NOV
Newly Amended Trademark Law Enter into Force on Nov 1
On Nov 1, the newly amended Trademark Law would come into force. This amendment involved a total of six articles, focusing on strengthening trademark use obligations, standardizing trademark agency behavior, regulating trademark malicious application for registration. On Apr 23, the Standing Committee of the 13th National People's Congress adopted a decision to amend the Trademark Law. This revision of the regulation of malicious registration mainly involved three aspects. The first was to strengthen the obligation to use the trademark and add the provision that "applications for malicious trademark registration that are not for the purpose of use shall be rejected". The second was to standardize the behavior of trademark agencies. It was stipulated that trademark agencies shall not accept the entrustment if they know or should have known that the trustors have committed malicious registration, and shall be investigated for responsibility according to law once it is found. Third, it provided penalties for malicious applications for trademark registration and malicious litigation by applicants and trademark agencies. In order to implement the Trademark Law, Several Provisions on Regulating Trademark Registration Application had been issued by the General Administration of Market Supervision in the form of Order No. 17 and would enter into force from Dec 1, 2019.
Claim of 3.7 Billion Rejected in Red Bull Trademark Case
On Nov 25, the ownership of Red Bull’s series of trademarks was ushered in an important legal judgment: the Beijing Higher People's Court of first instance rejected all the claims of Red Bull Vitamin Beverage Co., Ltd., decided that Red Bull's claim to confirm that it enjoyed the legitimate rights and interests of the "Red Bull" series of trademarks involved in the case lacked factual and legal basis. The court's also did not support Red Bull’s request to order T.C. Pharmaceutical Industry Co., Ltd. to pay 3.753 billion Yuan in advertising fees. The fee for accepting the case was 18.8068 million Yuan, and the property preservation fee was 5,000 Yuan, all paid by Red Bull. At present, the two sides had more than 20 cases under trial in Beijing, Chongqing, Foshan, Shenzhen and other places, involving trademark licensing disputes, bankruptcy liquidation, contract disputes. This lawsuit was filed by Red Bull with the Beijing Higher People's Court in 2018. The court filed the case on Aug 30, 2018 and held a hearing in private on Aug 8, 2019.
Request for Public Comments on the Implementation of Foreign Investment Bill
On Nov 1, the full text of the Regulations on the Implementation of the Foreign Investment Bill of the People's Republic of China (draft for soliciting opinions) drafted by the Ministry of Justice, the Ministry of Commerce and the National Development and Reform Commission was published. As a supporting administrative regulation of the Foreign Investment Bill, the Request provided provisions on the basic issues of foreign investment, investment promotion, investment protection, investment management, the transitional arrangements for the existing organizational forms of foreign-invested enterprises, and the legal application of investment in Hong Kong, Macao and Taiwan. The Request clearly stated that China should establish a system of punitive damages for intellectual property infringement, promote the establishment of a rapid and collaborative protection mechanism for intellectual property rights, and improve the diversified settlement mechanism of intellectual property disputes and the assistance mechanism for safeguarding intellectual property rights to strengthen the protection of intellectual property rights of foreign investors and foreign-invested enterprises. It further refined the relevant provisions prohibiting the use of administrative means to compel foreign investors and foreign-invested enterprises to transfer technology, and administrative organs and their staff to strictly protect the trade secrets of foreign-invested enterprises that they know in the course of performing their duties.
5G Congress
From Nov 20 to 23, the first World 5G Congress was held in Beijing. The Congress was co-sponsored by the Beijing Municipal Government, the National Development and Reform Commission, the Ministry of Science and Technology, and the Ministry of Industry and Information Technology, with the theme of "5G Changing the World, 5G Creating the Future". It included three parts: conference forum, exhibition, and application design unveiling competition. The Congress gathered a number of academicians, nearly 100 of the world's most influential scientists in the field of information and communications, as well as more than 30 world-famous 5G upstream and downstream enterprises, including Huawei, JD.com, Chipone, Unisoc. The participants exchanged and discussed cutting-edge technologies, industrial trends, innovation and applications in the 5G field, and created a world's top high-quality platform for 5G industrial cooperation and resource integration through conferences, exhibitions, competitions to promote the collaborative innovation, promotion, application and industrial maturity of 5G technology in the world. The Beijing Economic and Technological Development Zone also issued the 5G Industrial Planning for Beijing Economic and Technological Development Zone and its related Ten Articles of 5G Industrial Policy at the Congress.
