2017 Chronicle of China's IP Industry
In 2017, the IP industry of China has improved in many aspects: the 19th National Congress of the Communist Party of China stressed the importance of fostering a culture of innovation, and strengthening the creation, protection, and application of IP; China’s Civil Code was adopted and implemented, in which Article 123 regulated dominant items concerning IP and ensured the key position of IP rights; Trademark Office of SAIC released the revised Standards of Trademark Review and Trial (New Standards).
At the same time, enterprises have been busy fighting for their IP rights, including but not limited to JD, Sony, New Balance, Tencent, Guangdong Jiaduobao, Alibaba etc. With great efforts made by IPers, the year of 2017 saw tremendous changes, huge progress and positive trends!
January 2017
The case of Zhongke Lianshe (Beijing) Academy of Network Technology v. JD company concerning Infringement upon the exclusive right to use trademark
The plaintiff, Zhongke Lianshe (Beijing) Academy of Network Technology (Zhongke), brought a lawsuit against Beijing JD Century Trade Co., Ltd. (JD Company), claiming that the defendant should stop infringement upon its exclusive right to trademark and compensate for the losses it suffered as are sult.
The plaintiff is the owner of the text trademarks of "small vault xiaojinku" (No. 9787284) and"small vault" (No. 12360768) in the 35th category which was verified and approved to be used within the scope of "advertising and selling for others", and the text trademark of "Jijinhui xiaojinku" (No.12071358) in the 36th category which was verified and approved to be used within the scope of"insurance and mutual funds". The plaintiff argued that JD Company should stop infringement and make compensation because its exclusive right to use the trademark was infringed by JD Company through its sale of the fund products in the name of "JD xiaojinku" and "xiaojinku" on the website of JD Mall without permission and promotion of the said products on the Weibo in the above names.JD Company answered that, firstly, xiaojinku was a coinage with relatively weak distinctiveness,especially in the financial field; secondly, "JD xiaojinku" used by it was not similar to the trademark of the plaintiff; and lastly, JD xiaojinku service was a kind of value-added services of fund management,belonging to 36th category of financial services, due to which it was not similar goods and constituted no infringement upon trademark.
After hearing the case, both the courts of first instance and second instance ruled that the plaintiff had no legal basis to support its claims against JD Company concerning trademark infringement and rejected its claims as a result.
SPIC Releases NuPAC Platform Containing Completely Independent IPRs
On January 5, State Power Investment Corporation (SPIC) announced that China has developed a NuPAC platform with completely independent intellectual property rights. The platform has obtained the permission of the National Nuclear Safety Administration of China and the Nuclear Regulatory Commission of the United States, becoming the first nuclear reactor protection system entitled with administrative permission of nuclear safety regulatory authority in both China and the United States.
Conference of National IP Office Head Held in Beijing
On January 5, 2017, Conference of National IP Office Head was held in Beijing, with the State Intellectual Property Office (SIPO) head Shen Changyu addressing a work report named Deepen IP Sector Reform and Strengthen IP Protection and Application so as to Realize Significant Improvement in Building an IP Power Country with All Efforts. The report said that the country had over 3.47 million patent applications in 2016, up 23.8 percent year on year; the number of Chinese international patent applications filed under the World Intellectual Property Organization's Patent Cooperation Treaty hit 40,000 last year.
China’s Trademark Office Announces New Standards of Trademark Review and Trial
On January 4, 2017, Trademark Office of the State Administration for Industry &Commerce of the PRC released the revised Standards of Trademark Review and Trial (New Standards). The New Standards covers 10 parts, including review of marks which can not be identified as trademarks, review of the significant characteristics of trademarks etc. The standards of sound trademark review, the application standards of trial submission and other content has been added in the revised New Standards.
IP5 PPH Pilot Program Extended for Three Years as From January 6, 2017
The European Patent Office (EPO), the Japan Patent Office (JPO), the Korean Intellectual Property Office (KIPO), the State Intellectual Property Office of the P.R.C (SIPO) and the United States Patent and Trademark Office (USPTO) launched the patent prosecution highway (PPH) pilot program among the IP5 on January 6, 2014. Its duration was three years, and was scheduled to expire on January 5, 2017. The five Offices now decide to extend the PPH pilot program for three years, as from January 6, 2017. Related requirements and procedures can be found on the websites of the Offices.
