No.177 April 28, 2021 |
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| Unitalen News |
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In this issue
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 China's First Official International Trademark Information Inquiry System Went Live
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The China National Intellectual Property Administration of China (CNIPA) introduced the launch and operation of the EU trademark inquiry system at the press conference on April 26. The system is China's first official international trademark information inquiry system.
The system can provide the public and innovative and entrepreneurial entities with fast, convenient, and comprehensive EU trademark information inquiry services. The launch and operation of the system fills in gaps in overseas trademark inquiry tools.
On September 25, 2020, the CNIPA and the European Union Intellectual Property Office (EUIPO) signed a China-EU Trademark Information Exchange Agreement, realizing for the first time China's trademark data exchange and cooperation with other countries. As of the end of March 2021, the EUIPO has provided about 1.947 million pieces of trademark information to the CNIPA, including contents such as trademark basic information, information on goods and services, priority information, classification information, and process information.
(Source: CNIPA website)
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| White Paper: Intellectual Property Protection in China in 2020
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On April 25, the CNIPA issued the White Paper: Intellectual Property Protection in China in 2020, in which the practice, progress and results of intellectual property protection in China in 2020 were summarized from many aspects.
In terms of protection results, China's results of intellectual property protection in 2020 were widely acknowledged by innovative entities in various countries and the international community. Social satisfaction on intellectual property protection set a new record, reaching 80.05 points (percentage system). According to the 2020 Global Innovation Index Report released by the World Intellectual Property Organization (WIPO), China ranked 14th.
In terms of system construction, in 2020, China revised and unveiled 4 laws and regulations related to intellectual property rights, issued 6 judicial interpretations related to intellectual property protection, promulgated more than 20 papers concerning implementation of policies related to intellectual property protection, and published 2 national standards related to intellectual property protection.
In terms of approval and registration, the white paper pointed out that the number of all kinds of intellectual property approvals and registrations has increased continuously, and the examination quality and efficiency have been significantly enhanced. In 2020, 530,000 patents for invention were granted in China, and the number of patents for invention per 10,000 people reached 15.8. The number of trademark registrations was 5.761 million, and domestic applicants filed 7,553 applications under the Madrid Agreement Concerning the International Registration of Marks, ranking third in the Madrid Union. The total number of copyright registrations was 5.039 million. The examination period for high value patents was reduced to 14 months, and the average examination period for trademark registration was reduced to 4 months.
In terms of international cooperation, the white paper pointed out that in 2020, China continued to deepen exchanges and cooperation with international organizations such as the WIPO and intellectual property institutions in various countries and regions. The Beijing Treaty on Audiovisual Performances entered into force, and the Regional Comprehensive Economic Partnership Agreement and the China-EU Geographical Indications Protection and Cooperation Agreement were officially signed, promoting the development of the global intellectual property governance system in a more equitable and rational direction.
China released the first white paper on intellectual property protection in 1994. The white papers on intellectual property protection have been compiled and released annually for more than 20 years since 1998.
(Source: CHINA Official WeChat Account)
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| China's Patent Applications and Authorizations in Countries along "the Belt and Road" Route Increased
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The number of published patent applications was 6,198, and the number of authorized patents was 4,245 . It is reported that the number of China's patent applications and issuances in countries along "the Belt and Road" route increased in 2020.
Data shows that in 2020, China's patent applications were filed in 22 countries along "the Belt and Road" route, and the number of published patent applications increased by 17.1% year-on-year. China obtained 3,395 published patent applications in South Korea, ranking first in all application destination countries. Singapore, Vietnam, Philippines, and South Africa ranked second to fifth, respectively. In 2020, the number of issued patents of China in countries along "the Belt and Road" route increased by 19.3% year-on-year, and 26 countries along the route were involved.
In 2020, China's patent applications and authorizations in countries along "the Belt and Road" route cover all technical fields. The number of published applications in the field of digital communication was 1,435 and accounted for 23.2%, making digital communication rank first in the technical fields of patent applications of China in countries along "the Belt and Road" route. Meanwhile, the number of issued patents in the field was 455, making the field rank first in the technical fields of the issued patents of China in countries along the "Belt and Road" route and achieving a year-on-year increase of 38.7%. Computer technology and electrical equipment of machines & electrical energy ranked second and third respectively in the technical fields in the aspects of patent application and patent authorization.
