No.193 August 28, 2022 |
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| Unitalen News |
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In this issue
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 Announcement on Launching Cambodian Project of Accelerating the Recognition and Registration of Relevant Chinese Designs (No. 497)
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According to the Memorandum of Understanding between the China National Intellectual Property Administration (CNIPA) and the Ministry of Industry, Science, Technology and Innovation of Cambodia on Design Cooperation, China and Cambodia will launch a Cambodian recognition project for relevant Chinese designs. The Ministry of Industry, Science, Technology and Innovation of Cambodia recognizes authorization results for designs made by the CNIPA, and accelerates the recognition and registration procedure for the corresponding design applications filed with Cambodia upon the applicant's request.
On June 9, 2022, Cham Prasidh, Senior Minister and Minister of the Ministry of Industry, Science, Technology and Innovation of Cambodia, signed and issued the PRAKAS on Regulations and Procedures for Accelerating the Registration of Industrial Designs under Industrial Designs Cooperation of Kingdom of Cambodia with the China National Intellectual Property Administration, officially launching Cambodia's recognition project for relevant Chinese designs. Applicants who have filed for design applications with the Ministry of Industry, Science, Technology and Innovation can request for accelerating recognition and registration of the designs filed with Cambodia based on the results of examination conducted by the CNIPA according to the PRAKAS issued by Cambodia. The original Cambodian text and the Chinese and English reference translations of the above Cambodian PRAKAS are reproduced here in full. Specific information on the Cambodian recognition project for relevant Chinese designs shall be subject to the documents officially issued by the Ministry of Industry, Science, Technology and Innovation of Cambodia.
Attachment: https://www.cnipa.gov.cn/art/2022/8/24/art_74_177483.html
China National Intellectual Property Administration
August 18, 2022
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| Circular on Fully Implementing Online Application of Refusal Review Cases
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In order to further improve the online processing of trademark reviews, strengthen the effective connection between administrative review and court review, and promote the green development of the trademark review, the Trademark Office of the CNIPA will fully implement the online application of refusal review cases by trademark agencies. Relevant matters are hereby circulated as follows:
1.As of November 1, 2022, trademark agencies shall, in principle, submit electronic applications through the trademark online service system instead of submitting paper documents when handling refusal review business.
2.The period from the date of issuance of this circular to November 1 is the "transition period" for the full implementation of online applications of refusal review cases by trademark agencies. Trademark agencies shall make full preparations. Agencies not having an account of the trademark online service system shall apply for registration as soon as possible.
Trademark Office of the CNIPA
September 5, 2022
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| China Intellectual Property Statistical Yearbook 2021 Released |
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Recently, the CNIPA released the China Intellectual Property Statistical Yearbook 2021, which includes statistical data of patents, trademarks, geographic indications, and integrated circuit layout designs in 2021, as well as the related historic statistics.
The Yearbook mainly includes the following contents: (1) statistics of patent applications; (2) statistics of patent grants; (3) statistics of patents in force; (4) statistics of patent applications via agency; (5) statistics of patent applications and grants by IPCs; (6) statistics of patent applications, grants and patents in force abroad originated from the mainland of China and PCT international applications received by the CNIPA; (7) statistics of trademark applications, registrations and trademarks in force; (8) statistics of geographical indication as collective marks and certification marks and GI products; and (9) statistics of applications and certificates of integrated circuit layout designs.
Attachment: China Intellectual Property Statistical Yearbook 2021
(Source: the CNIPA website)
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| First Implementation Regulation Issued after Entry into Force of the Marrakesh Treaty! |
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Recently, the National Copyright Administration of China issued the Interim Provisions on Providing Accessible Content for People with Dyslexia. This is the first written supporting implementation measurements made by China following the entry into force of the Marrakech Treaty in China on May 5 this year. The Provisions came into force as of the date of issuance thereof.
The Provisions includes 17 articles, which define relevant concepts of "dyslexia", "accessible format", "accessible format service agency", "accessible format cross-border exchange agency", etc., refine the regulations of the Copyright Law on the provision of published works to the dyslexic in an accessible manner which they can perceive, provide guidance for the production, provision and cross-border exchange of accessible formats, stipulate the conditions that accessible format service agencies and accessible format cross-border exchange agencies shall meet, and clarify the legal responsibilities regarding the production, provision and cross-border exchange of accessible formats and other acts.
