No.188 March 28, 2022 |
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| The Oriental Pearl TV Tower Of Shanghai |
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| Unitalen News |
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In this issue
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 CNIPA-EAPO PPH Pilot Program Extended
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According to a decision jointly made by the China National Intellectual Property Administration (CNIPA) and the Eurasian Patent Organization (EAPO), the CNIPA-EAPO PPH (Patent Prosecution Highway) pilot program, launched on April 1, 2018, will be extended for another year from April 1, 2022 to March 31, 2023. Relevant requirements and procedures to submit PPH requests with the two offices remain unchanged.
(Source: CNIPA Official WeChat Account)
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| WIPO Report: China is the Largest Source of Patent Applications related to COVID-19 Vaccines and Therapeutics
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Recently, the World Intellectual Property Organization (WIPO) held a press conference online to release the Patent Landscape Report on COVID-19 related vaccines and therapeutics.
The report, prepared by WIPO, is the WIPO's first report to analyze the COVID-19-related patent activity to study the anti-epidemic technological innovation trends. The report pointed out that in the 21 months after the outbreak, 49 patent offices around the world received nearly 5,300 patent applications related to COVID-19, including nearly 1,500 applications related to therapeutics and more than 400 applications related to vaccines. Among them, universities and scientific research institutions are the most active in vaccine-related applications.
According to the report, China is the largest source of patent applications related to COVID-19 vaccines and therapeutics. As of September 2021, applications from 276 vaccine-related patent families are from China, and Chinese applicants have also applied for 887 COVID-19 therapeutic patents. In terms of specific research and development, according to data from the World Health Organization (WHO), as of October 2021, China has a total of 34 COVID-19 vaccines under development, of which 23 have entered the clinical trial phase, ranking second in the world in total. This shows that China is in the world's "first phalanx" in terms of COVID-19 vaccine and therapeutic innovation. Moreover, major intellectual property authorities around the world, including the CNIPA, have opened green channels for COVID-19-related applications.
(Source: the CNIPA)
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| China-Laos Heads of Office Meeting Held Online
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On March 9, Shen Changyu, Commissioner of the China National Intellectual Property Administration (CNIPA) held a video conference with Mr. Santisouk Phounsavath, the new Director General of the Department of Intellectual Property (IPD) of Laos. This is the first high-level meeting between Chinese and Laos intellectual property authorities after the reform of Laos' intellectual property administration institutions.
(Source: CNIPA Official WeChat Account)
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| Cases in Spotlight
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| Unitalen Client Hunan Broadcasting System Respond to Lawsuit, and Plaintiff's Claim of 10 Million Compensation was all Rejected
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Recently, in the case of trademark infringement dispute between Hunan Broadcasting System (hereinafter referred to as the "defendant" or "Hunan System"), Hunan Mgtv.com Interactive Entertainment Media Co., Ltd., Beijing Iqiyi Technology Co. Ltd. (hereinafter collectively referred to as the "defendant", represented by Unitalen) and Beijing Shenlinqijing Culture Co., Ltd. (used name: Beijing Taiyangguangying Film and Television Technology Co., Ltd., hereinafter referred to as the "plaintiff"), the Beijing Haidian People's Court determined that the defendant's use of the alleged infringing mark in the broadcasting and promotion of the program involved in the case was insufficient to cause confusion among the relevant public about the involved trademark and the alleged infringing mark, and the claim that the three defendants infringed the exclusive right to use the trademark Shenlinqijing lacks factual and legal basis. The judgment rejected all plaintiff's claims, and the case acceptance fee of 82,765 yuan shall be borne by the plaintiff. The plaintiff in this case withdrew the appeal after appealing, and the first-instance judgment has come into effect.
Case Summary:
Hunan Broadcasting System is a department-level media institution directly under the Hunan Provincial Governmental Committee. It was restructured from the former Golden Eagle Broadcasting System and was established on June 28, 2010. "The Sound" is an original voice charm competition variety show independently produced by the defendant, Hunan Broadcasting System This variety show mainly consists of three sections: the first section is "Classic Voice", which allows the guests to dub classic films and animation clips, the second section is "Magic Voice", where the guests challenge eloquent lines or dubbing, and the last section is "Voice Show", which is a live sound stage play performed by the guests together. The TV program "The Sound" is based on voice, and voice workers such as voice actors are invited to perform live competition in a special form of "seeing no man and hearing only the voice".
