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.”
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.
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: