No.146 May 28, 2018 |
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| Unitalen News |
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In this issue
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 SAMR: Special Crackdown on Use of Prohibited Trademarks
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Recently the State Administration of Market Regulation (SAMR) issued a notice to launch a special crack down on use of unregistered trademarks which are in violation of the prohibitive articles of China Trademark Law.
Scope of Crackdown
The use of unregistered trademarks are in violation of the prohibitive articles in the Trademark Law;
The application for such unregistered trademarks were filed since 2017;
The unregistered trademarks have been refused during trademark examination in accordance with Article 10 of the Trademark Law;
Article 10 of Trademark Law
The following words or devices shall not be used as trademarks:
(1) those identical with or similar to the State name, national flag, national emblem, national song, military flag, military emblem, military song or decorations, etc. of the People's Republic of China; and those identical with the names, emblems, names of particular venues, or names or devices of the landmark buildings of the Central State government organizations;
(2) those identical with or similar to the State names, national flags, national emblems or military flags, etc. of foreign countries, except that consent has been given by the relevant country’s government;
(3) those identical with or similar to the names, flags or emblems, etc. of international intergovernmental organizations, except that consent has been given by the relevant organization or that the use in unlikely to mislead the public;
(4) those identical with or similar to official signs and hallmarks indicating control and warranty, except that the use thereof is otherwise authorized;
(5) those identical with or simi1ar to the names or symbols of the Red Cross or the Red Crescent;
(6) those having the nature of discrimination against any nationality;
(7) those that are of fraudulent nature and are apt to cause the public to mistaken the quality or other characteristics or the place of origin of a product; and those detrimental to socialist morals or customs or having other negative influences.
The geographical names of the administrative divisions at or above the county level and the foreign geographical names well-known to the public shall not be used as trademarks, but such geographical names as have otherwise meanings or as an element of a collective mark or a certification mark shall be exclusive. Where a trademark using any of the above-mentioned geographical names has been approved and registered, it shall continue to be valid.
Measures:
The administrative authorities shall order cessation of such act and correction of the situation within a specified time limit; at the same time, public notice and administrative penalty shall be imposed. |
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| Examination Cycle for International Trademark Shortened in China
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In order to improve the examination efficiency of international trademarks designating China for territorial extension, SIPO has taken measures to shorten the examination circle from 12 months to 7 months for Madrid Agreement, and from 18 months to 10 months for Madrid Protocol. It is estimated that the 12-month examination cycle can be further shortened to 6 months by the end of July, and the 18-month examination cycle shortened to 6 months by the end of November this year.
The amount of international trademark registrations designating China has grown rapidly from 21,200 in 2016 to 26,100 in 2017, with an annual growth of 23%, ranking first among all Madrid members for 13 consecutive years. In addition to the concurrent reform and streamlining of domestic trademark application procedure, the Trademark Office attaches great importance to the equal protection of the rights and interests of foreign applicants, and accelerates the reform of the international registration procedures.
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| China Supreme Court Issued Interpretation on Issues concerning the Application of the Extinctive Prescription Rules in the General Provisions of the Civil Law of the People's Republic of China |
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On July 18, 2018, China Supreme Court Issued "Interpretation on Several Issues concerning the Application of the Extinctive Prescription Rules in the General Provisions of the Civil Law of the People's Republic of China (“the Interpretation”).
According to the Interpretation, where the prescriptive period begins after the General Provisions of the Civil Law come into force, the provision of Article 188 of the General Provisions of the Civil Law on a three-year prescriptive period shall apply. A party's claim for the application of the provision of the General Principles of the Civil Law on a two-year or one-year prescriptive period shall not be supported by a people's court. Where a party claims the application of the provision of the General Provisions of the Civil Law on a three-year prescriptive period, provided that the applicable two-year or one year prescriptive period in the General Principles of the Civil Law has not expired by the day when the General Provisions of the Civil Law come into force, a people's court shall support such a claim.
The Interpretation also stipulates that, where a party claims the application of the provision of the General Provisions of the Civil Law on a three-year prescriptive period, provided that the applicable two-year or one year prescriptive period in the General Principles of the Civil Law has expired before the General Provisions of the Civil Law come into force, a people's court shall not support such a claim. Where the cause of suspension of a prescriptive period has not been eliminated by the day when the General Provisions of the Civil Law come into force, the provision of the General Provisions of the Civil Law on the suspension of extinctive prescription shall apply.
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| SIPO’s First Consolidated Report on Patent, Trademark and GI Statistics after Restructure |
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At the Press Conference for the 3rd quarter of 2018, the State Intellectual Property Office of China (SIPO) released consolidated statistics on patents, trademarks and geographical indications for the very first time after its restructure.