The plaintiff is the holder of the trademarks nos. 12253086 "身臨其境" (shenlinqijing), 10284337 "身臨其境" (SHEN LIN QI JING), and 22297784 "身臨其境" (shenlinqijing) (hereinafter collectively referred to as the involved trademarks). The plaintiff believes that Hunan System has, without the permission of the plaintiff, used a large number of words and marks of "聲臨其境" (shenglinqijing) that are similar to the involved trademarks in the TV program "The Sound" produced and presented by Hunan System, and filed the following claims to the court: (1) the three defendants shall immediately cease infringing the trademark rights of Shenlinqijing, that is, shall immediately cease using marks and words that are identical or similar to the trademark nos. 12253086, 10284337, and 22297784 for Shenlinqijing; (2) Iqiyi, on the homepage of iqiyi.com, and Hunan System and Mgtv.com Interactive Entertainment Media Co., Ltd., jointly on the homepage of mgtv.com and on the homepage of sina.com, shall publish a statement to eliminate the adverse effects of the three defendants' trademark infringement on Shenlinqijing; and (3) the three defendants shall jointly compensate Shenlinqijing for economic losses of 10 million yuan and reasonable expenses of 152,500 yuan.
Unitalen attorneys represented Hunan System and Mgtv.com Interactive Entertainment Media Co., Ltd. in the defense, and firstly argued from five perspectives there was no trademark infringement in this case ; and secondly, even if there is infringement as alleged, the advertising revenue of the involved program has no causal relationship with the involved trademarks of the plaintiffs' companies. The court finally upheld our arguments and rejected all the plaintiff's claims.
Typical Significance:
In this case, it is determined that infringement is not constituted mainly from two perspectives: although the trademarks are similar in sound and form, the meanings can be fully distinguished and thus similarity, confusion and misunderstanding (including confusion and reverse confusion) are not constituted. Besides, the plaintiff’s registered trademark in Class 38 has not been used in commerce for 3 years, and as a result the trademark "has no value for protection." The first broadcasting of the accused program was earlier than the time when the trademark was approved for registration, and it is determined that the involved program did not infringe the registered trademark and is innovative.
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| CUCKOO Finally Won The Retrial And Won The Overall Lawsuit Six Years After It Encountered Malicious Squatting And Malicious Lawsuits!
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Case Summary:
Korea Cuckoo was established in 1978 and was dedicated to the research, development and manufacture of high-pressure rice cookers and household appliances. In 2006, Korea Cuckoo developed rice cookers with inner pots made of gold-plated brass, natural talc, cast iron, etc., and named them as the series of golden copper, Yipinshi, and famous blacksmith, etc., and specially hired a design company to design artistic marks. In the market in the same period, only Korea Cuckoo designed and produced the rice cooker with a pot of pure stone. The rice cooker with "Yipinshi" inner pot product gained widespread attention as soon as it was launched. Korea Cuckoo has a subsidiary Qingdao Cuckoo Electronics Co., Ltd. (“Qingdao Cuckoo”) and carries out its business in China through Qingdao Cuckoo.
In July 2007, ZHENG, a resident of Zhanjiang, Guangdong Province, applied for the registration of the Trademark No. 6175220 "一品石" (Yipingshi) on kitchen appliances such as "Pressure cookers, electric", and established a company in Zhanjiang in August of the same year. In April 2008, ZHENG applied for the registration of another trademark, the Trademark No. 6671221 "一品石" (Yipingshi). The font of this trademark was slightly different from that of the previous one. The copyright patterns and the relevant marks involved are shown in the following figure:
The above two trademarks of ZHENG were approved for registration in February and May 2010 respectively. Five years after the two trademarks were registered, ZHENG began to file administrative complaints to the industry and commerce department for trademark infringement of Qingdao Cuckoo and its distributors since November 2015. Cuckoo also filed applications for 3-year non-use revocation and invalidation against ZHENG's "一品石" (Yipinshi) trademarks since 2016 after being sued by the administrative complaints. However, due to the approval and registration of the trademarks for five years and other factors, the registered trademarks had not been successfully revoked or invalidated.