Huawei Ban
On Nov 18, the US Department of Commerce decided to extend a temporary general license for 90 days and postponed for the third time a trading ban on existing products and services of Huawei and its affiliates in the US, to avoid the ban adversely affecting American consumers. The US Department of Commerce stated on the same day that US enterprises with a temporary general license could export, re-export and transfer specific and limited products or technologies to Huawei and its non-US subsidiaries within the next 90 days. On May 15, 2019, the US Department of Commerce added Huawei and its 68 subsidiaries to the entity list and issued a 90-day temporary general license on May 20 and Aug 19, respectively, allowing Huawei and its subsidiaries to engage in specific activities to ensure the continuous operation of existing networks in the US and to support existing mobile services in the US. The US Department of Commerce added another 46 Huawei subsidiaries to the entity list on Aug 19.
JD.com V. Tmall
E-commerce giant JD.com’s lawsuit against Tmall's had undergone a major change: two other major e-commerce companies, Pinduoduo and Vipshop, applied to the Beijing Higher People's Court to join the lawsuit as third parties. Prior to this, JD.com sued Tmall for abusing its dominant market position and claimed 1 billion Yuan. According to relevant litigation materials, JD.com applied to the Beijing High People’s Court on Sept 12, 2019, requesting to notify Vipshop and Pinduoduo to participate in the lawsuit as third parties. On Sept 26, Vipshop and Pinduoduo submitted an application to the Beijing High People’s Court, requesting to join the lawsuit as third parties. On Oct 9, the Supreme People's Court published an objection to the jurisdiction of the case online, putting JD.com's lawsuit of exclusive trading against Tmall in public view. Some analysts believed that the lawsuit between JD.com and Tmall, which had entered litigation procedure, provided a judicial perspective for the phenomenon of exclusive trading in Internet business activities that had been debated for many years but had not reached a consensus. How to define the competitive behavior among Internet e-commerce platforms and the final trial conclusion of the first anti-monopoly lawsuit in e-commerce circle, would have a vital impact on the sustained and healthy competition development of the e-commerce industry.
Well-known Trademark
On Nov 15, the CNIPA issued the Notice on Strengthening the Investigation and Handling of Well-known Trademark Protection in Trademark Violation Cases. The Notice put forward clear requirements for further strengthening the protection of well-known trademarks in cases of trademark violations: first, it is necessary to investigate and deal with illegal cases involving well-known trademarks in strict accordance with the statutory authority and time limit, and trademark violation cases involving the protection of well-known trademarks shall be under the jurisdiction of the intellectual property administration departments of counties (cities, districts) directly under the jurisdiction of the city (prefecture or state) or approved provinces, and specify the time limit for filing, preliminary verification, and verification. Second, it is necessary to effectively standardize the identification application and use of well-known trademark, through the guidance of the filing authorities to fill in the application form, to examine and verify the completeness and authenticity of evidence materials, and the business guidance and review of provincial departments to standardize the application for recognition of well-known trademark. Third, it is necessary to highlight the key points and earnestly strengthen the protection of well-known trademarks, standardize the timely protection of well-known trademarks approved in the investigation and handling of trademark violations, the invocation protection of well-known trademarks with administrative protection records, and strengthen the administrative protection of well-known trademarks with emphasis on well-known trademarks in the investigation and handling of trademark infringement and counterfeiting cases.
LG v. Hisense
On Nov 4, LG Electronics sued Hisense for patent infringement in a California district court. LG alleged that the vast majority of Hisense TVs sold in the US infringe its four patents. The lawsuit involved technologies to improve the user interface and improve data transmission speed based on Wi-Fi, including LED lamp assembly technology, user interface technology, clearer display image technology and technology to improve the data transmission rate of TV Wi-Fi. The semi-annual report of Hisense Electric Appliances in 2019 showed that under the situation of global market shocks and macro-environmental fluctuations, the company's global key markets still made great breakthroughs. During the reporting period, Hisense and Toshiba TVs together accounted for 20.9% of the Japanese market, surpassing Sony and Panasonic; the company's TV sales in North America grew by 34.26% year-on-year, of which grew by 65.08% in the US market.
Talent Sharing
On Nov 7, the Intellectual Property Court of the Supreme People's Court held the Symposium on the Construction and Development of Pluralistic Technological Fact-finding Mechanism, which reported the construction and development of diversified technological fact-finding mechanism in Chinese courts in the past five years. It also announced the completion of the National Court Technical Investigation Talent Database, the establishment of National Court Technical Investigation Talent Sharing Mechanism, and issued the Technical Investigator Work Manual (2019). The formally established National Court Technical Investigation Talent Database was prepared and built by the Intellectual Property Court of the Supreme People's Court, who brought together the Intellectual Property Court of the Supreme People's Court, the Intellectual Property Courts of Beijing, Shanghai, and Guangzhou, as well as the technical investigation officers and technical consulting experts of the intellectual property courts of Nanjing, Suzhou, Hangzhou, Qingdao, Hefei, Tianjin, Wuhan, and Zhengzhou, covering nearly 30 sub-technical areas that were common in technical intellectual property cases.
