No.172 November 28, 2020 |
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| Unitalen News |
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In this issue
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 The Revised China Copyright Law Coming in Force Next June 1
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On this November 11, the revision of the Copyright Law, which will come into effect on June 1, 2021, was voted with greenlight to pass at the 23rd meeting of the Standing Committee of the 13th National People's Congress.
The newly revised Copyright Law stipulates that for intentional infringements causing serious impact, punitive damages of more than one time and less than five times the amount of compensation can be applied. If the actual losses of the right holder, the illegal income of the infringer, and the royalties are difficult to calculate, the courts shall, based on the circumstances of the infringement, award a compensation of not less than 500 yuan and not more than 5 million yuan.
The newly revised Copyright Law has also adjusted the definition of "work", changing the expression of "film works and works created by methods similar to film production" in the current law to "audiovisual works".
The newly revised Copyright Law stipulates that when investigating alleged infringements of copyright and copyright-related rights, the competent copyright authority may inquire the parties concerned and investigate the circumstances related to the suspected illegal acts; conduct the site of the suspected illegal acts on the premises and objects Inspection; consult and copy contracts, invoices, account books and other relevant materials related to suspected illegal acts; may seal up or detain places and objects suspected of illegal acts.
The newly revised Copyright Law also clarifies that right holders can take technical measures to protect copyright and copyright-related rights.
(Source: China National Intellectual Property Administration)
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| CTA: First China Trademark Development Index Published
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During the 3rd China International Import Expo, the China Trademark Association (CTA) released the first China Trademark Brand Development Index. The index shows that Zhejiang Province ranks first in the country with 88.51 points, and Beijing and Guangdong Province rank second and third with 88.06 points and 87.95 points respectively.
It is reported that the index includes 5 first-level indicators, such as "trademark brand scale building", "trademark brand quality improvement", "trademark brand potential exploration", "trademark brand benefit realization", and "trademark brand policy support"; 12 second-level indicators, and 30 third-level indicators. The data shows that the development status of China's trademarks and brands is generally good. The development of trademarks and brands has formed healthy competition, but there are significant differences across regions. The development of trademarks and brands in the eastern, central and western regions is distributed in a tiered manner. The eastern provinces place greater emphasis on and investment in the development of trademarks and brands. In the trademark brand development index, most of the top-ranked provinces are also in the developed eastern coastal areas; the provinces in the central region are ranked closely behind, while the provinces and cities in the western region rank most behind.
(Source: China Intellectual Property News)
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| The Signing of RCEP among China and other 14 Member States Integrates a Third of Global Economies Market
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The 4th Regional Comprehensive Economic Partnership (RCEP) Leaders’ Meeting was held on November 15 in the form of virtual conference. After the meeting, the economic and trade ministers of the 10 ASEAN countries and the 5 countries including Australia, China, Japan, South Korea and New Zealand signed the RCEP agreement respectively; and the 15 RCEP member states leaders witnesed the signing of this major global free trade agreement.
RCEP includes 20 chapters, covering comprehensive market access commitments for goods, services and investment. It is a comprehensive, modern, high-quality, and mutually beneficial free trade agreement. The overall liberalization level of trade in goods has been above 90%; the service trade commitment is significantly higher than the original "10+1" free trade agreement level, the investment adopts the negative list model to make open market commitments, and the regulatory field includes a higher level of trade facilitation, intellectual property, e-commerce, competition policy, government procurement, etc.. RCEP also fully considered the differences in economic scale and development level among members, and set up chapters on SME enterprises and economic and technological cooperation to help developing members, especially the least developed members, for them to fully enjoy the results of RCEP.
With respect of IP rights, RCEP provides a balanced and inclusive program for the protection and promotion of IP rights in the regions. The content covers a wide range of fields such as copyright, trademarks, GIs, patents, industrial designs, genetic resources, traditional knowledge and folklore, anti-unfair competition, IP enforcement, cooperation, transparency, and technical assistance. Its overall protection level is higher than that of TRIPs. It’s specified in RCEP that the IP-related content aims to deepen economic integration and cooperation through effective and adequate creation, use, protection and implementation of IPs, so as to reduce distortions and obstacles in trades and investment. Except for the exclusions stipulated in the multilateral agreements administered by TRIPs or WIPO of a member state, each state shall grant the nationals of other states no less favourable treatment than its own nationals in the protection of IP rights.
