No.180 July 28, 2021 |
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In this issue
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 The 32nd Meeting of the China-France Mixed Committee on Intellectual Property Rights Held via Video Link
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On July 20, the 32nd Meeting of the China-France Mixed Committee on Intellectual Property Rights was held via video conference. Shen Changyu, Commissioner of the China National Intellectual Property Administration (CNIPA), and Pascal Faure, Director General of France's National Institute of Industrial Property (INPI, standing for Institut National de la Propriété Industrielle in French) attended the meeting.
Shen Changyu said that the regular holding of meetings of the China-France Mixed Committee has pushed forward the practical cooperation in information exchange and personnel training. With the entry into force of the China-France Protocol on Cooperation in Geographical Indications and the China-EU Agreement on Geographical Indications, it is hoped that the two sides will conduct more cooperation in the field of geographical indications.
Pascal Faure said that more and more French enterprises are entering the Chinese market and actively filing patent and trademark applications. INPI hopes to further push its cooperation with CNIPA to new levels.
(Source: CHINA Official WeChat Account)
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| China-Cambodia High-Level Meeting on Intellectual Property Held
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On July 22, Shen Changyu, Commissioner of China National Intellectual Property Administration (CNIPA), met Cham Prasidh, Senior Minister and Minister of Industry, Science, Technology, and Innovation of the Kingdom of Cambodia, via video conferencing. The two sides signed the 2021-2022 China-Cambodia Intellectual Property Rights Cooperation Plan.
Shen Changyu stated that, over the years, particularly in the field of patent examination, validation of Chinese valid invention patents in Cambodia through filing has offered Chinese patentees in Cambodia an expedited route to IPR protection. In the 2021-2022 China-Cambodia Intellectual Property Rights Cooperation Plan, the two sides will steadily proceed with existing cooperation projects and launch new projects in sectors such as technology and human resources.
Cham Prasidh highly appreciated the progress made in Cambodia-China bilateral cooperation on IP, especially in the field of patent examination. He stated that Cambodia will further enhance exchange and cooperation with CNIPA.
(Source: CNIPA website)
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| China's Technology Contract Transaction Volume Tops 2 Trillion Yuan for the First Time, and the National High-Tech Zones' Gross Product Reaches 12.1 Trillion Yuan
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In 2019, the vitality of China's scientific and technological innovation was further released. The nationwide technology contract transaction volume exceeded 2 trillion yuan (RMB) for the first time. The total output value of 169 National High-Tech Industrial Development Zones (National High-Tech Zones) reached 12.1 trillion yuan, accounting for 12.3% of China's Gross Domestic Product (GDP).
According to the Statistical Analysis on National Technology Market in 2019, in 2019, the transaction volume of China's technology market increased significantly, with a total of 484,000 technology contracts signed throughout the year and a transaction volume reaching 2.23984 trillion yuan, representing a growth of 17.5% and 26.6% over the previous year, respectively. The proportion of contract transaction volume in GDP continued to increase, reaching 2.3%. The average transaction volume for each technology contract was 4.627 million yuan, representing a year-on-year growth of 7.7%. There were 21,151 major technology contracts over 10 million yuan, with a total transaction volume of 1.79419 trillion yuan, accounting for 80.1% of the total transaction volume of technology contracts throughout the country.
Among them, electronic information, city construction and social development, and advanced manufacturing technology are the top three in terms of technology transaction volume, with the number and amount of contract transactions both exceeding 50% of the total number and total amount of national technology transactions.
The Statistical Analysis on Innovation and Development of National High-Tech Zones in 2019 shows that the total economies of scale of the National High-Tech Zones have become a strong support for national economic growth and local regional economic development. In 2019, the 169 National High-Tech Zones achieved total gross product of 12.1 trillion yuan. Among them, the output values of 53 National High-Tech Zones account for more than 20% of the city's GDP.