February 2017
The case of Guangdong Camel Clothing Co., Ltd. v. Trademark Review and Adjudication Board of State Administration for Industry & Commerce of P.R.C. concerning the request of declaring the registered trademark invalid
On February 27, Beijing Higher People's Court rendered the final judgment on the case of Guangdong Camel Clothing Co., Ltd. v. Trademark Review and Adjudication Board of State Administration for Industry & Commerce of P.R.C. concerning the request of declaring the registered trademark invalid, with Taizhou Fuping Shoes Industry Co., Ltd. as the third-party of the original case
On July 27, 2015, Guangdong Camel Clothing Co., Ltd. filed an application with Trademark Review and Adjudication Board for invalidation declaration of the No. 8516416 trademark verified and approved by the Board to be used by Taizhou Fuping Shoes Industry Co., Ltd. on the 25th goods such as shoes and clothing on the grounds that the registration and use of the alleged contentious trademark were in violation of the provisions of Article 7, 30 and 45-1 of Trademark Law of the P.R.C. The Board made a decision on March 24, 2016 that there was no similarities between the alleged contentious trademark and the invoked trademark submitted by the plaintiff and the original decision on the alleged contentious trademark should be maintained.
Guangdong Camel Clothing Co., Ltd. refused to accept the original judgment and filed an appeal with Beijing Higher People's Court, requesting the court to set aside the original judgment and the sued decision so that a new decision could made by the Board. Beijing Higher People's Court ruled that, although there are designs of camel in the contentious trademark and the invoked trademark, there are relatively huge differences in terms of picture composition, colors, elemental composition,overall structure and visual effect, and that it is not easy to cause mistake among the relevant public even if they were used together on the identical or similar goods. Therefore, Beijing Higher People's Court rejected the appeal and affirmed the original judgment.
China's Trademark Application Amounts to 3.691 Million in 2016
China handled 3.691 million trademark applications in 2016, remaining world's largest for15 consecutive years. Meanwhile, Guangdong, Beijing, Zhejiang, Shanghai and Jiangsu are the top five applicants. Thanks to the implementation of the reform for trademark registration,trademark registrations increased by 28.4% in 2016, compared with 26.9% in 2015. Among all the registrations, 3.001 million were filed via Internet, representing 81.3% of the total, the percentage in 2015 is 69.3%. As of the end of 2016, valid trademark registrations amounted to 12.376 million. Each 10,000 market entities obtained 1,422 trademarks, increased by 6.5% from 1,335 in2015. It is worth mentioning that 2016 witnessed fast growth of trademark pledge registrations.
Professionals Gather in Tianjin to Discuss Strengthening Patent Protection Measures
On February 7, The Symposium of Strengthening Patent Protection Measures was held, with experts specialized in IP research, professionals of Tianjin Higher People's Court, lawyers and IP managers of enterprises attending the symposium and discussing countermeasures and steps of strengthening patent protection measures, formulating related suggestions and making good connections between the administrative enforcement and judicial protection. This described a blueprint for implementing the spirit of 2017 Tianjin Technology IP Working Conference and Several Opinions on Strengthening Patent Protection issued by SIPO.
Trademark Office Releases 2016 Trademark Applications and Registrations of Each Prefecture
On February 7, the State Administration for Industry & Commerce of the People's Republic of China(SAIC) released the statistics concerning trademark applications and registrations of each province,autonomous region and municipality. According to the data, the top five provinces or cities in terms of trademark applications are Guangdong, Beijing, Zhejiang, Shanghai and Jiangsu. SAIC carried out a set of reforms facilitating trademark registration in 2016. It opened 15 windows for applicants to filing trademark applications nearby, set up 30 local agencies to handle trademark pledge affairs, and put the first coordination center of trademark examination outside Beijing into operation. Trademark applications totaled 3,691,000, ranking first worldwide for 15 consecutive years. The facilitation reform reaps rewards.
