CHINA INTELLECTUAL PROPERTY LAW NEWSLETTER
Vol. 4 , No.14 - December 9, 2003
TOPICS THIS ISSUE:
- Intellectual Property Database For Guangdong, HK And Macao Launched
- Beijing Court Rejects Toyota Lawsuit Against Chinese Firm
- China Improving Copyright Laws
- Trademark Dispute Goes To Court
- Crocodile Trademark Infringement Case Concluded
- Concerns Over Chinese Copyright Infringement Fine
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Intellectual Property Database For Guangdong, HK And Macao Launched
The Intellectual Property Database for Guangdong, Hong Kong and Macao was launched on December 3 in Hong Kong. It enables Pearl River Delta's existing and potential investors to search in a one-stop-shop manner for information on intellectual property systems throughout the region.
The database allows easy access to information on the intellectual property systems in the Chinese mainland, Hong Kong and Macao. The database will contain laws and registration procedures in relation to trademarks, patents and registered design. In addition, there will also be laws and regulations on copyright.
The database is jointly developed by a number of government departments from Guangdong Province, Hong Kong Special Administrative Region and Macao Special Administrative Region. The three regions have agreed to continue to enhance the database with useful and up-to-date information.
The database website is: www.ip-prd.net.
(Source: Xinhua General News)
Beijing Court Rejects Toyota Lawsuit Against Chinese Firm
Japanese auto giant Toyota's lawsuit accusing a Chinese company of logo infringement was rejected recently by the Beijing No.2 Intermediate People's Court. The court found that their "logos won't cause confusion".
Toyota sued Geely, the Chinese car manufacturer and its car sales center in Beijing for trademark infringement and illicit competition and asked the defendants for RMB13.92 million (about US$1.7 million) in compensation.
"Geely Group's Merry logo is vastly different from Toyota's registered trademark according to the isolated observation," said Shao Mingyan, the court's presiding judge.
Shao said the major lines and the body structure of the two logos were "obviously" different and would not cause confusion and misunderstanding among buyers.
It is the first-ever lawsuit involving a foreign auto manufacturer in China since the country joined the World Trade Organization.
Before the court's first judgment, a hearing was held in Beijing in August this year but failed to reach any verdict.
Lawyers representing Toyota said the Merry logo of Zhejiang-based Geely Group was very similar to the Toyota logo and would mislead consumers, thus constituting infringement of its well-known trademark.
The Geely Group defended their stand contending that their Merry logo was dissimilar from Toyota's trademark and Toyota's accusation lacked factual evidence.
Toyota registered its logo in 1990 and the registration is effective until 2010, according to sources with the Japanese company.
Geely registered its joint Merry trademark with Chinese characters and logo with the State Trademark Administration in 1996, but registration of the independent logo has not been authorized since Geely applied in 2001.
(Source: People's Daily)
China Improving Copyright Laws
The National Copyright Administration is improving the nation's copyright laws by instituting four new regulations, including one to protect folk literature and the rights of net-work information distribution, reported China Daily.
According to the report, regulations will also cover payments for radio and television broadcasting and for group management for copyrights of certain artwork.
The China Music Copyright Association, for instance, is in charge of authorizing copyright for music broadcast in hotels or other locations, according to the administration.
An administration official said that the administration will also intensify copyright legal enforcement by having regional intellectual property management departments join forces with local public security offices, industry and commerce officials, and customs and culture sectors in efforts to slash pirating activities.
Authorities across the country have taken great steps to crack down on illegal activities, the official informed. It was reported that from January to October this year, for instance, officials had seized 22 illegal compact disk production lines.
(Source: Asia Pulse)
Trademark Dispute Goes To Court
Japan's Honda Motor Co has brought legal action against two Chongqing-based motorcycle companies alleged to have infringed on its trademark.
The first hearing was held at the Beijing No. 2 Intermediate People's Court with one of the accused, the Chongqing Lifan Motor Factory, not being present. The other defendant was the Chongqing Lifan Industrial Group. According to sources, both the companies are independent of each other.
No decision was handed down at the close of proceedings and it is not known when a ruling will be made.
Honda is asking from the two producers and a motor retailer, compensation of more than RMB25 million (US$3 million) for alleged economic losses caused by trademark violations.
The plaintiff claims that motors produced by the two companies carry the trademark "Hongda," which is only slightly different to "Honda" and is easily mistaken for the more famous brand.
Noting "Lifan" is the group's trademark, the lawyer representing the Chongqing Lifan Industrial Group claimed that the company never produced motors with the Hongda symbol as alleged. Furthermore, the lawyer said that the motor used by Honda as proof (in court) was without a seal and was not convincing. "Only one motor cannot prove that the group has produced some 200,000 such motors, as it is alleged", said the lawyer. Furthermore he said that, "As a famous domestic motor enterprise, there is no need for Lifan to infringe on others' intellectual property rights."