In the same year, the 169 National High-Tech Zones achieved a total operating income of 38.6 trillion yuan, a total industrial output value of 24.0 trillion yuan, a net profit of 2.6 trillion yuan, a tax payment of 1.9 trillion yuan, and a total export volume of 4.1 trillion yuan. Among them, 6 National High-Tech Zones' operating incomes each exceeded one trillion yuan, and 76 National High-Tech Zones' operating incomes each exceeded 100 billion yuan.
In addition, in 2019, enterprises in the National High-Tech Zones own 858,000 invention patents, accounting for 38.4% of the national invention patents; the transaction volume of technology contracts recognized and registered by enterprises in the National High-Tech Zones reached 678.39 billion yuan, accounting for 30.3% of the national technology contract transaction volume.
(Source: www.chinanews.com)
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| 2020 Financialization Index Report on China Intellectual Property Released
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Recently, the 2020 Financialization Index Report on China Intellectual Property released by the Guangzhou Intellectual Property Exchange Center shows that Guangdong Province tops the ranking of the 2020 National Financialization Index on Intellectual Property, followed by Jiangsu Province and Zhejiang Province.
According to the data, in 2020, Guangdong Province's intellectual property financialization index comprehensively ranked first in the country. Specifically, Guangdong owns 8,500 patent pledges, ranking first in the country, 42,828 patent purchases, ranking second in the country, 1,022 patent licenses, ranking third in the country, 134,554 trademark purchases, ranking first in the country, 1,298 copyright transactions, ranking third in the country, and a securitization financing amount of 2.808 billion yuan, ranking second in the country. Various indicators showed a balanced development trend.
In the first half of 2021, the national patent and trademark pledge financing amounted to 107.4 billion yuan, representing a year-on-year growth of 25.9%; the number of pledge projects was 6,195, representing a year-on-year growth of 32.4%. China will further enhance the popularization and beneficial coverage of intellectual property pledge financing to promote the development of innovative micro, small and medium-sized enterprises.
(Source: http://www.iprchn.com)
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| Cases in Spotlight
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| Damages of 10 Million Yuan Awarded by the Court! 10-year Trademark Dispute between Pigeon Company and GE HUANG Group Finally Settled
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Case Summary:
In January 2001, Pigeon Company was established, and the company name has been in use ever since. Pigeon Company has made extensive publicity and promotion of the Pigeon brand and has won many honors and huge revenue.
Pigeon Company owns the Trademark No. 146035 "  ", which was trademarded by Chongqing Electric Wire Factory, the predecessor of Pigeon Company. The trademark was approved for registration on April 15, 1981 and was designated for use in goods of "Wires, electric" in class 9. The trademark was transferred to Pigeon Company on April 25, 2002. From 2002 to 2014, the trademark was recognized as a famous trademark in Chongqing for multiple times by the former Chongqing Industry and Commerce Bureau. The trademark was recognized as a well-known trademark by the Trademark Office on January 15, 2010. Since then, during 2018, the trademark had been protected as a well-known trademark for multiple times in trademark opposition and invalidation procedures and administrative litigation. The Trademark " " has been recognized as a well-known trademark in multiple effective judgments and rulings from January 2008 to the present. The Trademark No. 3270081 "  " was applied for by Pigeon Company, approved for registration on February 28, 2004, and designated for use in goods of "Cables, electric" etc. in class 9. The Trademark No. 16039215 " " was applied for by Pigeon Company, approved for registration on April 21, 2016, and designated for use in goods of "Wires, electric; Cables, electric" etc. in class 9.
GE HUANG Group, formerly known as Chongqing Jiqing Electric Wire and Cable Co., Ltd., was established on May 24, 2005, renamed Chongqing GE HUANG Electric Wire and Cable Co., Ltd. on April 17, 2008, and renamed Chongqing GE HUANG Electric Wire and Cable Group Co., Ltd. on May 16, 2016. LIN Yingfeng has served as the legal representative of the company since April 2008.
