CHINA INTELLECTUAL PROPERTY LAW NEWSLETTER
Vol. 2 , No. 10 - July 30 , 2001
TOPICS THIS ISSUE:
- New Interpretations Clear and Tough on Cyber-Squatters
- Archaeologists Discover World's Earliest Paper Package Ads
- Shanghai Strives to Protect Intellectual Property Rights
- Unusual Invention Against Corruption holds IP Implications
- Chinese Police Making Progress on Counterfeit Goods Crimes
New Interpretations Clear and Tough on Cyber-Squatters
Cyber-squatters, people who register someone else's trademark as a domain name, will now face civil liabilities in China if their actions are regarded as malicious.
According to the Supreme People's Court, a "malicious" activity can be interpreted as registering a domain name with a famous trademark owned by other entities and then selling the domain name for illegitimate profits.
The Supreme People's Court delivered judicial interpretations that determine the content of domain name dispute cases, prerequisites for a hearing, and activities that constitute copyright infringement. The involved individual's activities and famous trademark's nature are to be included in the hearings.
The interpretations established that four prerequisites are necessary to judge an activity as a copyright infringement or illegitimate competition.
- The plaintiff's claim for civil rights protection is valid and legitimate;
- The domain name or the main part of the domain name registered by the defendant is a copy, imitation, translation of a famous trademark owned by the plaintiff or similar enough to the domain name owned by the plaintiff to create misunderstanding;
- The defendant has no valid reason for registering or using the domain name; and
- The defendant's activities prove to be malicious.
The Supreme People's Court also declared that if the defendant registers a domain name that is the same as or similar to the plaintiff's registered trademark or domain name for commercial reasons, intends to sell the domain name to gain illegitimate profits or does not use the domain name and has no intention of using it, his or her actions are classified as malicious.
After judging that the defendant's actions constitute trademark infringement or unfair competition, the court can order the defendant to halt the infringing activities, cancel the registered domain name, hand over the domain name rights to the plaintiff, and compensate plaintiffs for consequential damages that have occurred.
Archaeologists Discover World's Earliest Paper Package Ads
Chinese archaeologists recently announced they have found the earliest paper package advertisement in the world. "This means China is the first country in the world to use paper advertisements and the first to use trademarks on commodities," said Cao Yannong, a researcher for the China Cultural Relics Association.
The two pieces of wrapping paper, dating back approximately 700 years, found in an ancient tomb in Yuanling County in central China's Hunan Province, are presumed to be the earliest paper package ads, much older than similar ads in the west.
When they were unearthed, the two pieces of wrapping paper of the same size were found folded and put together in a trousseaux case, as funerary objects for the tomb's owners, a couple in the Yuan Dynasty (1271-1368).
According to the folds and the red powder remnants on the paper, archaeologists presume they were used to wrap oil paint pigments.
These two pieces of quadrangular paper, 33.5 cms in length, 25.5 cms in width, are made of mulberry bark. Elaborate black patterns, in the shape of lotuses and clouds, are decorated on the paper.
According to Cao, these two pieces of wrapping paper, blending packaging, advertisements and a trademark, had some of the major characteristics of modern packaging.
There are 70 Chinese characters written on the paper, which describe the variety, quality and characteristics of the commodity, and the address of the store. The sentence structure is especially similar to modern ads. For example "Compared with other oil paints, the tint of our product is unique."
A red mark on the paper was probably an anti-fake mark, said Cao, adding that another mark in the shape of a floral basket on the paper may be the trademark.
The appearance of paper package ads was accompanied by prosperous commercial trading at that time. Experts say the history of Chinese ads can be traced back to times as ancient as the Han Dynasty (206 BC-220). Bronze mirrors made at that time have inscriptions with the purpose of publicizing the commodity. In the Tang Dynasty (618-907), various forms of advertisements were used.
However, modern ads did not appear in China until the 19th century, and modern development of this practice had to wait until 1978, when China carried out its economic reform and adopted a policy of opening to the outside world.
