No.205 August 28, 2023 |
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| The Oriental Pearl TV Tower Of Shanghai |
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| Unitalen News |
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In this issue
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 Decision of the Standing Committee of the National People's Congress of the People's Republic of China to Amend the Civil Procedure Law of the People's Republic of China |
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Order No. 11 of the President of the People's Republic of China
The Decision of the Standing Committee of the National People's Congress to Amend the Civil Procedure Law of the People's Republic of China, as adopted at the 5th Session of the Standing Committee of the Fourteenth National People's Congress of the People's Republic of China on September 1, 2023, is hereby issued, and shall come into force on January 1, 2024.
XI Jinping, President of the People's Republic of China
September 1, 2023
Attachment of the full text: Decision of the Standing Committee of the National People's Congress to Amend the Civil Procedure Law of the People's Republic of China
(Source: www.npc.gov.cn)
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| The Office of the China National Intellectual Property Administration issuing the Green Technology Patent Classification System
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In order to deeply implement the spirit of the 20th CPC National Congress on accelerating green transformation of the development mode and actively and steadily promoting the carbon peaking and carbon neutrality, to clarify the basis for statistical monitoring of green technology patents, to promote the international exchange, transfer and transformation of green technology patents, to promote innovation and patent industrialization of green technology, to promote green transformation of lifestyle and production methods, and to better serve and support the goal of sustainable development, the Office of the China National Intellectual Property Administration hereby formulates and issues the classification system.
Attachment of the full text: Green Technology Patent Classification System
(Source: CNIPA website)
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| An announcement of the China Copyright Protection Center on shortening time limit for work registration
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In order to further optimize the copyright registration service, effectively facilitate the public and promote the high-quality development of work registration, the China Copyright Protection Center will shorten the time limit for work registration as of September 1, 2023. The original time limit of 30 working days from the date of acceptance will be shortened to 25 working days. The applications for work registration filed before September 1 will still be processed under the original time limit.
The announcement is hereby made.
The China Copyright Protection Center
August 24, 2023
(Source: China copyright service WeChat platform)
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| The State Council of the People's Republic of China issuing the Opinions on Further Optimizing the Foreign Investment Environment and Increasing Efforts to Attract Foreign Investment
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The State Council of the People's Republic of China has recently issued the Opinions on Further Optimizing the Foreign Investment Environment and Increasing Efforts to Attract Foreign Investment. The measures related to intellectual property are abridged as follows:
II. Improving the quality of utilization of foreign investment
(2) The leading role of the comprehensive pilot programs for opening up the services sector shall be fully played. The high-standard international economic and trade rules shall be matched, and advanced and trail efforts shall be increased for the comprehensive pilot programs for opening up the services sector. Development of combined pledge financing of intellectual property, equity and related real assets shall be encouraged, and the standardized exploration of intellectual property securitization shall be supported. The pilot zones for share transfer of equity investment and venture capital shall be increased in an orderly manner.
IV. Continuously strengthening protection for foreign investment
(10) The administrative protection for intellectual property shall be enhanced. The administrative ruling system of patent infringement disputes shall be improved and the enforcement of administrative ruling shall be increased. Each area shall be supported to accept applications of copyrights, patents, trademarks and other intellectual property rights, relying on the intellectual property workstations at exhibitions, to provide effective infringement prevention measures. The protection of intellectual property rights in the field of procurement of medicines and medical consumables shall be strengthened, and enterprises participating in procurement activities are required to independently undertake non-violation of the Patent Law and other laws and regulations. As for products involved in intellectual property disputes, the relevant departments shall strengthen communication and consultation, and carry out procurement activities in accordance with the law; and as for products recognized as infringing a patent right by administrative rulings of the intellectual property department or by effective judgments of the people's court, the relevant departments shall timely take measures such as refusal of procurement and disqualification from selections.
(11) The administrative enforcement of intellectual property rights shall be strengthened. Infringement of intellectual property rights on foreign-invested enterprises shall be resolutely cracked down, and special enforcement actions shall be carried out against illegal acts of cross-regional and chain infringement. The rapid and coordinated protection mechanism of intellectual property rights shall be improved, processing of cases with clear facts and solid evidence shall be accelerated in accordance with the law, the online-offline integrated enforcement mechanism shall be established and perfected, and procedural requirements shall be appropriately simplified.
(Source: CNIPA WeChat Official Account)
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| Cases in Spotlight
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| Unitalen Helping an Amazon Cross-Border E-commerce Company Secure the Return of a Large Sum of Infringement Compensation
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Case Brief
In March 2023, a cross-border e-commerce company in Shenzhen suddenly found that 200,000 US dollars had been transferred from its Amazon account due to the judgment in a U.S. trademark infringement lawsuit. After acceptance of the case, Unitalen assisted in sorting out the case facts at the first time, and learned that the final default judgment for the lawsuit case had been issued already in June 2021, in which it was determined that the defendant infringed on the exclusive right of the plaintiff, U.S. WOH Company, to use the U.S. registered trade mark No. xyz, and the defendant was ordered to pay compensation of 200,000 U.S. dollars to the plaintiff. The compensation was transferred since the defendant's account reaches the full amount in March 2023.