The third accused - the Beijing Zili Ziqiang Motor Shop - said in court at the start of proceedings that since the motors were allegedly produced by two independent entities, the case should not go ahead but be heard separately.
The court did not accept the request and decided the hearing should proceed.
Intellectual Property Rights disputes in vehicle production are rising this year together with the booming automobile market.
(Source: People's Daily)
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Crocodile Trademark Infringement Case Concluded
The Beijing Higher People's Court recently gave approval to the conciliation reached by two "crocodiles" -- the clothing firms French Lacoste and Hong Kong-based Crocodile on trademark disputes.
It marks the first ever ending of the year-long lawsuit put forward by the French firm La Chemise Lacoste against the accused trademark infringement by companies in the Hong Kong Special Administrative Region, Singapore and East China's Zhejiang Province.
According to the agreement, Hong-Kong based Crocodile Garments Ltd should stop using the current picture trademark after March 31, 2006, while Lacoste approved that the Hong Kong company could have the monopoly over a new symbol from that date, which is forbidden from the green color now used in the Lacoste symbol, as reported in China Daily.
"The agreement will lay the solid foundation for the intellectual property rights protection of both sides, as well as helping to protect our interests in the Chinese market," said a joint declaration released recently.
Established in 1933, Lacoste has achieved trademark registration in over 190 countries and regions, including China.
Lacoste accused Hong Kong-based Crocodile of using a similar trademark to Lacoste's, which infringed Lacoste's exclusive rights over the trademark registered in China in 1980.
Lacoste had asked for a sum of RMB3.5-million (US$423,000) as compensation in a 1998 legal appeal, but this was scrapped in the agreement.
(Source: The People's Daily)
Concerns Over Chinese Copyright Infringement Fine
A landmark court decision forcing the New Oriental Education Group to pay RMB10 million (US$1.21 million) in compensation for copyright and trademark infringements against to two United States plaintiffs has caused controversy and debate in China.
"The amount awarded to the two US firms is relatively high for copyright infringement cases in China, which are rarely won by foreign companies and if won, are awarded nominal compensation," the Agence France-Press (AFP) said.
However, according to a professor over a telephone interview with Xinhua, the fine is not high at all. "New Oriental has earned much more than the amount it was ordered to pay. Many local enterprises lack the awareness of IPR and have ignored issues on patent and copyright for years", said the professor.
In January 2001, the US-based Educational Testing Service (ETS) and the Graduate Management Admission Council (GMAC) accused New Oriental, China's biggest private English language training institute, of infringement of copyright and trademark, asking for RMB30 million (about US$3.63 million) in compensation.
New Oriental denied the validity of "copyright of test questions" in that all test questions in its books, which have been used in past tests, have been used by students all over the world and were only used for teaching and training.
The judge told the Beijing Morning Post, "although there is no clear regulation prescribing 'copyright of test questions' in Chinese law, there are some related parts in Law On Copyright of the People's Republic of China".
But the professor said the copyright law in China is complete.
"The case also shows how China is attempting to use the courts to enforce copyright law, both to give teeth to its claims of rule of law and to dull foreign businesses' complaints of rampant fakery," the Associated Press (AP) reported.
New Oriental was ordered to hand over all illegal copies of ETS and GMAC materials and publish an apology.
Since its establishment in 1993, New Oriental has gained huge profits from using and selling books, involving test questions for TOEFL, GRE and GMAT, and their trademarks, which have been registered by ETS and GMAC respectively.
"We are sincerely repentant and apologize for our past mistakes, " New Oriental announced after the sentence.
"China has been under increasing pressure by other countries to crack down on piracy after it joined the World Trade Organization in 2001," reported the AFP.
In 1997, local industry and commerce administration officials confiscated the illegal copies of ETS and GMAC test questions produced by New Oriental. But it continued to do business, using the illegal copies later.
"Companies should do business over the long run," Zhang said.
"You may make money in the short term, but are doomed to pay if you use the copyright of patents registered by others."
This is a warning and a tough question for Chinese companies that are still adopting mainstream technology without their own patents.
New Oriental Education Group has established branches in 12 major cities of China and in Toronto, Canada, gaining half of the Chinese training market for students going abroad, and training over 400,000 students annually.
The education group has registered trademarks of "New Oriental" and the corresponding Chinese version in China.
Xu Xiaoping, a spokesman for New Oriental, said the verdict was unfair and the company would appeal to a higher court, according to the China Daily.
(Source: Xinhua General News)
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The China Intellectual Property Law Newsletter is intended to be used for news purposes only. It should not be taken as comprehensive legal advice, and Lehman, Lee & Xu will not be held responsible for any such reliance on its contents.
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