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◆ We move to new office in January 2008
As from January 8, 2008, THEMISUN will move to the new address: Suite A2101, Investment Plaza, No. 27 Finance Street, Xicheng District, Beijing City.
Our telephones are changed to: Reception: (+86) 10-66219365; (+86) 10-66219367; Direct Line: (+86) 10-66219375; Fax: (+86) 10-51758118.
We apologize for the inconvenience and would appreciate your kind understanding. THEMISUN will serve clients both in China and overseas with a new look in the new year!
Beijing THEMISUN Intellectual Property Agents Limited
◆ China General Customs Administration Notice (No.16) on Auction of Seized Infringing Goods
China's General Customs Administration (GCA) promulgated the official notice on April 2nd to regulate the auction of seized goods which are found infringing the intellectual property rights of other parties. The seized infringing goods to be put under the hammer refer to the merchandises which are not suitable for public welfare use and the right-owner is unwilling to buy back.
According to the official notice, (1) the supervisory customs should clearly remove all infringing marks or logos from the seized goods and packages before arrange for public auction. ?In case the infringing marks and logos cannot be clearly removed, such goods should be destroyed and not be auctioned; (2) the supervisory customs shall consult with the right-owners before the auction is putting the seized goods to auction.
◆ International Internet Treaty Effective In China
As from June 9th, 2007, the World Intellectual Property Organization Copyright Treaty and the World Intellectual Property Organization Performance & Audio Record Treaty (namely the International Internet Treaties) became effective in the People’s Republic of China. The Treaties, which were passed by China's National People’s Congress at the end of 2006, provide that anyone will be reliable for infringement if they use the internet works without the permission of online writers, performers or producers of audio and video works.
The International Internet Treaties were originally passed by the World Intellectual Property Organization (WIPO) and became effective from 2002 and around 60 countries have hitherto sanctioned the treaties. China’s accession to the Treaties will help strengthen China's cooperation with the world community in respect of intellectual property protection and promote China’s legislation for internet-linked copyright.
◆ China Top Judicial Authorities Issued Interpretation on Handling of IP-related Criminal Cases
China's Supreme People's Court and Supreme People's Procuratorate, China's top judicial authorities, have jointly issued a latest Judicial Interpretation on handling of criminal cases involving infringement of intellectual property rights. Main contents are summarized as follows:
(1) To duplicate and publish without approval, for the purpose of making profits, other people's literary works, music, movie, TV, video, computer software works or other works in excess of totally 500 copies belongs to "other grave circumstances", or totally 2500 copies to “especially grave circumstances”, as stipulated in Article 217 of the Criminal Law;
(2) The act “Duplicate and publish” stipulated in Article 217 of the Criminal Law include acts of “duplicate, publish, or duplicate and publish as well”; ?Dealers who promote infringing products through advertisement or subscription offer also conduct an act of “publish”; Where an act of illegally printing, duplicating and publishing other people’s works constitutes a crime, the infringer should be prosecuted in accordance with relevant provisions of the Criminal Law;
(3) Where a crime of infringing intellectual property rights is committed, a reprieve condition is not applicable to (I) the infringer who commits a crime of infringing intellectual property rights once again after he/she has already been penalized administratively or criminally; (II) the infringe who does not demonstrate repentance; (III) the infringer refuses to turn in his illegal income; (VI) other applicable situations;
(4) When trying IP-related criminal cases, the people’s courts should make take into consideration such circumstances as the illegal income, business turnover, losses suffered by the right-owners and social jeopardy. If a criminal fine is imposed, the sum should be between one to five times the illegal income, or 50% to 100% of the infringer’s business turnover.
(5) Where the victim has good evidences against the infringement and therefore file a criminal action, such cases should be accepted by the people’s courts; where such infringement cases are so grave as to cause severe harm to social order or national interests, the people’s procuratorate should file the public prosecution.
◆ China Ranked 8th in PCT Applications
The Geneva-based World Intellectual Property Organization (WIPO) has indicated that it has hitherto accepted a total of 145,300 pieces of international patent applications (PCT), and China is ranked 8 th in respect of the volume of filings.
The first place went to the United States , followed by Japan , Germany and South Korea . China surpassed Switzerland and Sweden to take the 8 th place for the first time.
Top companies filing the most volumes of PCT applications include PHILIPS, PANASONIC, SIEMENS, NOKIA, etc. Of the top 20 companies, 7 are from the United States , 4 from Japan and 3 from Germany .
◆ Beijing Intermediate Court Defines 7 Cases of Internet Infringement
At a recent judicial seminar directed by Beijing No. 1 Intermediate Court, a deputy director of the court's intellectual property division, Mr. Liu Yong, put forward seven instances which will be considered as IP infringement in the backdrop of the virtual world:
(1) Unauthorized upload of other people's works including literature, pictures, music, movies and TV program;
(2) Establish web links to other parties' website, without license, for commercial purpose;
(3) Intrude into the web servers of other companies for the purpose of plagiarizing their web contents;
(4) Intercept web information of other parties to clog the normal operation of their web servers;
(5) Disturb, shield or block competitor's identical software in an unfair way in order to grab web resources;
(6) Release and disseminate rogue software;
(7) Register other party's well-known trademark as domain name without authorization.