In June 2016, ZHENG and the company in Zhanjiang filed a lawsuit with the court against Qingdao Cuckoo.
Case Analysis:
After accepting the entrustment, Unitalen attorney suggested that Cuckoo make defense from perspectives such as the prior copyright, and files counterclaim or separate lawsuit against ZHENG and the company in Zhanjiang for copyright infringement. Since the court of first instance did not accept Qingdao Cuckoo's counterclaim, Qingdao Cuckoo separately filed a lawsuit against ZHENG and the company in Zhanjiang for copyright infringement.
Based on the facts of the two cases, the outcome of the copyright case is crucial. The key lies in the collection of evidence and reasoning about the originality and possibility of access of the opposite party of the work " ". To this end, after discovering a large amount of evidence, Unitalen attorney believes that the existing pattern of the calligraphic characters have met the requirements of the Copyright Law for the originality of work, and constitutes a work of calligraphy art. At the same time, from the perspectives of probability, logical reasoning, and high probability, it is emphasized that the accused party has the possibility of access by proving that the accused party maliciously squatted a number of well-known brands including other Korean brands, and combining with the situation that the accused mark is highly similar to the prior art work.
For the trademark infringement case, Unitalen attorney emphasized the prior copyright of Cuckoo in defense, the trademarks maliciously registered by ZHENG and others have no substantial legality, their malicious exercise of trademark rights constitutes abuse of rights, and their claims shall not be supported, based on the judgment rules of the "ELLASSAY" case, the guiding case No. 82 of the Supreme Court.
Court Decision:
Qingdao Cuckoo's claims in the two cases were not accepted by the court in the first and second instance procedures, so the case was appealed to the Supreme People's Court for retrial of the two cases in accordance with the law. After reviewing the two cases, the Supreme People's Court ruled to bring the cases to trial in accordance with the law.
After trial, the Supreme Court determined in the copyright retrial case that the pattern of calligraphic characters " " is the result of personalized selection, choice, and arrangement, and belongs to the author's original expression, which constitutes a work of art in the sense of copyright law. The alleged infringing mark used the original expression part of the art work " " after excluding the creative materials in the public domain, and the two constituted substantial similarity. The possibility of access in the copyright law is not limited to the access to domestic works. For works published abroad, domestic subjects may also have possibility of access. Whether the alleged infringing mark has been registered as a trademark cannot be a legitimate defense for infringing the copyright of others. Accordingly, the Supreme Court ruled to revoke the first and second instance judgments in the retrial judgment and additionally ruled that ZHENG and the Zhanjiang company to cease infringement and assume compensation liability.
In the trademark right retrial case, the Supreme Court determined that: in this case, since the act of ZHENG and the Zhanjiang company of acquiring and exercising the involved trademark right is based on infringing the lawful prior copyright of Qingdao Cuckoo, such act violated the principle of honesty and credibility and has no legitimacy, but they still filed a trademark infringement lawsuit against Qingdao Cuckoo on this basis, such litigation act constituted an abuse of right, and its litigation claims lacked a legitimate rights basis and were not supported. Accordingly, the Supreme People's Court ruled to revoke the judgments of the first and second instances, and re-ruled to dismiss the claims of ZHENG and the Zhanjiang company.
Typical Significance:
In this copyright retrial case, the Supreme People's Court's determination of the originality of calligraphy art works, judgment of substantial similarity, presumption of possibility of access, and comprehensive and objective review and determination of relevant evidence using logical reasoning and daily life experience all have guiding significance for similar cases.
The Supreme People's Court's judgment on the trademark infringement retrial case once again demonstrates the determination of the Chinese judicial authorities to stop illegal squatters from trying to make malicious claims through registered trademarks that are legitimate in form from the judicial aspect, and provides another classic precedent on how rights holders can legally protect their rights in similar situations.