After checking relevant case facts with the cross-border e-commerce company, we learned that the company's Amazon mailbox did not receive any pleadings, summons or judgments electronically served by the plaintiff or the court, except for an email notification that the link to the goods would be taken down for the suspected trademark infringement, but the email neither made clear the specific infringement information, nor informed the lawsuit case number.
As it has been almost 2 years since the issuance of the judgement of the case, Unitalen made an immediate response. In April 2023, we filed "a motion to set aside judgment" in the district court of Illinois to restart examination of the lawsuit. At the same time, in order to put pressure on the plaintiff, we filed a cancellatioin against the plaintiff's trademark, with the intention of providing leverage for the subsequent lawsuit and settlement negotiations, and ending the case with a settlement.
However, after we filed the "motion to set aside judgment", the plaintiff proposed to set aside examination of the "motion to set aside judgment", and applied for jurisdictional disclosure to check the document service. According to the requirements of the U.S. disclosure procedure, we continuously held meetings with the plaintiff's attorneys in a short period of 20 days, and exchanged multiple disclosure documents with the other party. In June 2023, after we exerted pressure through invalidation and infringement litigation proceedings, we took advantage of the plaintiff's weakness of inability to provide evidence for electronic service, and ultimately reached a settlement agreement with the plaintiff through several settlement negotiations. As a result, we helped the defendant company get back most of the executed compensation as judged and successively recover the economic loss.
Attorney's comments
A default judgment was issued to the defendant in this case because of missing a deadline of the defense period. According to provisions of the U.S. law, it is difficult to effectively revoke a judgment that has remained valid for two years through a motion to set aside judgment, and it is required to prove presence of sufficient and reasonable grounds and measures should be taken timely for this. A search of relevant cases showed few successful cases previously. However, in view of the fact that the plaintiff in this case did have defects in service and the psychological weakness that the plaintiff had to maintain the validity of its U.S. registered trademark, and in combination with the U.S. attorney's opinions, the Unitalen team timely formulated a strategy of "declaration of invalidation" and "restarting of lawsuit" to apply double pressure, and finally successfully realized the purpose of settlement in a short period of 2 months through cooperation and advance of the administrative procedure and the civil procedure.
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| Dispute Case of Infringement of Trademark Right Between Shanghai Wan Cui Tang Restaurant Management Co., Ltd. and Wenjiang Wu A Po Green Pepper Fish Hot Pot
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Case Brief
Shanghai Wan Cui Tang Restaurant Management Co., Ltd. (hereinafter referred to as Wan Cui Tang) is the owner of the registered trademark  under No. 12046607, registered trademark under No. 17320763, and registered trademark under No. 23986528. The approved service items include restaurants, canteens, etc. in Class 43, and are all within the validity period. On May 21, 2021, Wan Cui Tang discovered that Wenjiang Wu A Po Green Pepper Fish Hot Pot (hereinafter referred to as Wu A Po Hot Pot) used the words "Green Pepper Fish Hot Pot" in its restaurant advertisement. Therefore, Wan Cui Tang instituted a suit with the court on the grounds that Wu A Po Hot Pot had infringed on its registered trademark exclusive right, requesting that Wu A Po Hot Pot immediately stop trademark infringement and compensate Wan Cui Tang for economic losses and reasonable expenses totaling 50,000 yuan. The first instance court held that the sued actions of Wu A Po Hot Pot constituted trademark infringement, and ordered Wu A Po Hot Pot to stop the infringement and compensate for economic losses and reasonable expenses totaling 30,000 yuan. Wu A Po Hot Pot was dissatisfied and filed an appeal. The Sichuan Provincial High People's Court held in the second instance that green pepper is widely known as a seasoning for Sichuan cuisine. Due to the natural connection between restaurants, canteen services, and dish seasonings, the identification of the involved trademarks and the dish names containing the words "green pepper" is confused, greatly reducing the significance of the involved trademarks. The weak significance of the involved trademarks determines that their protection scopes should not be too broad, otherwise they will hinder the legitimate use by other market entities and affect the market order of fair competition. In this case, the words "green pepper" included in the advertisement of Wu A Po Hot Pot objectively describe the characteristic of the dish Fish Hot Pot containing green pepper as a seasoning. It is not used separately and has no intention of piggyback on popularity of the involved trademark of Wan Cui Tang, which is not easy to cause confusion or misunderstanding among the relevant public. The sued act of Wu A Po Hot Pot is legitimate and does not constitute trademark infringement. Therefore, it was judged that the first instance judgment was revoked and all litigation claims of Wan Cui Tang were rejected.