◆ NPC Deputy Proposed Abolishment of “Dual System” on China IPR Protection
During the annual China National People's Congress of 2007, a legislative proposal on abolishment of Chin's Dual System on protection of intellectual property rights, which was filed by an NPC deputy, Mr. Zhang Qimei, also sitting on the consultative counsel of China Supreme Court, has commanded great public attention.
According to the proposal, the intellectual property right is a private right and is generally protected through the judicial system in most modern countries. Dispute arising from such civil rights should be dealt with solely by the wishes of the parties concerned and should not be intervened by administrative authorities. The proposal indicated that new systems should be established to enhance judicial protection of intellectual property rights.
China's Dual System (administrative and judicial) on IPR protection has now been lagging behind the development of modern economy and run counter to the well-accepted requirements for judicial remedies. The disputes over IP rights are supposed to be solved by the parties concerned at their own volition and the administrative organs may not consume the public resources to handle private rights, which not only cause contradiction between the enforcement authorities and the judicial departments, but also complicate the case and increase the onuses of the parties involved.
◇ Int'l Auction Company Had its Mark Reaved in China
The world-renowned auction group company, Christie Manson & Woods Limited, has been well-known for many centuries in the field of auction industry and is popularly-famous for its auction services on vintage articles and great artistic pieces.
In November of 2006, it upset Christie Manson & Woods Limited that its widely-used Chinese trademark “ 佳士得 ” was registered by a Chinese individual also with background of the auction industry. The trademark registration was approved by China 's Trademark Office (TMO), and that means Christie Manson & Woods itself may not use its own mark in operation and promotion of core services
Christie Manson & Woods has established a Hong Kong limited company as well as offices in Beijing and Shanghai, all operated under the famous trademark and trade name “ 佳士得 ”. During the last several years, it has sponsored major auction events in the China mainland both solely and jointly. The registration of its key mark by other competitors will surely affect and decrease its great image and commercial promotion.
Professional and experienced in representing foreign companies on China trademark disputes, THEMISUN has been instructed by lawyers of Christie Manson & Woods to timely file a cancellation action before the Trademark Review and Adjudication Board (TRAB) against the malicious registrant. Currently, THEMISUN attorneys are further preparing supplemental evidences to support the cancellation action. Our attorneys are optimistic on the success of finally taking back the mark for Christie Manson & Woods.
◆ China Adopts Special Sign on Geographically Indicated Merchandise
China State Administration for Industry and Commerce (SAIC) has officially declared the special sign to be used on geographically indicated merchandise, goods that are marked with geographic indications. The Trademark Office (TMO), China 's trademark administrative authorities under the SAIC, explained that members of the geographic indication proprietors, as well as licensed producers and operators, can use the special sign together with the geographic indications on the merchandise. No royalties will be charged for using the special signs.
According to the TMO, the special sign contains “Trademark Office of the State Administration for Industry and Commerce of the People's Republic of China ” and “China Geographic Indication” (both in Chinese and English) as well as the “GI”. The special sign has been put in formal use effective from January 30, 2007.
◆ LG Sues TCL in US
LG has declared that it has filed a lawsuit against TCL before a Texas court of the United States , through which LG charged TCL with infringement of LG's four patent rights relating to digital TV.
LG's China management revealed that LG owns the original technology for processing North American digital TV signals (ATSC) and all operators running digital TV business in the United States should pay royalties to LG for use of the patented technology.
By filing the lawsuit, LG sent a strong signal in protecting its intellectual property rights. TCL has also said it has become aware of the filing and will legally deal with the proceedings. The subjects of this lawsuit are patent rights relating to technologies for operating digital TV channels and for activating blockage of the digital TV. LG has already received payment of royalties from Japanese and European manufacturers of TV sets.
TCL said that it has been talking with LG on license of their patent rights but has not yet come to terms with LG. TCL considered the royalties claimed by LG are too high to be accepted.
◆ China to Blacklist Pirate Companies
China Copyright Administration Bureau (CCA) is set to establish a blacklist policy to cope with those companies who repeatedly conduct copyright piracy on the internet.
The rapid growth of China 's Internet infrastructure has given great facility to registering a website and some pirate companies who used to pirate copyrights can now register a new website to resume its illegal acts. Some blatant pirates even just continue its illegal acts not longer after it has been fined or punished.
The CCA has voiced its resolution that it will join forces with the public security bureaus and telecommunication administrations to clamp down on such internet piracy. A prominent measure under consideration is to blacklist the pirate websites and technically remove them from business operation.