The Trademark No. 4524253 " " was applied for by LIN Yingfeng on March 7, 2005, approved for registration on December 7, 2007, and designated for use in goods of "Wires, electric; Cables, electric" etc. in class 9. In addition, LIN Yingfeng also applied for the trademarks "鴿王(GE WANG) and device", "鴿王(GE WANG)", and "鴿皇(GE HUANG) and device" in goods of "Wires, electric; Cables, electric" etc. in class 9 in February 2005, June 2005, and May 2011 successively. All of these trademarks were rejected or successfully opposed because they constituted similar trademarks with the Trademarks No. 146035 and No. 3270081 of Pigeon Company.
In August 2011, Pigeon Company cited Trademarks No. 146035 and No. 3270081 and requested the Trademark Review and Adjudication Board (TRAB) to rule that the trademark No. 4524253 " " of GE HUANG Group is invalid. In April 2013, the TRAB determined that the trademark violated Article 28 and Article 31 of the then Trademark Law on the prior right of trade name. Later, the ruling was vacated by the Beijing Higher People's Court in April 2014 due to procedural issues concerning service and comprehensive evaluation of evidence. In the second round of invalidation procedure (re-ruling by the TRAB) in November 2016, after rectification regarding the procedural issues, the TRAB still applied Article 28 and Article 31 to announce that the alleged mark is invalid. After re-ruling by the TRAB and the first and second instances of administrative litigation, on May 2, 2018, the trademark was finally invalidated by the Beijing Higher People's Court in the final judgment. During the review of invalidation and administrative litigation of the case, LIN Yingfeng, in order to prove that the trademark had enjoyed a high reputation after being used by GE HUANG Group, submitted evidence to prove that GE HUANG Group has been approved to use the trademark, including the dispatch bills showing the alleged mark and name during the period from December 5, 2005 to October 15, 2009, and sales contracts, advertising contracts, promotional materials, price lists, store photos and product photos for promoting and selling electric wires and cables of "鴿皇(GE HUANG)" brand by GE HUANG group from 2010 to 2018, in which the alleged mark and business name were widely used.
On April 22, 2010, the former Chongqing Quality and Technology Supervision Bureau discovered and seized electric wires and cables marked with the words of Pigeon Company in the warehouse of GE HUANG Group. Upon identification, those were counterfeit products with the name and address of Pigeon Company. Administrative penalty was imposed on GE HUANG Group. From 2012 to 2013, GE HUANG Group applied for trademarks with the words "鴿皇(GE HUANG)" in goods of classes 9, 11, 17, 42, etc., but these trademarks were all rejected for registration after opposition.
In October 2018, Pigeon Company sued GE HUANG Group for trademark infringement and unfair competition. The Chongqing Fifth Intermediate People's Court supported Pigeon Company's claims and awarded 10 million yuan in damages. GE HUANG Group was not satisfied with the judgment of the first instance and appealed to the Chongqing Higher People's Court.
Judgment of the Court :
On July 16, 2021, the Chongqing Higher People's Court made the judgment of the second instance, rejected the appeal and upheld the judgment of the first instance. In the final judgment, it was determined that the acts of GE HUANG Group constituted trademark infringement and unfair competition, and that GE HUANG Group shall cease the trademark infringement, change its company name, compensate 9.99 million yuan for the economic losses, and publish a statement of apology in the Chongqing Economic Times to eliminate the impact. The acts of Xingfu Shiguang Business Department constituted trademark infringement, and the department shall cease the trademark infringement and compensate 10,000 yuan for the losses.
Typical Significance:
This case is a civil infringement case in which invalidation procedure plays an important role. This case clarified the relation between the general statute of limitations to bring an action and damages time limit in trademark infringement cases. With the implementation of the General Provisions of the Civil Law, the statute of limitations has changed from "two years" to "three years". In this case, the time period from May 2018 to October 2018 when the lawsuit was filed complies with the three-year limitation of action. In the case that the time period does not go beyond the statute of limitations and the infringement is still continuing, the damages time limit is not subject to the "three-year" limitation. In addition, this case also involves issues such as whether infringement can be excluded if a trademark is licensed for use, whether the use prior to invalidation of the trademark is infringement, and whether the evidence submitted in the invalidation procedure is admissible in the civil case, which are also worthy of attention.