(Source: IPLEAD)
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| 13th Meeting of China-ASEAN Heads of Intellectual Property Offices Held |
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On August 24, the 13th Meeting of China-ASEAN Heads of Intellectual Property Offices kicked off both online and offline. The CNIPA Commissioner Shen Changyu led a delegation to attend the meeting. Rowel Barba, Rotating Chairperson of the ASEAN Working Group on Intellectual Property Cooperation (AWGIPC) and Director General of the Intellectual Property Office of the Philippines (IPOPHL), chaired the meeting, and the ASEAN Secretariat and the heads of intellectual property offices of ASEAN member states attended the meeting.
At present, ASEAN IP Rights Action Plan 2016-2025 is progressing smoothly. The participating IP Offices reviewed and summarized the implementation of the China-ASEAN intellectual property cooperation work plan 2021-2022, and discussed and adopted the work plan 2022-2023.
(Source: the CNIPA Official WeChat Account)
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| New Standard for Sequence Listings Format Implemented in Taiwan, China |
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TIPO, the Intellectual Property Office in Taiwan, China has fully implemented the Standard ST.26 of the International Intellectual Property Organization (WIPO) since August 1, 2022 in order to be consistent with the new standard for sequence listings format published by WIPO. That is to say, patent applications for invention filed on or after August 1, 2022, if including sequence listings, shall comply with the new standard.
In addition, the TIPO stipulated a transition period for the needs of facilitating the filing of international patent applications. That is, all applications for invention filed from July 1 to July 31, 2022 will be accepted by the TIPO even if the format of the sequence listings disclosed in the applications does not comply with the new standard.
(Source: Unitalen IP)
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| Cases in Spotlight
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| Unitalen Client Water Babies Sued Former Franchisees in Defending Brand Rights and Won First Instance Judgment
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Case Brief:
The plaintiff, Water Babies Limited (hereinafter referred to as "Water Babies"), was founded in the United Kingdom in 2002 and is a pioneer in the field of baby swimming. Since it was founded, Water Babies has focused on the field of baby swimming, and its pioneering "parent-child swimming" mode, "music teaching" mode, and highly professional "underwater photography" services for babies have been widely praised by parents. Water Babies has spread its business all over Britain, Ireland, the Netherlands, New Zealand, Canada and other countries through the franchise business model. Its baby swimming brands "water babies" and "沃特寶貝" have developed into international chain brands and entered the Chinese market in 2016.
Water Babies owns the trademarks Reg. No. 24419673A for " ", Reg. No. G1203817 for " ", Reg. No. 17855314 for " ", and Reg. No. 44131042A for "WATER BABIES" (hereinafter collectively referred to as "the involved trademarks"). The involved trademarks have been approved for registration on services such as "Providing swimming courses and instruction, personal trainer services in the field of swimming, and entertainment services", "Personal trainer services on swimming, entertainment with the nature of swimming, underwater photography", "Providing training services, i.e. swimming courses and instruction; Photography", and "Providing waterpark services; Providing sports facilities; Sports training services; Providing swimming pool services; Swimming training" in Class 41 respectively and successively from 2013 to 2020.
Hengqin Bubble Baby Education Technology Co., Ltd. (hereinafter referred to as "Hengqin Bubble") is the general agent of Water Babies in China.
The legal representative of Water Bubble Education Technology (Beijing) Co., Ltd. (hereinafter referred to as "Water Bubble") and Liaoning Tianyi Shuiyi Technology Information Consulting Co., Ltd. (hereinafter referred to as "Tianyi Shuiyi") both signed franchise agency agreements with the Chinese agent of Water Babies. Thereafter, said franchise agency agreements were rescinded without being actually performed. Water Bubble and Tianyi Shuiyi, knowing the trademarks of Water Babies, used marks same as or similar to the registered trademarks of Water Babies without the permission of the latter, and falsely used the information and development history of Water Babies in its misleading publicity.
Water Babies and Hengqin Bubble claimed that the above-mentioned acts of Water Bubble and Tianyi Shuiyi infringed their legitimate rights and interests, and filed a lawsuit with the People's Court of Chaoyang District, Beijing against Water Bubble and Tianyi Shuiyi for trademark infringement and unfair competition disputes in February 2021.
The People's Court of Chaoyang District ruled that the use of "water bubles", "water babies", "沃特寶貝", "water bubbles", "water bubies" and other marks in the operation of underwater photography, parent-child swimming training, maternity swimming courses and other services by Water Bubble and Tianyi Shuiyi constitutes trademark infringement. The contents such as "headquartered in the UK, founded in 2002" claimed by the defendants in publicity are false advertising. In the judgment, the two defendants are ordered to cease the acts of infringement, eliminate the influence and compensate the plaintiffs for economic losses and reasonable expenses of 950,000 yuan in total.