Significance
The second trial of this case clearly established the standards for determining the legitimate use of trademarks, stating the "great principle" that "rights have boundaries, and exercise thereof must be done in good faith". The second trial fully respects the general knowledge, reasonable sentiment, and common sense of the people, and upholds the legitimate rights and interests of small and micro enterprises that operate with integrity and fairness in accordance with the law, as well as the market order of fair competition.
(Case source: Supreme People's Court (Top 10 Intellectual Property Cases of Chinese Courts in 2022))
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| Case of Copyright Infringement Dispute Between Hangzhou Big Head Son Culture Development Co., Ltd. and CCTV Animation Group Co., Ltd.
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Case Brief
In 1994, LIU Zedai was commissioned by the director and others of the animation named "Big Head Son and Small Head Dad" in the 1995 edition to create frontal images of the characters "Big Head Son", "Small Head Dad", and "Apron Mom". The two parties did not sign any written agreement on the ownership of the copyright of the work. It was explicitly stated in the list of cast members in the 1995 edition of the animation: "Character design: LIU Zedai". In 2012, LIU Zedai transferred all the copyrights of three works including "Big Head Son" to HONG Liang. In 2013, LIU Zedai signed a commission creation agreement and a supplementary agreement successively with CCTV Animation Group Co., Ltd. (hereinafter referred to as CCTV Animation), agreeing that CCTV Animation owns all intellectual property rights of the three character designs, including "Big Head Son", except for the right of authorship. Later, LIU Zedai signed a statement confirming the above facts and claimed that signing the transfer contract with HONG Liang was a result of misleading. CCTV Animation also submitted a written statement signed by LIU Zedai in 1995 to the court, which confirmed that the ownership of the three character designs belongs to CCTV. Hangzhou Big Head Son Culture Development Co., Ltd. (hereinafter referred to as Big Head Son Culture) filed a lawsuit in court, claiming that CCTV Animation infringed on its copyright. The first instance court held that LIU Zedai enjoyed copyright in the three art works because the two parties did not sign a contract to agree on the ownership of the copyright. Big Head Son Culture obtained the copyright of the above-mentioned works according to the transfer contract. CCTV Animation's unauthorized use constituted infringement and should bear the liability for infringement. CCTV Animation's appeal and application for retrial were both rejected, and an appeal was filed with the Supreme People's Court in accordance with the law. After being brought up for trial, the Supreme People's Court revised its judgment and determined that the involved work was created by commission, and that the copyright and other intellectual property rights, except for the right of authorship, belonged to CCTV Animation. The judgment rejected all litigation requests from Big Head Son Culture.
Significance
This case clarifies the criteria for judging commissioned creative works, legal representative works, and special duty works, as well as the method for analyzing and identifying ownership evidence. It provides reference for the protection of the rights of copyright holders in works under special historical backgrounds and has positive significance in stimulating cultural innovation and creation, supporting the widespread dissemination of excellent cultural works, and promoting high-quality development of the cultural industry.
(Case source: Supreme People's Court (Top 10 Intellectual Property Cases of Chinese Courts in 2022)) |
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| Unitalen News
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| Unitalen Ranked on 2023 WIPR Leaders List
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Recently, the internationally renowned intellectual property media World Intellectual Property Review (WIPR) released the 2023 WIPR Leaders list, selecting leading global firms and individuals in the field of intellectual property. Unitalen Attorneys At Law, with its outstanding professional strength and high recognition in the industry, has been rated as the highest level "Outstanding Firm" in the field of trademark non-litigation and the "Highly Recommended Firm" in the field of trademark litigation. Unitalen's partner, Lawyer Ray Lei Zhao, has been selected as the highest level "Outstanding Individual" in the field of trademark non-litigation.
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| 8th Xuhui Binjiang Rule of Law Forum Successfully Held, Unitalen and Its Multiple Lawyers Awarded the "Brand Star of Intellectual Property Legal Services (2023)"
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On August 18th, the 8th Xuhui Binjiang Rule of Law Forum was grandly held at the Renaissance Hotel in Caohejing, Xuhui District, Shanghai. Beijing Unitalen Law Firm participated in this forum as a co-organizer.
At the forum, the organizer, Legal Vision, released the Guidelines for Excellent Intellectual Property Legal Services Brands (2023) for the first time. Based on declaration and investigation, in combination with comprehensive information from expert review meetings, peer evaluations, customer evaluations, and other sources, the Legal Vision "Brand Influence Law Firm" and "Brand Star" lawyer honors in the intellectual property professional field for the year 2023 were ceremoniously awarded based on professional services and brand performance. Beijing Unitalen Law Firm was selected into the list of "Brand Influence Law Firm" list by virtue of its outstanding comprehensive strength and rich litigation experience. The director and partner of Unitalen Law Firm, lawyer LI Yongbo, and partner, lawyer YAN Chunde were awarded the honorary title of "Authoritative Lawyer", the partner, lawyer HOU Yujing, was awarded the honorary title of "Master Lawyer", and the official account of "Unitalen Attorneys At Law" was awarded the "Professional We-Media Influence Award".
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