The China National Intellectual Property Administration recently released details of 10 exemplary patent administrative enforcement cases from 2019. One selected case concerned a patent infringement dispute relating to the anti-tumour drug sorafenib, which has been selected for its significance in respect of the application of the Bolar exemption.
Whether the use of a trademark in the title of a product sold online constitutes trademark infringement typically depends on whether such use is fair. When products are sold online, determining what constitutes fair use can be tricky. Two cases involving famous mobile phone manufacturers Xiaomi and Oppo illustrate this problem.
In April 2020 the Beijing High Court published the Guidelines on the Determination of Damages and Statutory Damages in Disputes over Intellectual Property and Unfair Competition. These guidelines, which entered into effect on the date of issuance, are detailed, precise and even innovative. Even if they have binding force on only the Beijing courts, they should be influential throughout the rest of the country.
Apart from securing damages from infringers in a time-efficient manner, IP rights holders could leverage settlement agreements to rein in repeated infringements, provided that a considerable amount of damages could be written into the agreement as an insurance policy in case of repeated infringement. The courts tend to validate such damages clauses as long as infringement is established.
The Beijing IP Court recently denied the inherent and acquired distinctiveness of Van Cleef & Arpels' four-leaf clover 3D trademark. Van Cleef & Arpels appealed before the Beijing High Court and the case is pending. The Beijing IP Court has set a high threshold in assessing the registrability of a 3D trademark which consists of a product shape. It remains to be seen whether this view is shared by the Beijing High Court.
In 2019 the IP Tribunal of the Supreme People's Court confirmed that a physical mobile phone was eligible prior art in assessing the novelty and inventiveness of a patent. The tribunal clarified that a party that asserts a physical object as prior art must specify the asserted prior technical solution, specify the corresponding relation between such prior technical solution and the physical object and prove or demonstrate that the public can intuitively obtain the technical solution from the physical object.
The exposure draft for the Implementation Measures for Early Resolution Mechanism of Pharmaceutical Patent Disputes (for Trial Implementation) was recently published to solicit public opinion. The measures are the first legal document explicitly addressing the pharmaceutical patent linkage system in China since the idea was first floated by the National Medical Products Administration in 2017. This article examines the measures' key takeaways.
The Supreme People's Court recently promulgated the Provisions on Several Issues Concerning the Application of Laws in Adjudicating Administrative Cases Involving Granting and Affirmation of Patent Rights, which is the first judicial interpretation concerning the trial of patent administrative cases. This article summarises the judicial interpretation's main points.
The Guangzhou IP Court recently upheld a first-instance judgment which had dismissed a trademark infringement claim against parallel imported products. The decision reaffirms the judicial practice that the import of non-counterfeit goods without the express permission of the trademark owner is not illegal in China, provided that the imported products comply with China's compulsory certification requirements and the importer does not modify, in any way, the imported product.
In China, an individual's name right is no longer protectable after their death. Although Marlon Brando passed away in July 2004, the China National Intellectual Property Administration (CNIPA) recently rejected an application to register the trademark MARLON BRANDO and the Chinese equivalent in respect of goods in Class 3. The CNIPA held that the registration and use of the trademarks would violate Article 10.1.8 of the Trademark Law.
Against the backdrop of the COVID-19 outbreak, the State Administration for Market Regulation recently issued the Notice on Eliminating Copycats of Famous Hospitals and Other Healthcare Institutions. The notice aims to eliminate from the healthcare industry copycats that are free-riding on the reputation of trade names or famous hospitals – in particular, 'Union', 'Huashan', 'Xiangya', 'West China', 'Qilu', 'Tongji' and 'Tiantan'.
The Supreme People's Court recently published the draft Judicial Interpretation on Several Issues Concerning the Application of Law in Civil Litigation on Trade Secret Violation. The draft judicial interpretation provides further details on several matters, including what can be protected as a trade secret, what protective measures a trade secret owner should apply and how damages should be calculated.
The Supreme People's Court recently released the Opinions on Tightening Sanctions on Intellectual Property Infringement (for Consultation) for public opinion until 31 July 2020. The opinions contain 21 articles aimed at strengthening preservation measures, stopping infringement in a timely manner by ordering cessation, enhancing compensation and reinforcing criminal crackdown on IP violations.
The Supreme Court recently released an exposure draft on several provisions concerning evidence specifically relating to civil litigations involving IP matters. The draft contains five chapters and 53 provisions, encompassing aspects of the provision of evidence by the parties, the investigation of evidence, the collection and preservation of evidence, evidence exchanging and cross-examination, and evidence assessment and admissibility. The draft also attempts to codify some customary practices.
The Supreme People's Court recently released for public comment two judicial interpretations that address online IP infringement. Some of the drafts' articles reflect government commitments made during the first phase of the China-US Economic and Trade Agreement, including exempting brand owners from liability for submitting erroneous takedown notices provided that they are submitted in good faith and imposing liability for takedown notices and counter notifications that are submitted in bad faith.
In March 2020 the China National Intellectual Property Administration released an exposure draft on the Guide for Determining Geographical Indications as Generic Names. The guide is considered a response to the first phase of the China-US Economic and Trade Agreement, since it completely absorbs the standards for determining generic names stipulated in the agreement.
The China National Intellectual Property Administration (CNIPA) recently issued the new Administrative Measures for the Use of Special Marks Reserved for Geographical Indications (GIs) (Trial). The special mark reserved for GIs is an official mark for consumers to verify GI-protected products in China and can be used by authorised producers, members affiliated with rights holders of GI collective trademarks, licensees of a GI certification trademark and other parties subject to CNIPA recordal and publication.
In response to the Sino-American trade agreement signed in January 2020, the Supreme People's Court (SPC) recently issued a notice soliciting public opinions on two documents concerning the enforcement of IP judgments. The promulgation of the SPC's documents may allow the judiciary to review the entire enforcement regime to further clarify and simplify not only enforcement procedures, but also bankruptcy procedures.
The Beijing IP Court recently held that two Tianjin-based companies had infringed Chinese Patent 201310030601.2, which is owned by the largest specialty mushroom grower in China, Shanghai Finc Food Co Ltd. This is the first case concluded in the Beijing IP Court to involve an infringement dispute concerning a patented microorganism per se.
The China National Intellectual Property Administration (CNIPA) recently invalidated Daimler's Design Patent 201430032306.6 regarding the new Mercedes-Benz Smart generation following a validity challenge by Shandong Lichi, a Chinese new energy vehicle company. The CNIPA held that the two designs in the patent at issue had no obvious difference to the prior designs, which had been published in news media.