Data shows that countries along "the Belt and Road" route have enhanced their patent layout in China. In 2020, 74 countries along "the Belt and Road" route filed patent applications in China. The number of applications of patent for invention was 23,000, achieving a year-on-year increase of 3.9%, which is higher than the year-on-year growth rate of foreign applications of patent for invention in China. In 2020, 71 countries along "the Belt and Road" route obtained 13,000 issued patents for invention in China.
(Source: China Intellectual Property News)
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| Cases in Spotlight
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| Polycom vs. XYLink Copyright Infringement Litigation Concerning Video Conferencing Software
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Case Summary：
Case number: (2017) Jing 73 Min Chu No. 1249
Plaintiff: Polycom, Inc.
Defendants: Beijing Xiaoyuzaijia Science and Technology Co., Ltd.
Beijing XYLink Science and Technology Co., Ltd.
Beijing Danbo Brothers Computer Technology Co., Ltd.
Cause of action: dispute over copyright infringement concerning computer software
Key point: rules of infringement determination for computer software in the field of videoconferencing
The plaintiff, Polycom, Inc., discovered in 2015 that the copyright of its video conferencing software was infringed by the companies concerned, and then communicated with Unitalen and planned to file a lawsuit to protect its rights. The Unitalen team conducted a thorough investigation and pushed forward the work with authorization given by Polycom. The case was placed on file in the Beijing Intellectual Property Court in July 2017. After more than ten hearings and talks, the court opened a court session and made the first-instance judgment in July 2020. The defendants were not satisfied with the judgment and appealed to the Supreme People's Court. After the second-instance interrogation by the Supreme People's Court in December 2020, the defendants withdrew the appeal. The Supreme People's Court ruled that the withdrawal of the appeal was allowed in January 2021, and thus the first-instance judgment came into force. This case lasted for nearly 6 years, and the legal proceedings alone lasted for nearly 4 years. Our client Polycom finally won the case and successfully protected its legitimate rights.
Abbreviature of adjudication:
1.In the case where the source code and the object code submitted by the plaintiff reflected inconsistent work scopes and the completion time for the source code could not be determined, the object code for which the completion time can be determined or the source code that is identical to the above object code and actually enters the object code after being compiled should serve as the basis of the plaintiff's work in the determination of substantial similarity.
2.In the case where the defendants refused to submit or failed to accurately submit the source code of the alleged infringing computer software, the presumption that the software of the plaintiff and the software of the defendants are substantially similar should usually be made based on a precondition, that is, the plaintiff can prove that the object codes of the two are identical or similar, or the object code of the alleged infringing computer software includes specific content of the computer software claimed by the plaintiff, or the two are identical or substantially similar in terms of software results or the like.
3.The proportion of substantially similar parts does not affect the determination of nature of the behavior but is merely a consideration for the subsequent determination of infringement severity.
Significance：
The parties in this case are all well-known enterprises in the field of video conferencing, and multiple software works of the right holder and multiple alleged infringing software of the defendants were involved. Although the proportion of substantially similar parts in the works of both parties was low, the determination of the existence of infringement was not affected. The court determined the amount of compensation in accordance with the statutory upper limit on the basis of comprehensive consideration of the evidence in the case. The analysis of relevant issues in the judgment of this case can provide experience for the trial of such difficult and complex cases, and this case was selected as one of the top ten typical science and technology innovation cases of Beijing Intellectual Property Court on the 21st World Intellectual Property Day.
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| The Cross-Class Similarity Determination of Trademarks for Lubricating Oil and Motorcycles Finally Leads to the Invalidation of 12-Year Registered Trademark by the Supreme Court in the Retrial!
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Case Summary：
Huai'an Hairun Petrochemical Co. Ltd. (Hairun Company) applied for registration of the disputed trademark on goods "Industrial oil; Motor oil; Emulsifying oil; White oil; Solvent oil; Lubricating oil; and Fuel oil" and the like in Class 4, on June 6, 2005, and was approved on November 14, 2008.