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| Unitalen Client American Company Rogers Won Consecutive Patent Invalidation Cases
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Case facts:
Rogers Corporation was founded in the United States in 1832 by Peter Rogers and is headquartered in Chandler, Arizona, USA. It is a global leader in engineered materials, and produces products in the United States, China, Japan, South Korea, Germany, Hungary and Belgium. The company's products cover many fields, including laminates, 3D printable media materials, prepreg/bonding sheets, ceramic substrates, heat sinks, elastomer parts, polyurethane materials, specialty silicone materials, pressure sensitive tapes, engineered porous rubber, flexographic pads, the solutions include advanced electronic solutions, radio frequency solutions, busbar solutions, elastomer material solutions, etc., and are industry benchmarks in terms of reliability, efficiency and performance.
In the process of entering the Chinese market, Rogers Corporation found that many domestic enterprises took advantage of the loopholes that substantive examination is not conducted for utility model patents, and applied for patents for technical solutions that obviously belong to the prior art and the applications had been allowed. With the help of the Unitalen team, Rogers Corporation filed invalidation request procedures against the above-mentioned patents, and finally completely invalidated the utility model patents including, patent number of ZL2017*******2.4 of a Dongguan Technology company with a title of "a ... foam", and the utility model patent of a Dongguan Technology company with a title of "a ... foam" with a patent number of ZL2018*******4.8. Unitalen successfully helped Rogers Corporation defuse the risks and avoid the threat of infringement on the production and sales of its main products.
Case analysis:
For the first patent invalidation case, the Unitalen team found the optimal prior art in view of the fact that the claims are open-ended and the protection scopes are overbroad. Although the specific embodiments disclosed in the prior art are different from the specific embodiments of the target patent, they can still fall within the protection scopes of the claims; meanwhile, the Unitalen team explained to the collegiate panel that although the technical terms used are different, there is no substantial difference between the respective features of the target patent and the prior art, and those skilled in the art can understand that the above-mentioned different technical terms have substantially the same reference. Finally, all four claims of the target patent were announced to be invalid due to lack of novelty.
For the second patent invalidation case, in view that the claims involve a method, the Unitalen team submitted invalidation reasons that the claims do not comply with the provisions of Article 2.3, and Article 22.2 and Article 22.3 of the Chinese Patent Law, in the meantime, formulated an invalidation strategy of double-pronged attack of both the formal invalidation grounds and the substantive invalidation grounds, which put the patentee in a dilemma. Therefore, the collegiate panel determined that the difference between the preparation processes of the target patent and the prior art does not constitute any difference between the claims and the prior art, and the target patent has no unexpected technical effect relative to the prior art. Finally, all of the claims of the target patent were announced to be invalid for lack of an inventive step.
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| Unitalen News
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| Unitalen Once Again Awarded the WTR 2022 Global Leading Trademark Firm, and Partners Huang Ying and Zhao Lei were Recognized as Outstanding Attorneys
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Recently, World Trademark Review (WTR), an authoritative international media in the field of intellectual property, released the ranking of the 2022 WTR 1000 Global Trademark Leading Firms and Outstanding Attorneys. Unitalen ranks among the top in the two fields of "prosecution and strategy" and "enforcement and litigation". Meanwhile, Unitalen's partners Huang Ying and Zhao Lei have been recognized as Outstanding Attorneys with their superb professional skills and excellent industry reputation.
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| Unitalen Client Kingdee's Right Protection Case was Selected as One of the "Top Ten Typical Cases of Unfair Competition" by Sichuan High Court
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On the morning of March 17, 2022, the Sichuan High Court held a press conference to provide an overview of unfair competition cases from 2019 to 2021 filed in the Sichuan courts and recognized the top ten typical unfair competition cases. "The case of trademark infringement and unfair competition dispute between Kingdee Software (China) Co., Ltd., Shenzhen Dierun Technology Development Co., Ltd., Shenzhen Kingdee Millsun Co., Ltd. and Chengdu Moneywise Office Supplies Co., Ltd." represented by Unitalen was selected as one of the top ten cases.
Related Reading: Kingdee Won the Right Protection Case! Chengdu Intermediate People's Court Ruled that Chengdu Moneywise's Acts Constituted Trademark Infringement and Abuse of Right
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