◆ WIPO to Convene on Anti-counterfeiting Issue
World Intellectual Property Organization (WIPO) has decided to convene a global congress on Combating Counterfeiting and Piracy worldwide. The meeting is scheduled to be held in Geneva January 30-31, 2007, and more than 500 governmental, private business and civilian organization representatives will be present at the congress.
According to WIPO, counterfeits are posing a big threat to health and lives of millions of people and have caused hundred billion US dollars of economic losses on the globe scale. Almost each type of famous merchandise has been the target of counterfeiting business, and foods and medicine bearing counterfeit labels are in particular the worse of the worst.
Although the accurate turnover of counterfeit medicine is hard to calculate, the market share of such fakes now account for 10% of the world medicine market and that in developing countries has reached 25%, according to estimation by World Health Organization (WHO).
Also attending the congress will be representatives from INTERPOL, World Customs Organization (WCO), Global Business Leaders Association for Anti-counterfeiting (GBLAAC), International Trademark Association (INTA), International Chamber of Commerce (ICC) and International Security Management Association (ISMA).
◆ Olympics Organizing Committe Says "No" to Tampering of Olympic Logos
It has come to public attention that the Beijing Olympic emblem, mascots and logos were juggled and tampered by some cyber-citizens. The tampered logos not only misinterprete the Olympic spirits but also uglify the good wishes of the world towards the 2008 Olympic Games.
In opposition to spreading manipulation of Olympic logos, director of the legal affairs for Beijing Olympic Organizing Committe (BOOC), Mr. Li Yanjun, recently observed that such mischievous acts not only smeared on the Olympic spirits but also violated the provisions of the China Copyright Law. BOOC will reserve the right to take legal actions against such acts and the malicious manupilators.
As early as 2003, BOOC issued pulic notices declaring on the protection of the Olypic marks and logos and forbidding these logos from being divided, tampered,distorted or falsified. BOOC has carried out an omni-level protection strategy on the exploitation and protection of the Olympic marks and logos and has effected legal registration of such creations with Beijing Copyright Bureau. Mr. Li Yanjun indicated that some commercial websites published distorted Olympic logos in order to increase its click-through rate, and such acts obviously constituted an infringement on the registered logos and must be absolutely stopped.
◆ China Acceded to Two International Conventions of WIPO
Recently, China acceded to two international conventions of WIPO (World Intellectual Property Organization), namely the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, which implies that China has paid and will pay more attention to the protection of internet copyright.
LONG Xinmin, Director of State Copyright Bureau, gave comments that the accession of the two conventions shows China government's active attitude towards the construction of international order on the protection of intellectual property rights and will enhance the cooperation with the international society in this field, thus further facilitating the perfection of China's copyright law system by learning the successful experience from other member nations.
◆ SIPO Submitted Revised Draft of Patent Law to State Council for Review
China 's patents administration authority, State Intellectual Property Office or SIPO, has recently submitted the third revised draft of the Patent Law to the State Council for review.
The existing Patent Law came into force on April 1, 1985, and was revised respectively in 1992 and 2000. During the past 20 years, China 's Patent Law has played a remarkable role in regulating relevant social relations. However, fast development of China 's economy and science as well as drastic changes in the administration of patent rights has made it necessary that the law needs to be revised to cater to the new needs of patent application and patent administration. Up to now, the SIPO has completed the procedures of drafting, collecting opinions, revising and submitting to State Council. The revised Patent Law draft should be reviewed by the State Council and the Standing Committee of the National People's Congress for discussion before it is passed.
◆ Counsel of FOX Racing Inc. visited THEMISUN in December
On December 6th, leading counsel of America 's Fox Racing Incorporation, Mr. Tim Naylor, came to visit THEMISUN's office in the financial street of Beijing . Mr. Naylor held talks with THEMISUN's attorneys and focused on elevation of effectiveness in enforcement against trademark infringement. Both sides also reached consensus of wider and closer cooperation in protecting FOX Racing's famous marks in China .
FOX Racing Inc. is a famous American company in the field of motorcycle sports as well as all relevant products and services. In recent years, many counterfeit FOX goods were manufactured in China and exported to Southeast Asian countries, and FOX Racing has invested great human and financial resources in anti-counterfeiting work.
◆ THEMISUN represented PHILIPS in successful raid in Hongzhou
In early December, SIDESUN, former enforcement arm of THEMISUN, represented PHILIPS in a successful raid action in East China's Hangzhou City against a major distributing company in the central commercial section of the city. Altogether more than 4000 sets of fake PHILIPS earphones were searched out and confiscated.
The illegal company has been dealing in earphones bearing well-known marks for a long time and is the supplier for most earphone retailers both in Zhejiang Province and other neighboring provinces. After a thorough investigation on the target as well as its supply chains, THEMISUN requested Hangzhou Technical Supervisory Bureau to take a quick action. Also seized during the action are more than 2,000 sets of fake “SONY” earphones.
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