The 3rd Revision of China’s Copyright Law is in Sight
The National Copyright Administration of China (NCAC) issued the 13th Five-Year Plan on Copyright on February. It's required to advance the 3rd revision of Copyright Law, when necessary, to establish copyright collective management organizations (CCMO) for performance,arts and other fields. The Plan begins with a review of the results achieved in the 12th Five-Year Plan. It also points out challenges facing copyright protection environment, copyright awareness of the public and copyright legalization. The Plan requires the 3rd revision should focus on the development of Regulations on Copyright Protection of Folklore and revision of Regulations for the Implementation of Copyright Law etc. It aimed at improving copyright laws and regulations.
March 2017
The case of China Iwncomm Co., Ltd. v. Sony Mobile Communications (China) Co. Ltd. concerning infringement upon standard essential patents
On March 22, Beijing Intellectual Property Court rendered the judgment of first instance on the case of China Iwncomm Co., Ltd. (Iwncomm) v. Sony Mobile Communications (China) Co. Ltd. Concerning infringement upon standard essential patents. The plaintiff, Iwncomm, is the obligee of the invention patent "a wireless LAN mobile device security and data access method for secure communication", which was incorporated into China's national mandatory standard in 2003. The defendant, Sony Mobile Communications (China) Co. Ltd., is a manufacturer of mobile communication equipment (mobile phones), including 35 kinds of mobile phones such as the L39h (Xperia Z1) involved in the case. The plaintiff claimed that the defendant used the technical solutions contained in the plaintiff’s patent claims 1, 2, 5 and 6, that the specific infringement behaviors included individually committed direct infringement and jointly committed infringement. The plaintiff requested the court to order the defendant to: (1) immediately stop using the plaintiff’s patent involved in the case, and immediately stop the production and sale of the mobile phone products using the plaintiff's patent rights and (2)make a compensation of 32,887,179 Yuan as economic loss and 474,194 Yuan as reasonable cost, a total of 33,362,373 Yuan, to the plaintiff.
The court ruled that the defendant exploited, without permission, the patent involved in the casein the processes such as the design, R&D, testing and routine test of the mobile phones involved in the case which infringed upon the plaintiff’s patent rights, due to which the plaintiff’s claim of direct infringement was established; And the plaintiff’s claim that the defendant should stop infringement shall be affirmed and the defendant shall make a compensation of 8,629,173 Yuan as economic loss and 4,74,194 as reasonable cost for right maintenance, a total of 9,103,367 Yuan, to the plaintiff.
Beijing Film and Television Copyright Expert Appraisal Committee Was Established
On March 20, 2017, Beijing Spring TV Fair (Spring Fair) opened at the Beijing Convention Center. At the Spring Fair, China's first Film and Television Copyright Expert Appraisal Committee was officially established. The committee consists of 26 experts, and its primary tasks are to accept the authentication of film and television copyright plagiarism cases entrusted by the court, and to protect intellectual property legal rights.
2017 National Brand IP Service Agencies Activity Focuses on “Together with Chongqing, Serving for Strong City”
From March 23 to 24, 2017 National Brand IP Service Agencies Activity themed with"Together with Chongqing, serving for Strong City" was held in Chongqing. Related leaders from Department of Planning and Development of State Intellectual Property Office, Chongqing Intellectual Property Office etc., attended and delivered speeches. More than 200 people attended the activity, who came from Chongqing Commission of Economy and Information Technology, Intellectual Property Office of various Chongqing districts, 24brand IP service agencies and IP service institutes.
Boao Forum for Asia Adopts IP Issues for the First Time
On March 24, the Symposium of Intellectual Property of Boao Forum for Asia Annual Conference 2017 was held successfully. It's the first time for the Forum to set and discuss the IP relevant issues. The commissioner of the State Intellectual Property Office, Shen Changyu, attended the Symposium and had an in-depth discussion surrounding the theme of "IP: Convoying Innovation" with the deputy director of WIPO, Wang Binying, the president of Qualcomm Incorporated, Derek K. Aberle, and the director of IP Research Center in Zhongnan University of Economics and Law, Wu Handong and other guests.