DEC
China's Statement on the First stage of Sino-US Economic and Trade Agreement
On Dec 13, the Information Office of the State Council held a press conference at which the China’s statement on the First Stage of the Sino-US Economic and Trade Agreement was issued. The statement pointed out that through the joint efforts of the economic and trade teams of China and the US, the two sides had reached agreement on the text of the First Stage of the Sino-US Economic and Trade Agreement on the basis of the principles of equality and mutual respect. The text of the Agreement included preamble, intellectual property rights, technology transfer, food and agricultural products, financial services, exchange rate and transparency, trade expansion, bilateral assessment and dispute settlement, and final provisions. The two sides agreed that the US would fulfill its commitment to abolish tariffs in stages on Chinese products and realize the transformation of tariffs from rising to lowering. At the press conference, Wang Shouwen, vice minister of the Ministry of Commerce and deputy representative of international trade negotiations, pointed out that China and the US held in-depth discussions on strengthening intellectual property protection and reached consensus in several aspects, including the protection of trade secrets, intellectual property issues related to drugs, the extension of patent validation period, geographical indications, the fight against piracy and counterfeiting on e-commerce platforms, the fight against the production and export of pirated and counterfeit products, the fight against malicious trademark registration, and the strengthening of intellectual property judicial enforcement and procedures.
Official Release of Geographical Indications of China
On Dec 3, CNIPA officially issued the official Geographical Indication of the People's Republic of China and launched an electronic platform for accepting applications for the protection of geographical indication products. The Geographical Indication of PRC is the official sign established by CNIPA to indicate that the geographical indication products using this GI has been registered and approved by CNIPA. According to China's Trademark Law, Patent Law and other relevant provisions, CNIPA registers special geographical indications for the record and brings them into the protection of official signs. The Measures for the Administration of the Use of Special Geographical Indications were being openly solicited for public opinions and would be formulated and promulgated separately by CNIPA. The electronic acceptance platform for geographical indication product protection applications was launched, which integrated identity registration and certification of applicants, submission of application materials, preliminary examination of provincial intellectual property administration departments, experts' online technical review organized by CNIPA, online feedback review opinions, online announcement. It could provide omni-directional and full-process services for geographical indication product protection applicants, such as consulting policies and regulations, notice announcement, and online application.
Several Provisions on Regulating Trademark Registration Applications Enter into force on Dec 1
The State Administration of Market Supervision and Administration issued Several Provisions on Regulating Trademark Registration Applications, which would enter into force as of Dec 1, 2019. On April 23, the Standing Committee of the National People's Congress examined and adopted the decision to amend the Trademark Law, which would come into effect on Nov 1, 2019. To implement the provisions of the Trademark Law, there are 19 provisions on regulating trademark application for registration from four aspects: First, to emphasize that the principle of good faith must be followed in applying for trademark registration and engaging in trademark agency business; Second, to enumerate the factors to be considered in the examination of malicious applications for trademark registration; The third is to severely punish malicious trademark registration and illegal agency behaviors; The fourth is to optimize trademark registration services. A fine of three times the illegal proceeds and a maximum of no more than 30,000 Yuan would be imposed on malicious trademark applicants; a maximum fine of 100,000 Yuan would be imposed on trademark agencies that helped to engage in malicious applications, and the terms of suspending its acceptance business would be serious. The provisions also provided for other measures to deal with malicious trademark registration, in order to form a long-term mechanism to severely crack down on malicious trademark registration.
BIP Asia
On Dec 5, the 9th The Business of IP Asia Forum opened in Hong Kong. Speaking at the opening ceremony, Margaret Fong, president of the Hong Kong Trade Development Council, said that mainland China is still the engine for the growth of global intellectual property applications. Hong Kong is famous for its commerce, trade, finance and innovation, and it will continue to be the center for the generation and trading of intellectual property rights, including technology transfer, licensing, franchising and copyright trading. Hong Kong can provide important support and links with the international market in intellectual property activities in mainland China and even in Asia. Carrie Lam, chief executive of the Hong Kong Special Administrative Region, said that the SAR government had submitted a bill on trademark registration to the Legislative Council, and the judiciary set up a roster of intellectual property experts in May to facilitate the appointment of expert judges in intellectual property cases. Hong Kong would launch a new patent grant system in two weeks' time.
