Category Archives: Unfair competition

NOVARTIS Awarded Injunctive Relief in Trade Secret Action in China

Posted on by
novartis

(By You Yunting) According to reports, in February 2014, Shanghai No.1 Intermediate People’s Court approved plaintiff NOVARTIS’s application requesting the court to order an injunction ruling so as to protect its legal rights and interests in a trade secret litigation.

According to reports, NOVARTIS claimed that the defendant should not disclosure, use or allow another party to use the 879 documents on its trade secret lists that shall keep secret.

For intellectual property infringement, China’s supreme People’s Court may also set a temporary injunction on judicial interpretations of the Patent Law, Trademark Law and Copyright Law; we have previously provided posts discussing related systems in other areas of intellectual property law, such as patent preliminary injunction, copyright injunction and litigation injunction. With regard to trade secrets, however, no particular injunction is set on judicial interpretations of the Anti Fair Competition Law.

READ MORE

Shall Silk Street Undertake Compensation Liability to LOUIS VUITTON MALLETIER for Trademark Infringement?

Posted on by
silk street

(By Luo Yanjie) Abstract:  Market-managers should fulfill their duty to exercise reasonable care to cease trademark infringement. “Intentionally facilitating an infringement by another person or party of an exclusive right to use a registered trademark including through acts such as storage, transportation, postage, concealment and similar” shall be deemed as an infringement of the exclusive right to use a registered trademark.

Our website once introduced a post that the Name on the American Notorious List Could Also be the Well-known Trademark in China. Actually, Silk Street is not a company that sells fake goods, buta market consisting of many small shops. It is undeniable that the market of Silk Street was once listed alongside the Pirate Bay in the notorious market by USTR because it has sold too many fake products. Considering there are many fake products in Silk Street, the market manager shall be found liable. In today’s post, we would like to introduce and discuss a case where the market manager was found liable for its shops’ selling fake goods.

READ MORE

Ctrip was Fined RMB 1.5 Million by China NDRC for Imposing Train Ticket Insurance

Posted on by
ctrip

(By You Yunting) Recently it is at the peak passenger flow of Chinese Lunar Spring Festival in China. Billions of people would take train back hometown. Therefore, Chinese governments enhanced its suppression and punishment to illegal acts relevant to train tickets purchase. The day before yesterday, the Chinese National Development and Reform Commission published a notice (note: the link is in Chinese):

   Some companies, who sell airline tickets and train tickets but who had raised arbitrary fees and prices at the peak passenger flow, were got severe punishment. Tieyou.com under Ctrip.com was fined 1.5 million yuan due to its imposing an insurance fee counting from 10 to 20 yuan in selling train tickets. Now Tieyou. Com accepts such punishment and changes compulsory insurance purchase into an optional one.

READ MORE

Why VICTORIA’S SECRET could not Prevent Selling a Parallel Imported Genuine Product Online in China?

Posted on by
维多利亚的秘密

(By You Yunting) VICTORIA’S SECRET is the largest American retailer of lingerie whose products does not sell on the Internet in China. Considering the fact that a Shanghai-based company sold its products on the Internet in China and confessed that it was the unique designated general distributor in China, VICTORIA’S SECRET brought the Shanghai-based company to the court on the grounds of trademark infringement and unfair competition.

Introduction to the Case:

Plaintiff: VICTORIA”S SECRET STORES BRAND MANAGEMENT, INC．(the “VICTORIA’S SECRET”)

READ MORE

Is Evasi0n 7.0 Illegal to Install Software for iOS Jailbreak Device?

Posted on by
evad3rs

(By You Yunting) Recently, Evad3rs released a new jailbreak tool called Evasi0n7.0 for Apple’s iOS 7 with Chinese name “太极7”. Due to Evasi0n 7.0 forcing Chinese jailbreak users to the default installation of TaiG app store in China, all public opinions on domestic Internet websites are criticism-oriented and most reports stated that Evasi0n 7.0 was a counterfeit software tool.

The principal Pod2g of Evad3rs team today expressed his opinions on Twitter that Evad3rs have decided to remotely disable the default installation of TaiG app store in China for further investigations on the piracy issue. As an intellectual property lawyer, I paid great attention to this issue. I hope this post has broached several legal problems as follows.

READ MORE

Why did the Courts Determine Google Receive a Prior Right in its Pre-approved China Enterprise Name?

Posted on by
01300000044935126051590609706

(By You Yunting and Wang Ting) Abstract: Generally, before registration, an enterprise never receives corresponding protection for its enterprise name. However, in relation to its pre-approved enterprise name before registration, the pre-approved enterprise name shall be provided appropriate protection.

Today, we will introduce a typical case touching upon this issue, specifically, the process of approving an enterprise name under the establishment of a foreign-invested company. In this case, Google successfully defended itself against a Chinese enterprise, and finally won rights in the Chinese transliteration of its name, written in Chinese as“谷歌” and pronounced “gu-ge”.

READ MORE

How to Determine the Competent Jurisdiction for Online Infringement?

