Manage account. Practical approach: our accumulated experiences in thousands of cases and with nationwide courts and numerous administrative agencies enable our professionals to bring clients practical solutions by effective use of all legal tools.
Contributing offices Beijing. Exception in determining functional features in patent infringement disputes China 17 June 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. Darlie toothpaste versus Darlie insect repellent: trademark squatting and bad-faith registration China 10 June 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.
Regal Knitwear Co. v. Labor Board :: U.S. 9 () :: Justia US Supreme Court Center
Trade secrets: second amendment to Anti-unfair Competition Law China 03 June The revision of the Anti-unfair Competition Law is part of the new effort to enhance the protection of intellectual property in China. Trademark Law revised to combat squatters and counterfeiters China 27 May In the China Trademark Office launched a consultation for the fourth revision of the Trademark Law, which will enter into force in November State Council revises regulations for import and export of patented technologies China 06 May The State Council recently amended the Regulations on the Administration of Technology Import and Export.
Significance of taking global view on prior art when assessing inventiveness China 29 April A recent case concerning a culinary utensil invention may serve as a point of reference in assessing technical teaching. Andreas Stihl registers orange and grey colour combination as trademark China 22 April Colour combinations have been registrable as marks since the Trademark Law was amended in Patent enforcement: administrative or judicial?
China 08 April Against the backdrop of China's changing IP landscape, the administrative enforcement of patents remains a valid option. Sober outcome for brandy manufacturer found guilty of infringing 3D trademark China 25 March The Ouhai District People's Court in Wenzhou recently affirmed the significance of taking a global view when assessing the similarities between an allegedly infringing product and a 3D trademark. SPC categorically denies extension of trademark registration China 18 March In a recently published case, the Supreme People's Court reaffirmed that the reputation that a prior mark has built up may be extended to a later mark of the same applicant.
Zhejiang court awards Stokke Rmb2. Owner of unregistered well-known trademark granted Rmb3 million in damages for infringement China 17 December In the Beijing IP Court rendered a groundbreaking decision by awarding the owner of an unregistered well-known trademark Rmb3 million in damages for infringement.
SPC's retrial ruling for Christian Dior's 3D mark encouraging, but ambiguities remain China 03 December The Supreme People's Court recently held a public hearing on the retrial of the administrative litigation concerning the refusal of Parfums Christian Dior's international 3D trademark application. Beijing IP Court enlists jurors with technical expertise in patent administrative proceedings China 19 November The Beijing IP Court handles a substantial number of cases each year. Balancing patent protection and disclosure China 12 November The Patent Law provides that a patent's claims must be based on the description, which is a key mechanism devised to balance protection and disclosure under the law.
TRAB releases analysis of its decisions that were overruled in court proceedings China 05 November The Trademark Review and Adjudication Board TRAB recently released an analysis of its decisions which were overruled by the courts in , in which it observed that the ratio of court decisions rendered against its own adjudications in the first instance and on appeal has increased each year. Submission of supplementary experimental data in patent practice China 22 October The submission of experimental data after the filing date also known as post-filing data in support of the patentability of inventions has long been debated in the Chinese patent community.
Official fees for patent applications cut China 15 October The State Intellectual Property Office recently announced that a number of official patent application fees would be waived as of 1 August Customs seizure of patent-infringing products China 08 October Requesting Customs to seize export products on grounds of patent infringement can be a potent legal tool against exporters. Beijing High Court applies strict criteria regarding trademark use evidence China 01 October Too many trademarks are filed in China for the purpose of trading them as a commodity for profit.