Huaihai Holding Group Co. Ltd. (Huaihai Company) cited its prior trademark No. 4489518 "淮海HUAIHAI and device" registered on goods "Electric bicycles, Electric tricycles, Motorcycles" in Class 12 and trademark No. 313958 "淮海HUAIHAI江蘇徐州 (JIANGSU XUZHOU) and device" on goods "Motorcycles" in Class 12 and filed an invalidation application of the disputed trademark.
Upon examination, the Trademark Review and Adjudication Board (the TRAB) determined that the disputed trademark constitutes confusingly similar trademark to the cited trademark which were used on the same or similar goods. Thus, the disputed trademark was ruled to be invalid. Hairun Company was dissatisfied with the decision and filed an administrative litigation with the Beijing Intellectual Property Court, the court of first instance, requesting to revoke the TRAB’s decision. After examination, the Court announced that although the disputed trademark was composed of the character "淮海", which was completely contained in the two cited trademarks and constituted a similar trademark, the goods "Industrial oil; and Lubricating oil" and the like approved for use by the disputed trademark and the goods approved for use by the cited trademark had great distinctions in function, use, marketing channel and consumer group, and they did not constitute similar goods. The judgment of the first instance revoked the TRAB’s decision and maintained the disputed trademark. Huaihai Company appealed to the Beijing High People's Court, the court of second instance, but the court decided to uphold the judgment of the court of first instance.
Huaihai Company refused to accept the second-instance judgment and appealed to the Supreme People's Court for a retrial, and entrusted Unitalen to participate in the retrial proceedings on its behalf. Unitalen lawyers collected the relevant evidence and made arguments, which were finally adopted by the Supreme Court.
The Supreme Court Judgment:
Both the courts of the first and second instances held that the lubricating oil and motor oil in Class 4 designated by the disputed trademark and the goods such as tricycles, and motorcycles in Class 12 designated by the two cited trademarks of Huaihai Company did not constitute similar goods, which did not violate Article 28 of the original Trademark Law. After the trial, the Supreme Court held that lubricating oil and motor oil are spare parts for tricycles and motorcycles, often sold in motorcycle parts markets or garages. The two were connected to a certain degree and determined as similar goods. The judgments of the first and second instances were revoked, and the original TRAB's ruling to invalidate the disputed trademark was upheld.
Typical Significance:
The retrial judgment in this case clarified that when determining whether the disputed trademark and the cited trademark constitute similar trademarks on similar goods, and whether it is likely to cause confusion and misunderstanding by the relevant public, in addition to the similarity degree of the trademark logo and the similarity degree of the goods, factors such as the distinctiveness and popularity of the cited trademark, as well as the subjective intention of the applicant for the disputed trademark should also be considered. Regarding the similarity degree of goods, even if the related goods belong to different classes in the Table for Differentiating Similar Goods and Service, they shall be determined as similar goods if they are used by collocation and are highly related in terms of function, use, consumer group, and marketing channels, etc. In the meantime, the relevant comments on the defense of stabilizing the market order in the retrial judgment are of reference significance for similar cases.
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| Unitalen News
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| Unitalen Was Invited to be the Vice Chairman Enterprise of China Medical Equipment Intellectual Property Alliance
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On April 10, 2021, the founding meeting of China Medical Equipment Intellectual Property Alliance and China Medical Equipment Intellectual Property Development Forum was successfully held in Beijing. Unitalen invited to become the vice chairman enterprise of the first council of the Alliance, and Unitalen IP consultant Cao Dongmei was elected vice chairman of the first council of the Alliance.
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| Unitalen Top 10 IP Cases of 2020
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On the occasion of World IP Day, here we have selected ten representative cases from the numerous patent and trademark cases of Unitalen and share them with peers from all circles.
★Patent Cases
TOP1 Retrial of infringement dispute over invention patent "Shark Fin Antenna" between Cao Guilan et al. and Chongqing Lifan Automobile Sales Co., Ltd., and Chongqing Lifan Passenger Vehicle Co., Ltd. et al.
TOP2 Retrial of dispute over determination of non-infringement of patent right of design "Cup (milk cup)" between Uni-President (China) Co., Ltd. and Xie Xiaoping
TOP3 Case of Sougou, Inc. invalidating the patent for invention "Touch Operation" of Baidu, Inc.
