Laws and Regulations
CNIPA Reply on “Whether Shape of Goods identical to the Graphics of Registered Trademarks of Similar Category of Goods Constitutes Infringement of Right to the Exclusive Use of the Registered Trademark”
CNIPA has issue a decision as to whether the sale of goods shaped in the same way as a registered trademarks of others constitutes infringement of that trademark. CNIPA was considering whether the trademarks of Chanel and Van Cleef & Arpels had been infringed by products in the shape of their marks. CNIPA held the marks are well known and distinctive. They have formed a unique correlation with the rights holders, and the relevant consumers close associate the trademarks with the rights owners. Using the graphic pattern of those registered trademarks as the shape of the goods effectively carries the purpose of identifying the source of the goods, which is likely to cause the relevant public to misunderstand as to the source of the goods. Such behaviour is caught under Article 76 of the Trademark Law Implementing Regulations, which states: "The use of a sign which is identical or similar to another person’s registered trademark on the same or similar goods as the name or decoration of the goods, thus misleading the public, constitutes an infringement of the exclusive right to use a registered trademark provided by Article 57(2) of the Trademark Law.”
Beijing Intellectual Property Court stations staff at trade show
Date: 6 Sep 2021
In an interesting innovation, the Beijing Intellectual Property Court stationed judge and staff at the China International Fair for Trade in Services (CIFTIS) 2021. Several judges and judicial assistants were selected to establish judicial service workstations at the Beijing National Convention Center and in the Shougang District. These workstations worked with other departments to provide a comprehensive platform for the protection of intellectual property during the fair.
The workstations mainly provided services in three areas: 1) Providing consultation services and promoting the rule by law; 2) Accepting and mediating complaints of infringements according to the laws of China; 3) Providing legal guidance regarding non-compliant conduct relating to intellectual property inside the exhibition hall, as a joint action with other administrative organs.
SPC Releases Model Cases for the Judicial Protection of Intellectual Property Rights in Seed Industry
Date: 9 Sep 2021
On 7 September 2021, the Supreme People’s Court (SPC) released the first batch of model cases for the judicial protection of intellectual property rights in the seed industry. This release is one of the steps taken by the SPC to enhance the nation’s policy to rectify the intellectual property protection in relation to the seed industry and to promote the revitalization of that industry.
The 10 model cases released include 7 civil cases, 1 administrative case, and 2 criminal cases. Varieties involved include major crops such as corn, rice, and wheat; and economic crops such as pepper and pear trees.
All these cases share the following characteristics:
1) Higher compensation is given for intellectual property infringement cases in the seed industry, giving protection to the innovator’s economic benefit in the industry. The accuracy for the calculation of damages is improved to fully reflect for the loss suffered by the rights holder.
2) Increased criminal sanctions in accordance with the law, and crimes involving seeds are given strict punishment. Severe punishment for crimes endangering the safety of the seed industry, crackdown on both the origination and sale of counterfeit agricultural products, and maintaining the orderly operation of the seed industry, to create a rule by law environment where nobody dares or is willing to commit infringement.
3) Upholding the judicial concept in favour of the protection of rights and solving the difficulty of breed identification in infringement cases. Lowering the evidential difficulty that the rights holder face by: conducting a more comprehensive fact-finding, applying both common sense and professional knowledge in seed industry, and shifting the burden of proof in appropriate circumstances.
4) Regulation of new application in relation to new plant varieties and promoting the improvement for the scope of protection of protected varieties.
The ten model cases are:
- Henan Goldoctor v Beijing Doneed and Henan Academy of Agricultural Sciences, dispute of infringement of new plant variety rights (河南金博士种业股份有限公司诉北京德农种业有限公司、河南省农业科学院侵害植物新品种权纠纷案)
- Jiangsu Jindi Seed Technology Co.v Jiangsu Pro-Cultivation Field Agricultural Industry Development Co., dispute of infringement of new plant variety rights (江苏省金地种业科技有限公司诉江苏亲耕田农业产业发展有限公司侵害植物新品种权纠纷案)
- Jiangsu Tomorrow Seed Technology Co. v Xingshui Jinmancang Seed Co., dispute on infringement of new plant variety rights (江苏明天种业科技股份有限公司诉响水金满仓种业有限公司侵害植物新品种权纠纷案)
- Sichuan Lutan Zhicheng Seed Industry Co. v Luzhou Taifeng Seed Industry Co., dispute of infringement of new plant variety (四川绿丹至诚种业有限公司诉泸州泰丰种业有限公司侵害植物新品种权纠纷案)
- Xiamen Huatai Wugu Seed Co. v Jiuquan Sanbao Seed Industry Co. and Guanshankou Village Committee from Jinfosi Town, Suzhou District, Jiuquan City, Gansu Province, dispute of infringement of new plant variety rights (厦门华泰五谷种苗有限公司诉酒泉三保种业有限责任公司、甘肃省酒泉市肃州区金佛寺镇观山口村村民委员会侵害植物新品种权纠纷案)
- Jiangsu Hi-Tech Seed Technology Co. v Qin Yonghong, dispute of infringement of new plant variety rights (江苏省高科种业科技有限公司诉秦永宏侵害植物新品种权纠纷案)
- Zhengzhou Fruit Tree Research Institute of the Chinese Academy of Agricultural Sciences v BaiLing Fruit Plantation from District 27 in Zhengzhou City, dispute of infringement of new plant variety rights (中国农业科学院郑州果树研究所诉郑州市二七区百领水果种植园侵害植物新品种权纠纷案)
- Heilongjiang Sunshine Seed Industry Co. v Plant Variety Review Committee, administrative review of the rejection of the application for new plant varieties (黑龙江阳光种业有限公司诉植物新品种复审委员会植物新品种申请驳回复审行政纠纷案)
- Jiuquan a Yu Agricultural Technology Co., Production by Mr. Wang, Sales of counterfeit and shoddy products (酒泉某豫农业科技有限公司、王某某生产、销售伪劣产品案)
- Mr Sai, counterfeit trademark registration (赛某某假冒注册商标案)