The RCEP negotiation was initiated by the 10 ASEAN countries in 2012 and Australia, China, India, Japan, South Korea, and New Zealand were invited to join the dialogue for participation. The 3rd RCEP leaders' meeting was held in Bangkok, Thailand in November 2019 where a joint statement was issued, announcing that the 15 countries except India have concluded all written negotiations and substantial market access negotiations. The signing of RCEP marks the successful start of the world's largest free trade zone and a new milestone in the regional economic integration of East Asia. The total population, economic volume, and total trade volume of the 15 member states of RCEP account for about 30% of the global gross, which means an integrated market formed comprising about one-third of the world’s economies.
(Source:www.nipso.cn)
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| China-Chile PPH Pilot Program Extended
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The Patent Prosecution Highway (PPH) pilot program between the China National IP Administration and the Chilean Industrial Property Office will be extended for three years from January 1, 2021, to December 31, 2023.
The relevant requirements and procedures for submitting PPH requests at the above-mentioned offices remain unchanged.
The China-Chile PPH pilot was launched on January 1, 2018 and had run for three years, expiring on December 31, 2020.
(Source: CNIPA)
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| Cases in Spotlight
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| Unitalen Client Ferrari Won the Trademark Infringement and Unfair Competition Litigation of First Instance with Award of 2M Yuan Indemnity
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Case Summary:
Unitalen client Ferrari (the plaintiff) is the registrant of “法拉力” and “Ferrari” and its horse image trademark in Class 12 for use in cars and other goods since 1995. The defendant had registered “法拉利” trademark in Class 33 for use in wines goods. Meanwhile, the defendant used “法拉利”, “Falali” (the pinyin of 法拉力 and 法拉利) , the similar horse image trademarks in their wine products, as well as displaying the name and pictures of Enzo Ferrari, car races and so on to imply the connection with Ferrari. In addition, the defendant used “法拉利” as their business name and named one of its wine product after the plaintiff’s car model.
Court Ruling:
Unitalen brought the case to the Intermediate People's Court of Changsha, Hunan and the court made the following deicion of the first instance:
(1) The defendant shall immediately stop the infringement of the plaintiff’s trademark exclusive rights;
(2) The defendant shall immediately stop using 法拉利” as its business name;
(3) The defendant shall pay the plaintiff the idemnity of 2 million yuan for economic losses;
(4) The defendant shall publish statement in the "Xiaoxiang Morning News" to eliminate the impact.
Typical Significance:
Firstly, the defedant’s “法拉利” trademark was approved and stayed active during the trial of first instance, although it was later invalidated. The plaintiff therefore need to prove its trademark had constituted well-known trademark prior to the registration of the defedant’s trademark. This achivement thus knowcked out the obstacles of right conflict and had the court hold that the alleged trademark constitute infringement.
Secondly, the plaintiff successfully broke through the five-year limit on invalidation request by claiming well-known trademarks and the defendant’s malice. This case was initiated after the defendant’s "法拉利" registered trademark had been registered for 5 years, but the plaintiff proved that its "法拉力(Ferrari)" trademark was well-known prior to the defendant's application of the alleged trademark, which is of malicious intent. The court of first instance redered support to the plaintiff's claims.
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| Unitalen News
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| Unitalen Partners Selected into Asia IP “2020 Top 100 China IP Professionals”
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Recently, 5 of the Unitalen partners, Yu Zehui, Li Deshan, Huang Ying, Zhao Lei and Pan Wei, were selected into the “2020 Top 100 China IP Professionals”, which was published by Asia-IP for the recognition of their topnotch professional services by both domestic and international clients.
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| CNIPA Patent Search Center Officials Visited Unitalen
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A group of officials from the Patent Search Center of the China National IP Administration (CNIPA) visited Unitalen in this November and they were met by Unitalen Chief VP, Li Deshan, and other partners. Both parties had talks over the patent business development and Unitalen provided proactive feedback to the officials on the issues and further improvement needs surrounding patent search and enquiries.
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| Unitalen Received Varied Awards at 2020 China International Trademark Festival
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At the 11th China International Trademark Brand Festival, which was held in Nanchang, Jiangxi on December 5, Unitalen received the awards of “2020 Extinguished Contribution to Brand and Trademark Construction” and “2020 Outstanding Trademark Agencies”. Unitalen partners and trademark attorneys Huang Hui, Jiang Liying, Yin Jing and Zhu Gangqin were awarded as “Trademark Agency Golden Service Individual”. The Ferrari trademark infringement civil litigation handled by Unitalen was also selected into “2019-2020 Top Trademark Agency Cases”.
Meanwhile, Unitalen cohosted with China Trademark Association a seminar on the new development in trademark civil infringement litigations at the event, which had involved numbers of seasoned judges, lawyers in the discussion and attracted more than 200 representatives from businesses and IP service participants.
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