The First Intellectual Property Alliance Founded by Academicians Established in Beijing
On March 26, China Mining Intellectual Property Alliance was officially established in Beijing. He Manchao, the academician of Chinese Academy of Sciences (CAS), takes the chair, Song Zhenqi, the academician of CAS and Cai Meifeng, the academician of Chinese Academy of Engineering serve as vice chairmen. This is the 19th industrial intellectual property alliance established in Beijing with the support from Beijing Intellectual Property Office as well as the review and record at the State Intellectual Property Office. It is also the first key industrial intellectual property alliance founded by the academicians.
April 2017
The case of New Balance v. 5 defendants concerning trademark infringement
On April 24, the decision in writing for the imposition of a total fine of 1.7 million Yuan rendered by the Intellectual Property Tribunal of Suzhou Intermediate People's Court was served on the defendants in the case of New Balance Trading (China) Co., Ltd. v. Shenzhen NewBalance Sporting Goods Co., Ltd., Jinjiang Qingyang Niubolun Shoes Factory et al., who were the manufacturers and sellers of shoes with the imitation of N letters for the decoration of both sides of shoes infringing upon the right to special decoration owned by New Balance on well-known sporting shoes. The judge served the decision in person on the defendants refusing to carry out legally effective decision of the people's court.
New Balance is a brand with high notability in the world. On August 1, 2016, the plaintiff New Balance Trading (China) Co., Ltd. brought a lawsuit against the five defendants’ infringement upon trademark and unfair competition by false promotion in Suzhou Intermediate People's Court and applied for interlocutory injunction (acts preservation). On September 13, 2016, Suzhou Intermediate People's Court made an order that the five defendants shall immediately stop their manufacturing and sale of shoes goods with "N" letters on both sides of the shoes for decoration.However, the defendants refused to comply with the order until April 11, 2017. Therefore, Suzhou Intermediate People's Court made a decision in writing for the imposition of a total fine of 1.7million Yuan (the highest amount provided for in the laws) against the defendants’ refusal to comply with the order and served the decision on the defendants by the judge in person.
The Trademark Registration Fee Halved from April This Year
In order to effectively promote the development of the real economy, under the approval of the State Council, the Ministry of Finance, and the National Development and Reform Commission released a notice about sorting out and standardizing the relevant policies of administrative fees. According to the notice that from April 1, 2017, the charge of new varieties of plant protection, and computer software copyright registration fees are suspended, and the trademark registration fee is reduced by half.
The First China Electronic Information Industry Intellectual Property Summit Successfully Ends
On April 9, during the period of the Fifth China’s Electronic Information Fair, the First China Electronic Information Industry IP Summit & The 17th Info-Tech Patents Trend Release Conference & HIPEX 4·26 IPR Development Forum was held in Shenzhen. Leaders of Ministry of Industry and Information Technology, State Intellectual Property Office, National Development and Reform Commission, Guangdong Intellectual Property Office leaders, attended the forum and delivered speeches. Report on Patents Trend of Information & Technology (2017) was also issued on the forum.
2017 IPR Nanhu Forum Concludes in Shanghai
From April 15 to 16, in order to promote the modernization process of building intellectual property powerful country, 2017 IPR Nanhu Forum: International Conference of "New Developing Idea and the Rule of Law Modernization of Intellectual Property Rights" was held in shanghai. People from various areas, including well-known IP experts from the US, China etc., administrative officers from Sate Intellectual Property Office, State Administration for Industry & Commerce and local IP competent department and practical workers from the Supreme People’s Court of the People’s Republic of China, joined together to offer advice and suggestions for IP industry.
Elites Share Views on the 1st Congress of 2017 China-Korea IP Seminar
On April 18, “the 1st Congress of 2017 China-Korea IP Seminar” jointly held by Korea-China Intellectual Property Rights Seminar, Korea Copyright Committee and Korea University was held in Korea University. Themed by practical problems and solutions of the intellectual property between Korea and China, more than 50 attendees from universities and IP administrations of Korea and China shared the local practical problems and experiences of IP affairs.