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| Unitalen Client NucTech Won in a Retrial Case
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Brief of the Case:
In March 2017, NucTech filed a lawsuit of trademark infringement and unfair competition against Taihong Vision in the Beijing Intellectual Property Court, claiming that Taihong Vision used marks containing "威視(Weishi)" on security inspection equipment and official websites, Weibo, WeChat, and promotional materials as well as exhibitions, infringing NucTech's exclusive right to use the registered Trademarks No. 1341332 "威視(Weishi)" and No. 6989335 "威視NUCTECH and device", and that Taihong Vision’s use of "威視(Weishi)" in its company name constitutes unfair competition.
In August 2019, the Beijing Intellectual Property Court made the judgment of the first instance and determined that the defendant's production, sales, and promotion of the products involved in the case with a mark containing the words "威視(Weishi)" constituted infringements of the exclusive right to use the trademark owned by NucTech, and that the fact that the Trademark No. 12125350 "  " (this trademark, in the first instance, second instance, and retrial of the administrative litigation and the procurator supervision procedure, was determined to be a similar trademark on the same or similar goods as the cited trademark of NucTech, and was invalidated in the first instance of the civil infringement litigation) of Taihong Vision was a registered trademark does not affect the determination of its infringement of the exclusive right to use the registered trademark of NucTech. In addition, security inspection equipment products with the "同方威視(NucTech)" name have already gained a certain degree of popularity and influence, and Taihong Vision's use of the words "威視(Weishi)" in its company name constitutes unfair competition. The Beijing Intellectual Property Court, based on the popularity of NucTech's "威視(Weishi)" trademark and trade name, and maliciousness of Taihong Vision, as well as other factors, determined that Taihong Vision shall compensate NucTech for economic losses and reasonable expense for a total of 3 million yuan.
Taihong Vision was dissatisfied with the above judgment of the first instance and appealed to the Beijing Higher People's Court. In October 2020, the Beijing Higher People's Court made the judgment of the second instance, rejected the appeal of Taihong Vision and upheld the judgment of the first instance.
Although Taihong Vision changed its name to TECHIK in November 2020, it was still dissatisfied with the judgment of the second instance and applied for a retrial by the Supreme People's Court. In June 2021, the Supreme People's Court upheld the determination in the judgments of the first and second instances and rejected the retrial application submitted by TECHIK.
Case Significance:
This trademark infringement and unfair competition dispute case, as well as the case of administrative dispute over the request for trademark invalidation between NucTech and TECHIK all have gone through the first instance, second instance, and retrial, and the case of administrative dispute over the request for trademark invalidation has further gone through the procurator supervision procedure. Unitalen attorneys skillfully used both the civil and administrative procedure to comprehensively crack down hard on the registered trademark " " of TECHIK, the company name containing "威視(Weishi)", and the use and promotion of marks containing the words "威視(Weishi)" in business activities, and won the cases in every procedure, effectively protected the intellectual property rights of NucTech.
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| 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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Brief of the Case:
Kingdee owns the Trademarks No. 1505793 "  ", No. 26760297 "  ", No. 4362974 " ", No. 28658925 "  ", and No. 18790329 " " (hereinafter referred to as "the involved trademarks 1-5" respectively). Among them, the involved trademark 1 was approved for registration on January 14, 2001 and designated for use in goods of "Computer software; Computer programs, recorded" etc. in class 9; the involved trademark 2 was approved for registration on October 14, 2018 and designated for use in goods of "Computer software applications, downloadable; Computer program" etc. in class 9; the involved trademark 3 was approved for registration on January 14, 2008 and designated for use in goods of "Paper; Printed publications" etc. in class 16; the involved trademark 4 was approved for registration on December 21, 2018 and designated for use in goods of "Paper; Ledgers [books]; Forms" etc. in class 16; the involved trademark 5 was approved for registration on February 7, 2017 and designated for use in goods of "Paper; Printing paper; Ledgers [books]" etc. in class 16.