As reported, in the first half of this year, the number of Chinese invention patent applications was 751,000, and of granted invention patents was 217,000 including 171,000 domestic invention patents. Among the domestic invention patents granted, 159,000 are service inventions, accounting for 93.2%; 12,000 are non-service, accounting for 6.8%. As of the end of June 2018, China's domestic (excluding Hong Kong, Macao and Taiwan) invention patents totaled 1.475 million.
In the first half of 2018, the number of trademark registration applications in China was 3.586 million; the number of examined applications was 3.065 million. As of the end of June 2018, the cumulative number of trademark applications in China was 31.428 million, with a cumulative registration volume of 19.395 million, and the number of valid registered trademarks was 16.807 million. The number of granted geographical indication collective marks and certification marks reached 4,395, of which 171 from abroad. The trademark examination cycle has been shortened from 8 months to 7 months.
In the first half of 2018, 10 applications for protection of geographical indication products China were received, 46 new GI products and 135 new enterprises using GI approved. By the end of June 2018, accumulatively 2,359 GI products are granted protection, including 2,298 domestic and 61 from abroad; 24 national GI product protection demonstration zones are built, and 8,091 enterprises are approved for use of GI signs, and the relevant output value has exceeded 1 trillion yuan.
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| China-Malaysia PPH Pilot Launched in July 2018 |
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The State Intellectual Property Office of China (SIPO) and the Malaysian Intellectual Property Office (MyIPO) launched the Patent Examination Highway (PPH) Pilot jointly on July 1, 2018 for a period of two years until June 30, 2020. |
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| China-Russia PPH Pilot Extended for 5 More Years |
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Recently, the State Intellectual Property Office of China and the Intellectual Property Office of the Russian Federation jointly decided to extend the China-Russia Patent Examination Highway (PPH) pilot for another five years from July 1, 2018 to June 30, 2023. The relevant requirements and procedures for submitting PPH requests in the two offices remain unchanged.
The China-Russian PPH pilot was launched on July 1, 2012 for a period of one year initially, and then had extended for two year more on July 1, 2013, and three year more on July 1, 2015.
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| Cases in Spotlight
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| Italian Company Represented by Unitalen Succeeds in Patent Infringement Suit through Settlement
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Selle Royal is an Italian company specialized in the production of high-end bicycles and accessories, with sales networks in more than 70 countries and regions around the world. Its products are popular among a wide range of individual cyclists and bicycle manufacturers globally.
In November 2016, Selle Royal uncovered Dongfanghong Company (the defendant) was producing and selling through the Internet bicycle saddles and related products suspected of infringing two invention patents owned by Selle Royal. Selle Royal then entrusted Unitalen to start a lawsuit before Taizhou Intermediate People's Court claiming that the defendant's conducts have constituted patent infringement, and requesting the court to order the defendant cease infringement and compensate the loss totaled 2.4 million yuan RMB.
The defendant tried two times with four invalidation actions against the two patents involved. Despite this, the court of first instance did not rule on the suspension of the trial. Meanwhile, after the unremitting efforts of Unitalen lawyers, both patents of Selle Royal have been maintained wholly, laying a solid foundation for the final handshake of the proceedings.
With the plaintiff’s two patents maintained after two rounds of invalidation, and the collegial panel having concluded initial judgement after hearing, the presiding judge organized the two sides for multiple rounds of mediation, and finally in June 2018, the two sides reached an agreement that the defendant acknowledges the infringement and promises to respect the patent rights of Selle Royal, and that the defendant will cease infringement activities and pay for the economic loss of the plaintiff.
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| Unitalen News
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| Unitalen Publishes New Book “Analysis of Typical Intellectual Property Cases”
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Unitalen new book “Analysis of Typical Intellectual Property Cases” was recently published. It was written and compiled by Unitalen lawyers, patent attorneys, trademark agents and other professionals, with Unitalen Senior Partner, Yongbo Li as the editor-in-chief.
Over years, Unitalen have successfully handled a series of IP cases with great influence, many of which had been selected into the top ten IPR protection cases by the Supreme Court or typical cases by high courts in different regions, and are innovative and pioneering. The Unitalen new book is a selection of these influential cases, for example, Tencent v. Qihoo unfair competition, Baidu v. Sogou invention patent invalidation, administrative litigation of "WeChat" trademark opposition review, Tencent v. Shanghai Xiangyou et al. trademark infringement, Wen Rui'an martial arts novel adaptation rights and unfair competition.
The book is divided in 3 parts: patent, trademark, unfair competition and other typical cases. There are totally 58 articles illustrated with pictures, presenting the contents in five sections including main purpose, case description, the pleading, the judgement, and the analysis, so as to reproduce the case in an insightful way. Especially in the analysis, the authors provide the learning through the case, judgment highlights, legal application and advice to the company.
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