Posted on by

(By Luo Yanjie) Abstract: The Supreme People’s Court’s decision concerning jurisdiction in terms of determining the domicile of a transit server seems rather amiss against the principle of the doctrine of the plaintiff accommodating the defendant. The place where a plaintiff discovers infringing content should be the final choice of jurisdiction in cases involving network and online infringement. Unfortunately, laws and judicial interpretations in our country do not currently make a distinction between the right of goodwill and a legal person’s right of reputation.

READ MORE

China’s Telecom Anti-Monopoly: What Troubles is the China National Development and Reform Commission Meeting?

TM截图未命名

(By You Yunting) According to media reports, the officer in charge of the China National Development and Reform Commission (the “NDRC”) in a recent statement was quoted as saying that the NDRC had always, and would continue to supervise the monopoly issues in relation to broadband access provided by China Telecom and China Unicom, and that the NDRC suffered from various reactions when it announced its investigation into China Telecom and China Unicom at the end of 2011. He also said that currently the 10G of bandwidth provided by China Telecom and China Unicom had been extended to 100G, and that it would still urge China Telecom and China Unicom to rectify this issue within a period of three to five years.

READ MORE

Why QQ Pinyin suffered due to Unfair Competition from Sogou Pinyin?

TM截图未命名

(By You Yunting) Abstract: Although the Advertising Law stipulates that advertisements may not make excessive use of superlatives in advertising products and services, a business operator using absolutist phrasing and imagery alone is insufficient to find one guilty of unfair competition. Although it is true that many methods of advertising on the Internet are not yet clearly defined in the laws, if a company’s methods would be considered to go beyond those of a normal business practice, it can be assured that those operators may face the possibility of lawsuits and possible criminal actions.

READ MORE

Infringing Goods shall not be Determined as Well-Known Goods

图片1

Abstract: Under the circumstances of prior trademark rights on the same goods, determining similar trade name used by another person as the special name belonging to a well-known commodity shall be limited. Furthermore, the courts shall necessarily review the ownership of prior trademark as the fact of a case.

(By Luo Yanjie) The special name belonging to a well-known commodity is a protective approach for an unregistered trademark. In particular, the special name shall have no severability itself; otherwise, it shall be limited. In today’s post, we will introduce a case with this element with the following analysis:

READ MORE

Could Milk Powder Manufacturers Win the Lawsuits Against NDRC’ s Vertical Monopoly Penalty?

Posted on by

(By You Yunting) According to Chinese National Development and Reform Commission’s (“NDRC”) announcement, recently NDRC carried out anti-monopoly investigations into milk powder manufacturers and imposed fines on multiple offenders. When combined this announcement with the second instance court’s decision on Beijing Rui Bang Co., Ltd that was released last week by Shanghai Higher People’s Court, we have seen a sharp difference between NDRC and Chinese courts’ understanding of Article 14 of the Anti Monopoly Law. Therefore, if the punished milk powder manufacturers file an administrative lawsuit against NDRC’s fines, the Chinese court may not necessarily agree with the commission’s decision nor hold the punishment to be legal.

READ MORE

Why the Anti-Monopoly Law Can’t Cut Price of Infant Milk Formula in China?

Posted on by
未命名

(By You Yunting) According to media reports, China’s National Development and Reform Commission (“NDRC”)’s anti-monopoly investigation into infant milk formula discovered that nine milk powder manufacturers, including Wyeth, announced one after another in early July that they would lower their prices, with an average discount of 11%. At the same time, Wyeth canceled its earlier decision to raise the price of Wyeth S-26 Progress GOLD product, a new product by 4 percent. Some consumers told reporters that salesclerks would first recommend Wyeth S-26 Progress GOLD product, and would only bring out the discounted, original milk formula when asked by the consumer with regards to the discount. The following points should be look at more carefully:

READ MORE

Trademark “Zhuomuniao”: Cancelled for Squatting Though It Has Been Put into Use

Posted on by

(By Luo Yanjie) Abstract: when applying for a trademark, the trademark office will judge the similarity of the submitted trademark based on the International Classification of the Trademark Registration for Product and Service (the “Classification”), but the court does not use this only standard. Even if the court finds that the later trademark application to be similar with the earlier applications, and the trademark office approves the later applied trademark’s application, the earlier trademark holder shall have no right to demand the later user for any damages.

READ MORE

Would Those First Users Involved in OEM Constitute Trademark Infringement?

Posted on by

(By Albert Chen) The author once introduced readers to different judicial opinions adopted in the Shanghai and Guangzhou courts over whether trademark infringement could be caused by an OEM. According to a ruling handed down by the Fujian Higher People’s Court in 2012, which came to the attention of the author recently, the judge confirmed that an OEM could lead to trademark infringement, but decide at the same time that no liability shall be taken by the first user of the mark, for no confusion would be made. As for that point, the author certainly has a different opinion.

READ MORE

Could User Information Be Considered Trade Secret in China?

Posted on by

Abstract: trade secret must have three basic features: confidentiality, practicability, and security. Therefore, whether user information in a website could be considered as trade secret or not, it shall also be judged based on these three basic features.

(By Luo Yanjie) User information is very important to a website daily operation. To judge it from the legal protection perspective, it is generally protected as a trade secret. The case introduced in this article is a typical dispute on whether the user information could be considered a trade secret, and thereby could infringement be decided.

READ MORE