TOP4 Patent invalidation between M-I Co., Ltd. and a certain company in Hebei
TOP5 Administrative litigation concerning the invalidation of the invention patent for a kitchen ventilator between Robam Appliances and CNIPA and a certain company
★Trademark Cases
Top1 Administrative investigation and handling of Technogym trademark counterfeiting case in Nantong (One of Top Ten Law Enforcement Cases in Jiangsu Province)
TOP2 Retrial of administrative litigation on invalidation of trademark "富麗真金 and device" between Hunan Fullrich (Chinese name as "富麗真金") Textiles Company and Hunan Fu-li-Zhen-Jin (Chinese name as "富麗真金") Furniture Co., Ltd.
TOP3 Trademark infringement regarding "Ferrari" between Ferrari and Changsha Falali Wine Trading Co., Ltd, Changsha Enzuo Wine Commercial House, and Leng Jun, etc.
TOP4 Second-instance trial for the determination of non-infringement of using the characters of "微信支付(WeChat Pay)" by Tencent
TOP5 Trademark invalidation on LAFITTE series trademarks between CHATEAU LAFITE ROTHSCHILD and SCEA CHATEAU LAFITTE
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| Unitalen Shanghai Branch Signed a Cooperation Agreement on "IP Teaching and Research Practice Base" with Shanghai University Law School/IP School
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On April 21, 2021, the signing and unveiling ceremony of the "IP Teaching and Research Practice Base" between Shanghai University Law School/IP School and Unitalen Attorneys at Law Shanghai Branch was held in Unitalen Shanghai Branch.
At the ceremony, Yuan Zhenfu, Deputy Dean of the Shanghai University Law School/IP School, and lawyer Luo Suhua, signed a strategic cooperation agreement between the parties. The Deputy Dean and lawyer Qian Fang inaugurated the "Shanghai University IP Teaching and Research Practice Base".
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| Zhongguancun IP Protection Center Visited Unitalen
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On April 22, 2021, Zhang Huiming, Director of the New Material Industry Pre-Prosecution Service Department of Zhongguancun IP Protection Center, and his group, visited Unitalen. Unitalen partner and Director of Consultant Department, Zhu Guodong, together with Director of Domestic Process Department, Li Lu, and others participated in the discussion.
Director Zhang Huiming gave a detailed introduction and explanation of the time limit advantages, application process, key points of invention materials, and common problems of the Protection Center's patent pre-prosecution. At the same time, he gave answers to related questions raised by Unitalen's business staff. Both parties have conducted in-depth exchanges on issues such as how to make good use of the rapid patent pre-prosecution channel.
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| 2021 "5·10 China Brand Day" Beijing Trademark Brand Development Forum Was Successfully Held
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On May 8, 2021, the 2021 "5·10 China Brand Day" Beijing Trademark Brand Development Forum, hosted by the Beijing Intellectual Property Office and undertaken by the Beijing Trademark Association was held in Beijing.
Zhao Lei, Executive Deputy Secretary-General of Beijing Trademark Association and partner of Unitalen, announced the online launch of the "Beijing Time-honored Enterprise Trademark Monitoring and Early Warning Platform", through which the Beijing Trademark Association and the Beijing Time-honored Brands Association will jointly provide point-to-point support and services to Beijing time-honored enterprises to promote the revitalization of those time-honored brands.
Yu Zehui, President of Beijing Trademark Association and Chairman of Unitalen Partners Conference, introduced the important role that the Beijing Trademark Association plays in assisting Beijing's enterprise brands strategy. The association will promote the Beijing brands to the world by cultivating trademark management talents for enterprises, promoting Beijing brands, and regularly holding international trademark forums in Beijing.
Focusing on the theme of "Using the Well-known Trademark System to Protect Well-known Brands", Unitalen partner and lawyer Zhang Yazhou analyzed the status and causes of the increasing proportion of trademark infringement cases related to well-known trademarks, made a detailed interpretation of influential cases of well-known trademark protection in recent years, and further put forward advice on the protection of well-known trademarks.
At the forum, several well-known experts in the field gave speeches on topics such as "China Brand Trademark Strategy" and "Focusing on Dual Circulation, Leading New Consumption", and put forward valuable opinions and suggestions on the ways brands rise under the new social pattern. The participants responded positively and enthusiastically, and the forum was a complete success.
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