Operation Kunlun
Since the launch of Operation Kunlun, by the end of November 2019, public security organs across China had cracked 27,800 cases of crimes involving food and drug rings, and intellectual property rights, smashed more than 11,300 black factories, workshops and manufacturers, and destroyed more than 5,200 criminal gangs. 48,000 criminal suspects were arrested, with a total value of 28.3 billion Yuan involved, and 132 criminal gangs were eliminated. Since July, the Ministry of Public Security had deployed public security organs throughout China to carry out Operation Kunlun to crack down on food and drug ring crimes. Local public security organs, in conjunction with market supervision departments, agricultural departments and rural governments, and ecological environment departments, had launched fierce attacks against crimes in the field of food and medicine ring, and intellectual property rights, focusing on a number of major and important cases, effectively cracking down on the arrogance of criminals. On Dec 3, the Ministry of Public Security organized public security organs across China to simultaneously carry out the Kunlun Operation, and the promotion and display of the results of the joint action on food safety in 141 cities.
Concentrated Sentencing
From Dec 9 to 13, the Intellectual Property Court of the Supreme People's Court held a concentrated sentencing week to publicly announce sentences on some benchmarking cases altogether. During the event, the Intellectual Property Court heard six cases in public, and invited deputies of the National People's Congress, members of the CPPCC National Committee, special consultants, special supervisors, etc., and broadcasted live in texts on platforms such as the China Court Network, the official Weibo of the Supreme People's Court. On Dec 9, the Intellectual Property Court of the Supreme People's Court publicly sentenced two civil and administrative cases involving the same patent. After hearing the two cases, the appeals were rejected and the original verdicts were upheld. In the trial of these two cases, the Intellectual Property Court for the first time explored the simultaneous trial of administrative cases and civil infringement cases involving the same patent, in order to give full play to the function of the court, made a beneficial attempt to realize the docking of patent administration and civil litigation procedures and adjudication standards.
WIPO Ruling
On Dec 18, the Hangzhou Internet Court issued a public verdict on the dispute over the ownership and infringement of the network domain name between the plaintiff Li and the defendant Banco BPM Societ à per Azioni, and found that Li’s request to confirm that his claim that he had the legitimate rights and interests to the domain names bancobpm.com and banco-bpm.com was lack of factual and legal basis, and rejected his claim in accordance with the law. The case was the first network domain name ownership and infringement lawsuit heard by the Hangzhou Internet Court because the domain name holder was not satisfied with the ruling of the international domain name dispute resolution provider WIPO. Banco BPM Societ à per Azioni was an Italian enterprise and the disputed domain name was an international top-level domain name with the suffix ".com", and the dispute had been dealt with by the WIPO Arbitration and Mediation Center. The plaintiff filed a lawsuit with the Hangzhou Internet Court because he was not satisfied with the decision of the WIPO Arbitration and Mediation Center.
New Plant Varieties
On Dec 11, the Supreme People's Court publicly sentenced Cai Xinguang v. Guangzhou Runping Commercial Co., Ltd. on the infringement of new plant varieties right. The case was the first dispute over the right of new plant varieties accepted by the Intellectual Property Court of the Supreme People's Court. Cai Xinguang, the owner of a new plant variety, sued the supermarket Runping for selling Sanhong honey pomelo fruit, which constituted an infringement on the right of new plant variety, requiring the latter to bear tort liability in accordance with the law and pay 500,000 Yuan in compensation. The court of original instance did not support Cai Xinguang's claim. The judgment of the second instance found that Cai Xinguang's claim that the fruit of the alleged infringement of honey pomelo was the breeding material of a new variety of Sanhong honey pomelo plant did not support that the sales behavior of Runping constituted infringement, and the appeal was rejected and the original judgment was upheld. The judgment in this case played an important guiding role in the definition of the scope of protection of new plant variety rights, and the examination and determination of the alleged infringement.
Libra Chain
On Dec 2, the Beijing Internet Court held a press conference on Libra Chain application access technology and management norms with the theme of regulating the use of blockchain, and issued the technical and management norms of Libra Chain application access. Since its establishment one year ago, the Beijing Internet Court had actively explored and established the Libra Chain electronic evidence platforms filed by the State Internet Information Office, and took the lead in adopting blockchain intelligent contract technology to realize the implementation of "one-click filing". It had become a model for the application of blockchain technology in the judicial field. The Beijing Internet Court adhered to the construction concept of neutrality, openness, security, and controllability, vigorously promoted the deep integration of blockchain technology and judicial innovation, and gradually explored its Libra Chain model of "one chain, dual use, three regulations, and four managements". Next, the Beijing Internet Court would explore more specific application scenarios of the blockchain.
