SPC Releases Details of Anti-monopoly and Anti-unfair Competition Cases Dealt with by Courts
The Supreme People's Court has held a news conference to release details of the anti-monopoly and anti-unfair competition cases dealt with by the people's courts in recent years.
From 2018 to 2020, the national courts received a total of 14,736 unfair competition civil cases (including both first and second instance), of which 13,946 were concluded, an average annual increase of 18%; and a total of 158 anti-monopoly civil cases (including both first and second instance), of which 189 were concluded, i.e. on average, more than 60 concluded cases annually.
From 2008 to 2020, the national courts received a total of 897 anti-monopoly civil cases, of which 844 were concluded. The number of concluded cases rose from six in 2008 to 107 in 2020.
The Court listed ten typical anti-monopoly and anti-unfair competition cases:
SAMR Released Proposed Amendments to National E-commerce Law (Draft for Comment)
On 31 August, the State Administration for Market Regulation, SAMR, issued draft amendments to the E-Commerce Law of the People's Republic of China for public comment. The amendments are aimed at strengthening e-commerce laws. The deadline for comment was 14 October 2021.
The proposed amendments relate to only two Articles, 43 and 84, and deal with the following four issues:
The time within which an IP owner must take action after a seller has filed a successful counter-notification has been extended from 15 days to 20 days.
The second issue relates to the possible losses that may be suffered by the platform operator and adds a mitigation provision: if the business operator using the platform provides a guarantee to compensate it for any loss caused by potential intellectual property infringement, the e-commerce platform operator may temporarily suspend the measures it has taken.
The following provision has been added: if a business operator using the platform falsely declares that it has not infringed, causing the rights-holder’s losses to increase, the liability for compensation is to be doubled.
In Article 84, the legal liability for an e-commerce platform operator’s failure to take necessary measures in relation to IP infringement has been increased: "if the circumstances are particularly serious, it may be prevented from carrying out relevant e-commerce business activities until its operating license is revoked.”
BOLON Protected as Well-Known Trademark
In 2014, Shenzhen Huashang United Investment Co., LTD. (Huashang) registered the trademark BOLON (disputed trademark registration) in respect of mobile phones and other goods in Class 9. Xiamen Yarui Optics Co., LTD. (Yarui) filed an application for invalidation of Huashang’s registration on the basis of its pre-existing registration of the mark BOLON in respect of sunglasses and other goods. The Trademark Review and Appraisal Board found in favour of Yarui and declared the disputed trademark registration invalid. Huashang filed an administrative lawsuit to the Court.
The Beijing Intellectual Property Court held that Huashang’s BOLON trademark was virtually identical to Yarui’s prior registered trademark in terms of text, pronunciation, and overall appearance. Further, Yarui’s trademark was well-known in relation to "sunglasses”. The "mobile phones" and other goods in relation to which Huashang’s trademark had been registered are goods in daily use by the same consumer groups that use sunglasses and other goods in respect of which Yarui’s mark was registered. The registration of Huashang’s trademark would, therefore, be likely to cause confusion to the relevant public and damage the interests of the trademark owner. Huashang’s claim was dismissed.
2014年，深圳市华商联合投资有限公司（下称 “华商公司” ）申请注册 “BOLON”商标（诉争商标）。厦门雅瑞光学有限公司（以下简称“雅瑞公司”）对该商标提出无效宣告申请，原国家工商行政管理总局商标评审委员会认定雅瑞公司该项主张成立，对诉争商标予以无效宣告。华商公司向法院提起行政诉讼。
First Patent Infringement case involving protection of a Microorganism: Shanghai Finc Bio Tech Inc. Wins on Appeal
Shanghai Finc Bio Tech Inc. (Finc company), a research and development, production and marketing enterprise, was the owner of an invention patent (No. 201310030601.2) for a specific strain of edible fungi: "new pure white hypsizigus marmoreus strain, Finc-W-247". The strain had the advantages of a short cultivation and culture period, a high single yield, a long preservation period, and a high degree of edibility. It was also suitable for large-area planting.
Finc company found that Tianjin Lvshengpengyuan Agricultural Science and Technology Development Co., Ltd. (Lvshengpengyuan) and Tianjin Hongbin Hesheng Agricultural Technology Development Co., Ltd. (Hongbin Hesheng) were, without authority, producing and selling allegedly infringing products in the Beijing Xinfadii Agricultural products wholesale market. It brought a patent infringement action in the Beijing Intellectual Property Court.
The Beijing Intellectual Property Court held, on the basis of expert evidence provided by relevant professional institutions, that the allegedly infringing products fell within the scope of the patent involved. The products were identified as those of the Defendants as the outer packaging was marked with the Defendants’ trademarks. The Court ordered Lvshengpengyuan and Hongbinhesheng to pay compensation to Finc company for economic loss in the sum of 1 million yuan for economic loss (approx. US$155,000) and 84,175 yuan (approx. US$13,000) for reasonable expenses. The Defendants appealed to the Supreme People's Court, which upheld the first instance ruling.