No.184 November 28, 2021 |
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| Unitalen News |
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In this issue
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 CNIPA and IPO UK Published Guidelines for Intellectual Property Protection
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The China National Intellectual Property Administration (CNIPA) Commissioner Shen Changyu hosted a meeting online with Comptroller General Tim Moss of the Intellectual Property Office of the United Kingdom (IPO UK) on November 23, 2021. After the meeting, the two offices published guidelines for intellectual property protection in China and in UK.
The《Guidelines on Trademark Protection and Enforcement in China》edited and translated by the CNIPA details the procedures of the trademark protection system in China, including trademark registration and application, examination, opposition, infringement, and relief, and provides practical information such as online retrieval, online application, and trademark protection strategies. The《Protecting Your Intellectual Property in the UK》edited and translated by the IPO UK covers intellectual property fields including copyright, patent, and trademark, and introduces the influences of Brexit on the intellectual property system in UK. The two guidelines will provide guide and suggestions on intellectual property protection for IP users in China and UK.
Attachment 1: Guidelines on Trademark Protection and Enforcement in China (English version).pdf
Attachment 2: Protecting Your Intellectual Property in the UK (English version).pdf
(Source: CHINA Official WeChat Account)
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| China and Denmark Signed the First Intellectual Property Cooperation Memorandum
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Shen Changyu, the China National Intellectual Property Administration (CNIPA) Commissioner, and Sune Stampe Sorensenthe, Director General of the Danish Patent and Trademark Office (DKPTO) met online recently and signed the "Memorandum of Understanding on Cooperation between the CNIPA and the DKPTO" on the meeting.
Shen Changyu said that the CNIPA and the DKPTO had frequent interaction and continuously deepening exchange and cooperation in recent years. The first Memorandum marks the beginning of a new phase of cooperation between the two offices. It is expected that the two sides will continue to carry out legal policy exchanges based on the Memorandum, promote cooperation on the Patent Prosecution Highway (PPH), further deepen the pragmatic cooperation between the two offices in the field of intellectual property rights, and jointly provide more efficient and convenient intellectual property services for innovation entities in China and Denmark.
Sune Stampe Sorensen said that for a long time, the two offices have had a close relationship and fruitful achievements through the bilateral cooperation. Sune Stampe Sorensen also expressed the hope that both sides could take the signing of Memorandum as an opportunity to jointly promote the development of the intellectual property undertakings of the two countries and provide a more friendly environment for the IP users in the two countries.
(Source: CHINA Official WeChat Account)
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| China and Mexico Signed a New Version of the Intellectual Property Cooperation Memorandum
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Shen Changyu, the China National Intellectual Property Administration (CNIPA) Commissioner, and Alfredo Rendon, Director General of the Mexican Institute of Industrial Property (IMPI) met online and signed a new version of the Memorandum of Understanding on cooperation on December 7, 2021.
Shen Changyu stated that the IMPI was the first IP government institute in Latin America with which the CNIPA established a cooperative relationship and now is an important partner of the CNIPA. Shen Changyu represented the hope that both sides will continue to maintain close communication under the framework of the new version of the Memorandum of Understanding, further deepen the cooperative relationship, and provide better services for IP users in both countries and the world.
Alfredo Rendon said that Mexico pays high attention to the cooperation with the CNIPA and hopes to further expand the cooperation scope and deepen cooperation with China and strengthen interaction with China in multilateral occasions so as to jointly perfect the international IP system.
(Source: CHINA Official WeChat Account)
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| The 12th Meeting of China-ASEAN Heads of Intellectual Property Offices Held
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On November 25, the 12th Meeting of China-ASEAN Heads of Intellectual Property Offices kicked off online and the China National Intellectual Property Administration (CNIPA) Commissioner Shen Changyu chaired the meeting. Rowel Barba, Rotating Chairman of the ASEAN Working Group on Intellectual Property Cooperation (AWGIPC) and Director General of the Intellectual Property Office of the Philippines (IPOPHL), the ASEAN Secretariat and the heads of intellectual property offices of ten ASEAN members were present.
Shen Changyu said that this year marks the 30th anniversary of the establishment of dialogue relationship between China and ASEAN, and that in this year China and ASEAN officially announced that the comprehensive strategic partnership between China and ASEAN was established. The Chinese government recently issued the Outline for Building a Nation of Stong Intellectual Property (2021-2035) and the National Plan for Protection and Application of Intellectual Property Rights During the 14th Five-Year Plan Period. The AWGIPC revised and upgraded the ASEAN Action Plan on Intellectual Property Protection 2016-2025 in this year. The China-ASEAN intellectual property cooperation is continuously deepened and expanded, and more results are achieved.
Rowel Barba said that the COVID-19 epidemic has brought challenges to both China and ASEAN members. In this context, China and the ASEAN members have gone hand in hand and now become each other's largest trading partners. Rowel Barba looks forward to continuing to maintain a good cooperative relationship with the CNIPA in the future, and to continuously improving cooperation.
(Source: CHINA Official WeChat Account)
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| Cases in Spotlight
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| Chongqing Intellectual Property Office Handled the Patent Infringement Dispute Cases concerning imoo Watch Phone
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Case Brief:
The petitioner Guangdong Genius Technology Co., Ltd. obtained the patent right of the design entitled "Watch Phone (Z6)" (Patent No.:ZL201930053063.7) on July 5, 2019, and the patent right of the utility model entitled "A Smart Wearable Device with Cameras" (Patent No.:ZL201821610111.4) on July 9, 2019.The patent rights mentioned-above were legal and valid when the petitioner submitted the request for infringement dispute resolution. The Chongqing Intellectual Property Office placed the case on file according to law on August 14, 2020.
The petitioner held the opinion that the respondent Chongqing Readboy Company infringed the petitioner's lawful rights and interests by offering to sell and selling the patented products concerned without the petitioner's permission. The petitioner took the technical solution of Claim 7 of the patent No.ZL201821610111.4 and the Design 1 in the patent No. ZL201930053063.7 as the basis of claim, and requested the office to order the respondent to stop offering to sell or selling the products concerned immediately.
The respondent argued that the claim of petitioner should be rejected according to law for following reasons: the patents concerned are merely prior designs and that the respondent is merely a sales agent who knows nothing about the dispute over the products concerned and has a real and legal supply of products.
Upon examination, the Chongqing Intellectual Property Office made an administrative decision on December 10, 2020, determining that the respondent's defense of legal supply is untenable, and that the acts of offering to sell and selling the products concerned constitute infringement. The company was ordered to stop relevant infringing acts immediately.
Expert Comments:
This case is exemplary for four reasons. First, the patentee provides proofs of infringements of both the utility model and design for determination of facts of infringement, which is complex and difficult. Second, evidence for determining whether the acts of offering to sell and selling the products concerned of the respondent infringe patent rights of the utility model and design and whether the products are from a legal source must be full and accurate. Third, an administrative decision is a way to quickly and efficiently deal with a patent dispute, and the key points for making an administrative decision on patent infringement lie in determination of technical facts in a patent dispute and of legitimacy of evidence. Fourth, the patentee of the present case is an enterprise in Guangdong, and the respondent is an enterprise in Chongqing. During case handling, the Chongqing Intellectual Property Office made a fair decision based on facts in accordance with the procedures. This is a perfect example of how to implement the speech of president Xi Jinping at the 25th group study session of the Political Bureau of the Central Committee of the CPC regarding the mechanism for improving coordination in IPR-related work, the demand of prohibition of regional protectionism, and improvement of cross-regional intellectual property protection. (XIE Xiaoyong, deputy secretary-general (in charge) of China Intellectual Property Society)
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| Beijing Intellectual Property Office Handled the Patent Infringement Dispute Cases concerning Design "Electric Self-balancing Scooter (Mini)"
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Case Brief:
The petitioner Ninebot (Beijing) Science & Technology Co., Ltd (hereinafter referred to as Ninebot) obtained the patent right of the design entitled "Electric Self-balancing Scooter (Mini)" (Patent No.: ZL201530316168.9) in January 2016, which was legal and valid when the petitioner submitted the request for infringement dispute resolution.
The petitioner found that self-balancing scooters sold by respondents including Hangzhou Jinfeng Smart Technology Co., Ltd., Hangzhou Jieze Trade Co., Ltd, and Shenzhen Feitewei Technology Co., Ltd. on e-commerce platforms fall within the protection scope of the patent concerned. Then, Ninebot filed a request for patent infringement dispute resolution with the Beijing Intellectual Property Office. The Beijing Intellectual Property Office accepted and heard the series of cases according to law on March 18, 2019 and placed twenty cases on file directed to the respondents and model numbers of the accused infringing products. The respondents argued that the accused infringing products are neither identical with nor similar to the patent concerned and thus do not constitute infringement for the following reasons: the accused infringing products are greatly distinguished from the patent concerned, the identical features of the accused infringing products and the patent concerned are not the essential features of the patent concerned because they have been disclosed in the prior designs, and the visual effect of the whole design is more influenced by the distinguishing features instead of the identical features of the accused infringing products and the patent concerned.
