In a recent case, Red Bull AG claimed that a trademark registered by Korean company Bullsone Co, Ltd should be invalidated due to the likelihood of confusion as to the source of the designated goods. A notable point in this case was the difference in position taken by the Japan Patent Office Trial and Appeal Board and the IP High Court with regard to the relevant trademarks and the evidence to be considered when determining the well-known status of the cited mark.
Over the past two years, the Japan Fair Trade Commission (JFTC) has significantly amended its guidelines concerning distribution systems, giving particular consideration to the EU Commission's 2010 guidelines on vertical restraints. Although no cases have occurred in which the JFTC has had to decide on the legality of a particular selective distribution system, given that the number of traditional cartel cases is declining, it is likely to shift its focus to this area and follow in the footsteps of the EU Commission.
In September 2017 the Ministry of Health, Labour and Welfare issued the Outline of the Act for Revising Related Acts for the Promotion of Work Style Reform. Once the National Diet passes the bill in 2018 and the revised Labour Standards Act takes effect at a later date, companies will be required to implement a new scheme to manage working hours which is substantially different from the existing scheme. As such, the proposed amendment will continue to garner significant attention going forward.
In Japan, money lending operations are subject to certain licensing requirements. That said, it is generally understood that a registration under the Money Lending Business Act is not required to purchase existing receivables. Thus, it may be easier for non-Japanese financial institutions to acquire receivables as opposed to making loans using funds from their own accounts. However, a recent Osaka District Court judgment suggests that this may not always be the case.
Over the past decade, the Japan Fair Trade Commission (JFTC) has made progressive efforts to revise its enforcement practice and procedures in order to align itself more closely with international standards. As part of its modernisation process, the JFTC is gradually adopting other regulators' assessment tools. It is also considering introducing a new penalty calculation system to provide it with more flexibility and discretion in setting fines in return for companies' cooperation.
A Japanese company recently claimed that a Chinese company's trademark should be invalidated due to its similarity with the plaintiff's trademarks and the likelihood of confusion as to the source of the designated goods. Although the Japanese Patent Office Trial and Appeal Board rejected the plaintiff's claims, the IP High Court overturned this decision. The conclusive factor in the case was the way in which the similarity of marks should be assessed when they are intended to be stitched on certain goods.
In June 2017 the Financial Instruments and Exchange Act was amended to introduce the so-called 'fair disclosure' rule in Japan. The amendments address recent cases of selective disclosure of material information by issuers to sell-side analysts and investors' requests to introduce similar fair disclosure rules to those of other jurisdictions. The Financial Services Agency recently published a draft implementing order, ordinance and guidelines for public comment.
Japan's spirit of omotenashi (ie, hospitality) encompasses many aspects of Japanese culture and etiquette, including the practice of gift giving. Many Japanese companies invest heavily in nurturing long-term business partners and, as such, the practice of giving gifts to business partners is relatively common. However, a number of risks may arise in this regard under international anti-corruption legislation, particularly the US Foreign Corrupt Practices Act.
The Tokyo District Court recently rendered its judgment in a patent infringement case regarding fintech-related technologies. This case has been widely reported on in Japan because both parties are major venture businesses and leaders in the Japanese fintech market. This case is also notable as the defendant's cloud-based accounting system involved machine-learning technologies and disputes of this nature are expected to increase.
In recent years, the government-established Council for the Realisation of Work Style Reform has frequently discussed how to realise the international trend of equal pay for equal work in Japan. Further, the Japanese courts have rendered some noteworthy judgments regarding the equal pay for equal work principle. As such, the government is in the process of amending the rules on equal pay for equal work, which will significantly affect Japanese employment practice.
Financial institutions that have no operations in Japan can readily acquire loans made to Japanese borrowers by purchasing the receivables relating to such loans. A number of requirements and considerations must be taken into account when transferring loan receivables, including with regard to novation, money lending operations, registered money lenders, perfection and the upcoming amendments to the Civil Code.
The widely publicised amendments to the Act on the Protection of Personal Information recently came into force. In addition to changing how companies must handle personal information, the amendments reflect a significant shift in how such obligations are regulated and enforced. They also mark the establishment of the Personal Information Protection Commission, which will be the regulatory body responsible for managing and ensuring compliance with the amended act.
The registrant in a recent case registered the trademark FRANCK MIURA in Japanese katakana and Chinese characters with regard to its lookalikes of Franck Muller's well-known luxury watches. However, while the watch designs resembled each other in their entirety, the design similarities were not at issue in this case. Rather, the case centred on the similarity of, and the likelihood of confusion between, the trademark and three prior FRANCK MULLER marks.
The Council for the Realisation of Work Style Reform recently approved its action plan. To implement the plan, which the government has since adopted, certain legal amendments must be enacted. A number of related bills are expected to be tabled before the National Diet in 2017 and will likely garner significant attention.
The Trademark Law and its related regulations govern the registration and protection of trademarks in Japan. The Examination Guidelines for Trademarks also play an important role in the examination of trademark applications at the Japan Patent Office. Revisions to the examination guidelines are underway and additional revisions (eg, guidelines on judging the similarities between trademarks) are under discussion.
In recent years, excessively long overtime hours have been an issue in Japan. In accordance with the Labour Standards Act, the maximum working hours are eight hours a day, 40 hours a week, and company directors who violate this article are subject to imprisonment with labour or a fine. While an employer can extend its employees working hours in certain circumstances under a so-called '36 agreement', the Ministry of Health, Labour and Welfare has set out the upper limits for such overtime work.
Various initiatives in recent years have set in motion a number of reforms to the Japanese criminal justice system. Of most interest to businesses operating in Japan is undoubtedly the introduction of Japan's first plea bargaining system, which will likely incentivise both Japanese and global companies in Japan to take meaningful steps to bolster corporate compliance in order to avoid the sometimes devastating consequences of serious corporate malfeasance.
When used consistently, package designs can act as brand symbols and identifiers. As such, they are increasingly valuable to brand owners. However, if a package design is used or imitated by third parties, its value to the brand will decrease and may even disappear. In order to prevent third-party use or imitation, brand owners should protect their package designs. The simplest way to do so is to obtain an industrial design or trademark registration.
Suntory Holdings KK and Asahi Breweries, Ltd recently reached an amicable settlement based on the IP High Court's advice. Suntory, which owned the patent for a non-alcoholic beer-flavoured drink, had brought proceedings against Asahi, alleging that its manufacture and sale of the non-alcoholic beer Dry Zero constituted patent infringement. Although details of the settlement are confidential, it is believed to have been favourable to Asahi.
In September 2015 the government published a policy encouraging financial institutions to act in good faith on behalf of customers and calling for financial institutions – such as banks selling investment trusts or savings insurance on behalf of insurers – to be more transparent in disclosing their sales commission. The Association of Life Insurance Companies recently published non-binding basic principles for such disclosures.