(Source: Xinhua News Agency)
Shanghai Strives to Protect Intellectual Property Rights
Shanghai, the most prosperous municipality in east China, is continuing in its effort to protect intellectual property rights.
The latest statistics show that last year alone, Shanghai dealt with 1,700 trademark offenses, including a number of infringements of foreign trademarks.
The municipal copyright bureau has seized 170,000 unauthorized copies, including 90,000 books, and combated illegal audio-visual sales.
Shanghai has also opened IPR courts to deal with an increasing number of cases concerning IPR violations.
Local government officials believe that IPR protection deserves more governmental attention for the sake of technical innovation and an improved investment climate.
The Shanghai IPR bureau has started training professionals who will be engaged in legislation and IPR examination this year.
Statistics show that the number of patent applications in Shanghai last year reached 13,318, ranking second highest in China.
(Source: BBC News)
Unusual Invention Against Corruption holds IP Implications
Playing cards satirizing 52 forms of graft and official misconduct are being used at the card tables of Qiuxian, in Hebei province. Each card has a caricature showing a corrupt act. For example, the king of spades depicts a half-naked official with a pretty girl, as a comment on sexual bribery.
Hou Junshan, a local cartoonist, had designed the cards for some elderly women, satirizing the behavior of rural people. When county officials were looking for caricatures to use in an anti-corruption campaign, Mr Hou suggested they use his cards.
The County Procurate liked the idea and gave Mr Hou RMB 500 so that he could complete the design.
''The total cost was higher than that,'' Mr Hou said. ''I still owe several hundred RMB to the shop that printed my design work.''
The County Procurate then took the drawings and assigned Mr Hou a position as consultant to the Procurate's Special Malfeasance Team. The Procurate retained Mr Hou's original drawings.
''We are not making any profit. We only get our costs back. The first run of 10,000 cost about four RMB per deck. When the print run goes over 100,000, the cost will be just over one RMB per deck,'' Mr Li said.
The Procurate has already sold approximately 50 000 decks in Qiuxian and has received orders for 80 000 more.
Mr Li says the cards will soon be available in Shandong and Guangdong provinces. Mr Li is considering allowing a private company to handle future operations in order to realize profits.
State media has officially endorsed the cards as a new way to combat corruption. China Central Television (CCTV) has shown interest in airing a program devoted to the cards, and the People's Liberation Army publishing department has proposed collecting the caricatures in a book, said Mr Hou.
The cards, due to their success, have come to the attention of counterfeiters. Mr Li said the Procurate applied for a patent in May, and they expect that the application will be approved.
The Procurate claims that "Hou Junshan was hired to do the design and was already paid more than one thousand RMB.'' Mr Hou is surprised, as he declares he has not been paid since the cards were released two months ago.
Chen Zhenqian, a Beijing lawyer, noted that without prior agreement between Hou Junshan and the County Procurate, the Procurate has infringed on Mr Hou's rights.
Mr Hou admitted he did not know what to do. ''I know the reality here. I might win the case if I were to take them to court. But I would not be able to deal with the problems afterwards. Qiuxian is, after all, a small remote county,'' he said, referring to the way justice operates in such areas.
(Source: South China Morning Post)
Chinese Police Making Progress on Counterfeit Goods Crimes
In Beijing, police announced on Tuesday 24 July that they have investigated a number of high-profile cases involving the production and sale of fake goods, including counterfeiting of famous foreign trademarks.
A spokesman for the Ministry of Public Security said the crackdown was part of a national campaign to ensure market order.
The cases included the counterfeiting of 300,000 Swiss and Japanese watches, including Rolex and Seiko brands, as well as the illegal production of more than 100,000 Kodak and Fuji film boxes, and medicine bearing phony British trademarks.
Police have also arrested suspects of illegally assembling vehicles, selling fake crop seeds, and making counterfeit cigarettes and one-off injectors.
(Source: BBC News)
Lehman Lee & Xu
China Lawyers, Notaries, Patent, Copyright and Trademark Agents
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