After the first instance judgment was made, the two defendants filed an appeal during the appeal period, and the case is still in the second instance trial at present.
Typical Significance:
This case is a relatively typical case of trademark infringement and unfair competition dispute. The review on the defense of legitimate trademark grants and the relevant determination on the acts of false publicity and unfair competition in the first instance judgment are of certain reference value and learning significance for similar cases.
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| Invalidation Case of Trademark No. 16647402 for "康涅克"——Protection of Foreign Geographical Indications in China and Protection of Chinese Translation of Foreign Geographical Indications
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Case Brief:
Disputed trademark:
Main grounds provided by the petitioner: "康涅克" is the transliteration of "COGNAC", which is the Appellation of Origin/geographical indication of French eau-de-vie products, and has been legally registered and protected in the European Union, France and China as Appellation of Origin and geographical indication. The disputed trademark is a copy of the Appellation of Origin and geographical indication "COGNAC" in France, which can easily confuse and mislead consumers. The petitioner requested to announce the disputed trademark to be invalid in accordance with Article 16 and other provisions of the Trademark Law.
The respondent made response as follow: the evidence submitted by the petitioner showed that the Chinese expression corresponding to "COGNAC" is "干邑", and "康涅克" is not the Chinese translation of "COGNAC". Therefore, the disputed trademark is not directly related to "COGNAC", and does not infringe the name of "COGNAC" of the prior geographical indication. The respondent requested to uphold the registration of the disputed trademark.
Case Analysis:
The focus of this case involves the protection of foreign geographical indications in China and the protection of Chinese translation of foreign geographical indications.
In this case, it can be proved by the decree on May 1, 1936 and the decree No. 2009-1146 on September 24, 2009 issued by the French government as well as the Announcement on Approving the Protection of Geographical Indications for COGNAC issued by the former General Administration of Quality Supervision, Inspection and Quarantine of China submitted by the petitioner that "COGNAC" is protected as a geographical indication of the origin of eau-de-vie products in both China and France, and has constituted the geographical indication referred to in Article 16.2 of the Trademark Law of China before the date of application for registration of the disputed trademark.
The disputed trademark "康涅克" is the Chinese transliteration of the aforementioned geographical indication "COGNAC", and the overall compositions of the two marks are similar; the disputed trademark is designated for use on wine and other goods, which belong to the same or similar goods as the goods brandy that the petitioner's geographical indication is directed to. The evidence submitted by the petitioner is sufficient to prove that its geographical indication "COGNAC" has already gained a certain reputation worldwide including in China before the filing date of the disputed trademark. However, the evidence on file submitted by the respondent cannot prove that its designated goods are originated from the above appellation. In combination with the screenshots of the respondent's online shop, purchase records and other evidence submitted by the petitioner, it is sufficient to prove that the respondent has the subjective intention of clinging to the petitioner's geographical indication for "干邑" in actual use, which is hardly fair. Therefore, the disputed trademark, as approved for use on wine and other goods, can easily mislead the relevant public to believe that the goods are originated from the region indicated by the geographical indication or have relevant quality characteristics, which violates the provision of Article 16.1 of the Trademark Law.
The protection of geographical indications in foreign languages includes the protection of their Chinese translation. The Chinese translation of geographical indications in foreign languages is not limited to a fixed official translation, and all Chinese translation forms that can make the geographical indications reflected in the minds of the relevant public can be included in the scope of protection, including transliteration. In this case, although the respondent argued that the Chinese expression "干邑" is the Chinese translation of "COGNAC" and the petitioner also often uses "干邑" and "COGNAC" together in actual use, "康涅克", as a common Chinese transliteration of the aforementioned geographical indication "COGNAC", should be included in the scope of protection.