Upon examination, the Beijing Intellectual Property Office deemed that products like self-balancing scooters commonly comprise a body, wheels, a control rod, and a handle. The ratio of a diameter of wheel to a length of leg-controlling rod in the patent concerned contributes to the small and portable look of the scooter, which is absent in the prior designs and pertains to an innovative feature in design. Such a small and portable design may impress general customers and has prominence. The accused infringing products are substantially identical to the patent concerned in design features of relevant parts. According to the principle "Overall Observation and Comprehensive Judgment", the accused infringing products and the patented products are not clearly distinguished from each other and have substantially the same visual effect, and thus pertain to similar designs. The Beijing Intellectual Property Office determined that the acts of the above respondents are infringing and ordered the respondents to stop selling the products that infringe the patent right of the design concerned immediately.
Expert Comments:
This case relates to mass infringement occurred on e-commerce platforms. The Beijing Intellectual Property Office placed the case on file according to law and handled the twenty cases relating to infringement of the same patent right in the administrative region. According to the principle "Overall Observation and Comprehensive Judgment", it was determined that the accused infringing products and the patented products have substantially the same visual effect, and thus pertain to similar designs. The Beijing Intellectual Property Office timely made the administrative decision. In recent years, infringement cases relating to Internet sales happen from time to time. The hazards of such cases and the difficulty of rights protection for patentees in such cases are non-negligible and have become problems to be solved in intellectual property protection in China. The fast and efficient handling of the series of cases has referential significance for handling of such cases in future. (CHEN Suning, researcher of Jiangsu Intellectual Property Research Center)
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| Changchun Administration for Market Regulation Investigated and Punished Acts of Infringing the Registered Mark "哈藥"
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Case Brief:
The trademarks "哈藥" No.10484474, No.14419610, and No.3126576 are registered by Harbin Pharmaceutical Group on goods such as tonics, medicines for human purposes, ointment, and traditional Chinese medicinal preparations, goods such as vitamin preparations, tonics, and Royal jelly for pharmaceutical purposes, and goods such as raw material drug and powder injections, respectively. The exclusive right to use these trademarks terminates on May 27, 2023, July 6, 2025, and June 13, 2023, respectively.
On October 24, 2019, the Administration for Market Regulation in Changchun, Jilin province inspected the warehouse rented by the party concerned, namely, Changchun Pharmaceuticals Sales Co., Ltd., and found a large amount of suspected infringing drugs. Upon examination, on April 26, 2018, the former Trademark Review and Adjudication Board of State Administration for Industry and Commerce ruled that the trademark "哈總" was invalidated for the reason that it was similar to the trademark "哈藥". The legal representative of the former registrant of trademark "哈總", namely, Jilin Hazong Pharmaceuticals Group, told this matter to salesmen of Hazong. The party concerned knew perfectly well that the trademark "哈總" was ruled to be invalidated, but still purchased 389,440 boxes of drugs marked with text "哈總" from companies including Jinlin Yihong Pharmaceutical Co., Ltd in April and May 2019. As of October 24, 2019, the party concerned sold 170,340 boxes of drugs with a total sales amount of 683,800 yuan, and 219,100 boxes of drugs were not sold.
On March 16, 2020, the office handling the case determined that the acts of the party concerned constitute infringing acts under Article 57.3 of the Trademark Law, ordered the party concerned to stop the infringing acts immediately according to Article 60.2 of the Trademark Law, confiscated the infringing goods, and imposed an administrative penalty of 500,000 yuan. The illegal acts of companies including Jinlin Yihong Pharmaceutical Co., Ltd would be settled as a separated case.
Expert Comments:
Determination of whether a trademark is a similar trademark is one of the key points in determination of whether the trademark is an infringing trademark in a trademark infringement case. The party concerned in this case knew perfectly well that "哈藥" was a famous trademark, but still purchased drugs having the trademark "哈總" that is similar to the registered trademark "哈藥" for sales. Such acts may easily make consumers confused about the source of goods and they may mistake the infringing goods as goods of Harbin Pharmaceutical Group or hold an opinion that the infringing goods have a certain relationship with "哈藥". The office handling the case investigated and punished the infringer timely with correct application of laws, effectively safeguarding legal rights of the trademark register and ensuring medication safety. (YAO Huanqing, deputy director of the Civil and Commercial Laws Research Center of Renmin University of China)
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| Unitalen News
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| Unitalen Selected as 2021 Tier-1 Company by Asia IP
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Recently, the result of 2021 patent research and selection published by the international IP journal Asia IP was revealed. Unitalen was selected as the tier-1 company in China in fields of patent application and patent litigation by virtue of the outstanding performance in the field of Intellectual Property and good reputation!
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