May 2017
The case of Tencent Company v. Baofeng Company concerning infringement upon the right of dissemination via information network
On May 16, Beijing Municipal Shijingshan District People's Court pronounced the judgment on the case of Shenzhen Tencent Computer System Co., Ltd. (Tencent Company) v. Baofeng Group Co., Ltd.(Baofeng Company) concerning the latter's infringement upon the former's right of dissemination via information network in its dissemination of "the Voice of China (Season 3)". In this case, Shijingshan Court determined the amount of compensation by combination of the following factors: (1) "the Voice of China (Season 3)" with high reputation, wide influence and high commercial value in China, (2) After"the Voice of China (Season 3)" was included in the early warning list of 36 major films and TV works released by Copyright Protection Center of China and the early warning notification repeatedly issued by Copyright Protection Center of China, Baofeng Company disregarded the legal rights and interests of the others and still committed infringement by the program involved in the case during the period of hot dissemination, showing a very obvious subjective malice in its infringement and (3) A deduction can be made that Baofeng Company made a relative large amount of profit from its infringement because of the high notability of its website, the wide coverage of its advertisers and its advertisements on the programs involved in the case. It is understood that Tencent Company had issued letter of notice four times to Baofeng Company requiring the latter withdrawal of the program. However, Baofeng Company still refused to stop such infringement. The court ruled that, because the economic loss suffered by Tencent Company from Baofeng Company's infringement obviously exceeded 500,000Yuan, the upper limit of the statutory compensation amount provided for in China's Copyright Law, a discretionary judgment shall be rendered that the defendant shall make a compensation of 1 million Yuan as economic loss and 10,000 Yuan as reasonable cost (a total amount of 6.06 million Yuan) to the plaintiff in order to make up for the economic loss suffered by the obligees and to punish the malicious infringement.
China's New Trademark Registration Information Inquiry System Performs a Pilot Run
According to the requirements of Opinions of the SAIC on Vigorously Promoting Facilitation Reform of Trademark Registration, the new edition trademark registration information inquiry system started a pilot run on May 5, 2017, in order to improve the service level of China's trademark website and promote the speed upgrade of the inquiry system. The users can visit the website for trademark information inquiry and from May 5 on, the old edition website has been unavailable.
C919 Aircraft Owning Independent IP Right Commences Its Maiden Flight
On May 5, China’s first single-aisle trunk liner developed by China completely in accordance with the world advanced standards completed its maiden flight at Shanghai Pudong International Airport successfully at 14:00 on May 5, 2017. C919 owning independent intellectual property is a symbolized project of building Innovative Country, with the efforts made by the most brilliant design talents and engineering talents. The development staff, focusing on advanced aerodynamic configuration, structural materials and airborne system, planed 102 technical key problems to tackle, including aircraft and engine integration, fly-by-wire system control law, active control technology etc.
SIPO and WIPO Signs Agreement to Strengthen Belt and Road IPR Cooperation
On May 14, in the course of the Belt and Road Forum for International Cooperation, SIPO Commissioner Shen Changyu and WIPO Director General Francis Gurry jointly signed the People's Republic of China and WIPO Agreement to Strengthen Belt and Road IPR Cooperation in Beijing.
This is the first known document on Belt and Road IPR Cooperation signed between the Chinese government and an international organization. This marks the launch of a comprehensive and in depth cooperation centered on Belt and Road Initiative between the two sides, meant to promote the development of IPR in countries and regions along the Belt and Road.
Tencent Music and Universal Music Reaches an Strategic Copyright Cooperation Agreement
On May 16, Tencent Music Entertainment Group and Universal Music Group reached the Strategic Cooperation Agreement of Digital Copyright Distribution in China Mainland, jointly developing the music market in China in the future. Tencent Music will become the only partner of Universal Music's distribution business in China Mainland. Henceforth, Universal Music, Warner Music and Sony Music - three biggest music group in the world have all achieved strategic copyright cooperation with Tencent Music.