On April 7, 2008, Huang Yang signed the "Employment Statement of Kingdee Employee" with Kingdee, and later took charge of purchasing logistics and direct sales in Chengdu as the director in western region of the company. On July 2, 2012, the company Moneywise was established. Its business scope includes sales of office supplies and stationery, computer software and hardware R&D, sales and technical services, etc. On July 5, 2013, Huang Yang joined Moneywise after leaving Kingdee. On January 1, 2013, upon application of Moneywise and authorization of Kingdee, Moneywise became a golden partner of Kingdee selling auxiliary products in Chengdu, which continued until December 2014. In March 2015, Kingdee began to use the trademark "金蝶妙想(Kingdee Miaoxiang)". As of June 2015, the trademark 金蝶妙想(Kingdee Miaoxiang) had gained a high reputation in the fields of financial software and financial voucher paper products. On August 12, 2015, Huang Yang became the controlling shareholder of Moneywise with a 100% shareholding ratio and also served as the legal representative. He resigned from the legal representative position after the case was filed and participated in the litigation as an employee of Moneywise.
At the beginning of 2015, after the termination of authorization, Moneywise continued to carry out business activities in the fields of financial software and voucher paper products, and was still selling Kingdee's software and its auxiliary voucher paper. Moneywise marked "applicable to Kingdee" on the financial voucher paper products sold and used "applicable to Kingdee" in publicity and promotion, and prominently used the marks "金蝶(Kingdee)" and "Kingdee". Since then, Moneywise even applied for registration of the Trademarks No. 18233177, No. 18233130 and No. 27329567 "金蝶妙想(Kingdee Miaoxiang)" on goods in classes 16, 9, and 35 in November 2015 and November 2017 respectively. Among them, the Trademark No. 18233177 " " was approved for registration on goods of "Paper" etc. in class 16 on December 14, 2016, and the other two trademarks were determined to violate Article 15.2 of the Trademark Law by the China National Intellectual Property Administration (CNIPA) during the opposition proceedings and thus were not approved for registration. On December 8, 2017, Moneywise used its maliciously squatted trademark "金蝶妙想(Kingdee Miaoxiang)" to file the invalidation procedure against Kingdee's trademark "金蝶妙想(Kingdee Miaoxiang)", and filed malicious complaints against the on-line store operated by Kingdee on JD, declaring that the use of "金蝶妙想(Kingdee Miaoxiang)" in multiple places in the store infringed the Trademark No. 18233177. On December 22, 2017, Kingdee submitted the "Trademark Appeal" to JD for defense. After that, the Trademark No. 18233177, which was used by Moneywise as the basis of rights, was invalidated by the CNIPA on February 6, 2018 upon request of Kingdee.
Kingdee believed that the aforementioned actions of Moneywise infringed its legitimate rights and interests, and entrusted Unitalen to file a lawsuit against Moneywise for trademark infringement and unfair competition in July 2020. The case was accepted by the Chengdu Intermediate People's Court of Sichuan Province and was concluded on July 20, 2021.
Judgment of the Court:
After trial, the Chengdu Intermediate People's Court made the judgment of this case on July 20, 2021, ordering Moneywise to:
1.immediately cease to use the mark that infringes the above 5 registered trademarks involved in the case;
2.immediately cease to sell the financial software that infringes the registered Trademarks No. 1505793 and No. 26760297;
3.compensate 1.3 million yuan for economic damages and pay 37,026 yuan for reasonable expenses;
4.publish a statement in the prominent position of Shenzhen Evening News and Chengdu Economic Daily for 7 consecutive days and publish a statement in the prominent position of "Moneywise Form Flagship Store" on JD for 30 consecutive days (the contents of the statements shall be reviewed by this court) to eliminate the influence.
Typical Significance:
The typical significance of this case is mainly manifested in the two aspects: "regulating the abuse of trademark rights through Article 2 of the Anti-unfair Competition Law" and "judgment rules for the fair use of trademarks".
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