Typical Significance:
The specific quality, reputation or other characteristics of the goods indicated by geographical indications are gradually formed in the long history, and are the gifts of nature and the crystallization of the wisdom of the working people. This article analyzes and describes the concept, relevant laws and regulations, and the application of geographical indications through a specific case. Meanwhile, it has been pointed out that in the protection of foreign geographical indications, the scope of protection should not be limited to official translations, and other translation forms such as transliteration should not be neglected, which provides effective legal protection for geographical indications, and has positive significance for maintaining the market reputation of geographical indications, protecting the legitimate rights and interests of the consumers, ensuring orderly market competition, and optimizing the business environment. (REN Hang, LI Ying, the 8th Review Division, Trademark Office of the CNIPA)
(Source: China Market Regulation News)
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| Case of Dispute over Unfair Competition concerning Voice Instruction of "小度"
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Case brief:
Baidu Online Network Technology (Beijing) Co., Ltd. (hereinafter referred to as Baidu) is the developer and operator of "小度" (Xiaodu) AI electronic products, including "小度在家1S" (Xiaodu at Home 1S) (hereinafter referred to as "Xiaodu smart speaker"). "Xiaodu xiaodu" is the voice instruction with a wake-up and operation function used by Baidu for the AI electronic products. After long-term use, the product name "小度" and the voice instruction "xiaodu xiaodu" have had a certain influence. Baidu found out that Beijing Zile Technology Co., Ltd. (hereinafter referred to as Zile) has engaged in the production and sale of the Duyaya learning machine, an AI electronic product same as the Xiaodu smart speaker. Zile prominently uses "小杜" (also pronounced as "xiaodu") to refer to its product in the publicity contents on its official website and in the Duyaya learning machine, uses the voice instruction "xiaodu xiaodu" in the Duyaya learning machine for wake-up and operation, and publicizes this feature on its official website. Baidu deems that the above acts cause confusion among the public and constitute unfair competition. Beijing Jingwei Zhicheng E-commerce Co., Ltd. (hereinafter referred to as Jingwei) sells the Duyaya learning machine, which constitutes contributory infringement. Baidu filed a lawsuit, requiring the two defendants to cease the sued act and requiring Zile to eliminate the impact and compensate for economic losses and reasonable expenses totaling 3 million yuan.
The People's Court of Haidian District, Beijing, held that after Baidu's extensive use and promotion, "小度", as the product name of its smart speaker, belongs to the product name with certain influence as stipulated in Article 6.1 of the Anti-Unfair Competition Law. The voice instruction "xiaodu xiaodu" is a specific and indispensable voice instruction that frequently appears when users use the Xiaodu smart speaker. This voice instruction has established a clear and stable relationship with Baidu and its products, has a high reputation and influence, and should be included in the protection scope of rights and interests under Article 6 of the Anti-Unfair Competition Law of the People's Republic of China (2019 Amendment). The act of using without permission the voice instruction of others that meets the above conditions belongs to other acts of confusion sufficient to mislead a person into believing that a commodity is one of another person or has a particular connection with another person as stipulated in Article 6.4.
In combination with the reputation and influence of "小度" and "xiaodu xiaodu", the Xiaodu smart speaker and the Duyaya learning machine are similar products in terms of function, customers, sales channels, etc. Zile's conduct of the sued act is subjectively malicious, and objectively can easily mislead the relevant public in believing that the Duyaya learning machine and Baidu's Xiaodu smart speaker and its related services may have specific relations in terms of product research and development, technical support, authorization and cooperation and other aspects. The above acts of Zile constitute unfair competition. The first instance court ruled that Zile shall eliminate the influence and compensate Baidu for economic losses of 500,000 yuan and reasonable expenses of 50,000 yuan. The first instance judgment of this case has come into effect.
Comments:
This is the first case of unfair competition by copying a voice instruction in China. In this case, the legal principles are accurately grasped, the scope of protection and applicable conditions for other acts of confusion in Article 6.4 of the Anti-Unfair Competition Law are clarified, the act of maliciously confusing and misleading the public in the AI product market are effectively regulated, thereby guiding market operators to engage in positive competition by proper means such as independent research and development, and innovation and upgrading, maintaining the fair competition order of the AI product market in the process of innovation and development, and meanwhile, fully considering the legitimate rights and interests of consumers.
(Source: the Official WeChat Account of the Beijing Higher People's Court)
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| Unitalen News
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| Unitalen Senior Partner ZHAO Lei Invited to Attend and Host "China Fashion IP Conference 2022"
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On September 12, 2022, the China Fashion IP Conference 2022, co-hosted by the China Trademark Association and the China Fashion Association, and organized by the China Fashion IP Protection Center, was held at 751 D·PARK, Beijing. ZHAO Lei, senior partner at Unitalen, deputy director of the International Communication and Development Committee of the China Trademark Association, and executive deputy secretary of the Beijing Trademark Association, was invited to attend the conference and host the opening ceremony of the conference.
The conference, themed "International Cooperation and Protection of Fashion Intellectual Property", released the Fashion IP Protection Annual Report 2022. As a member of the Expert Advisory Committee of the China Fashion IP Protection Center, Unitalen will continue to work closely with all parties to provide strong support for exploring and establishing an IP protection system suitable for the fashion industry development in China.
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