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.
In China, foreign brand owners are becoming increasingly concerned about unauthorised retailers using their trademarks on signboards. The legal issue is complicated by the fact that these unauthorised retailers are selling genuine goods which originate from parallel imports.
The Patent Law provides that a design for which a patent is granted must significantly differ from prior designs. Further, the similarity between a patent design and a prior design must be determined from the perspective of ordinary consumers in the relevant market. To this end, the Supreme People's Court uses certain parameters, including so-called 'design space'. This article analyses the application of these parameters in a recent design patent administrative suit.
The fourth amendment of the Trademark Law came into force on 1 November 2019. The revised Article 4 of the law now states that a "trademark filed in bad faith without intention to use shall be rejected". This modified version is also mentioned in Article 44.1 of the law, which provides that any trademark registered in violation of Article 4 and any trademark registered by fraudulent or unfair means will be declared invalid.
China has witnessed a number of significant developments in biotechnology patent prosecution in recent months. The amended Patent Examination Guidelines, which the China National Intellectual Property Administration (CNIPA) has been implementing since 1 November 2019, brought significant changes to the use of human embryonic stem cells. Further, in one of the few cases of its kind, the Supreme People's Court overturned a CNIPA re-examination decision in a patent administrative litigation.
In November 2019 the China National Intellectual Property Administration (CNIPA) stated that when a trademark embossed on a bottle cannot be removed, recyclers should ensure that they cover said trademark with another label to avoid the likelihood of confusion. The CNIPA added that affixing another label bearing another trademark on a bottle, leaving the original embossed trademark visible, is insufficient to avoid confusion.
When goods are manufactured in China by an original equipment manufacturer factory for export, the foreign buyer is not always the owner in China of the trademark that is affixed on the goods. But what if the trademark is registered in the name of a third party and such third party decides to sue the factory for infringement and stop the export of the goods? This is a long-debated question of which the courts have demonstrated different understandings.
A recent Supreme People's Court (SPC) decision clarified the requirements to cite the prior use defence under Article 59.3 of the Trademark Law. In this regard, the court stated that the only person eligible to cite this defence is the prior user themselves and that such use must have occurred prior to the registration application and the trademark owner's use of the registered trademark. Further, for the first time, the SPC made it clear that geographical scope is a key element in defining the original scope of use.
Geographical indications identify goods as originating from a certain region or locality, where a given quality, the reputation or another characteristic of the good is essentially attributable to the natural or humanistic features of the indicated place. However, if an indication is accredited as a geographical indication in its country of origin, is this sufficient for it to be granted protection in China without being registered as a trademark?
Claims are technical solutions seeking protection and should be a generalisation of the content sufficiently disclosed in a patent description. However, poorly drafted claims that include inappropriate generalisations risk being unsupported by their description. When ascertaining whether a claim of medical use invention is supported, it is crucial to reasonably interpret the scope of the claim.
The State Administration for Market Regulation recently published Certain Provisions for Regulating Applications for Trademark Registration. The new regulations set parameters for determining bad-faith practices and bad-faith applications for trademarks that are not intended for use. They also introduce procedures and countermeasures for identifying not only bad-faith applications, but also perpetrators (ie, bad-faith applicants), facilitators and enablers (ie, unethical trademark intermediaries).
In China, the practice of defensive trademarks appears to be a guiding factor when determining the legitimacy of a trademark application, but said trademarks remain subject to cancellation in case of non-use. The main challenge is the bad-faith strategy of applying to register many different trademarks without the aim of using them. In this respect, the recent revision of the Trademark Law gives hope that such a highly prejudicial phenomenon will be progressively eradicated.
Drug invention patents protect multiple types of invention, including compounds, crystal forms, dosage forms, preparation methods and uses. Nonetheless, in practice, it is difficult to patent improvement drug inventions in China. In proving the patentability of such an invention, patentees often face difficulties in establishing its non-obviousness (inventiveness).