Three
Judicial Interpretations Recently Entered into Force
In
2006, to improve China’s intellectual property litigation
system, The Supreme People’s Court made two judicial interpretations
and revised one judicial interpretation, all of which had
entered into force recently. On December 8, 2006, revision
on the judicial interpretation on hearing cases on computer
web copyright disputes entered into force. On February 1,
2007, interpretation on hearing cases on New Variety Right
of Plant disputes, and interpretation on hearing cased on
unfair competition disputes entered into force.
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English
Version of Patent Examination Guideline (2006)
Was Published by SIPO
Recently,
English version of Patent Examination Guideline (2006) Completed,
and is accesable at the website of State Intellectual Property
Office of People’s Republic of China.
Half
of the articles in Chinese Patent Law Will Be Revised Soon
On
January 30, 2007, according to the news released at News
Reception hold by State Intellectual Property Office of
China, half of the present 69 articles of China’s Patent
Law will be soon revised, and among them articles on restricting
patent right misuse is a point of public concern.
Administration
Regulations on Commercial Franchising (Draft)
Has Been Generally Approved
On
December 31, 2007, Administration Regulations on Commercial
Franchising (Draft) has been generally approved by the Congress.
According to the congress’s session hold by Primer Wen
Jiabao, the activities that enterprises license the use
of their registered trademarks, patent and other commercial
resources to other properitors through contracts will promote
the development of the enterprises and improve employment.
Therefore, to establish Regulations on Commercial Franchising
is necessary. After the draft is further revised, the congress
will announce the enforcement.
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People’s
Court Recognized
China’s First Unregistered Well-known Trademark
According
to the report by China’s Court (www.chinacourt.org) on
February 5, 2007, Inner Mongolian High Court uphold the
decision made by Huhehaote Intermediate Court in which “Suan
Suan Ru in Chinese”, an unregistered trademark hold by
Meng Niu Group was recognized well-known trademark. According
to the court’s decision, this recognition has no legal
effect on other cases.
Meng
Niu Group is one of the largest dairy-products manufacturers
in China, and they hold both design patent and trademark
for “Suan Suan Ru in Chinese”. The meaning of this mark
“Suan Suan Ru in Chinese” is “sour sour milk”. According
to the court’s decision, though the mark per se has direct
reference to the characteristic of the products that bears
the mark, it obtains distinctiveness through wide use since
the year 2000, and what’s more, it became well-known by
a great amount of advertisement. Even though its application
for registration has not yet been approved by the China
Trademark Office, according to Article 14 of China Trademark
Law, the court recognized it as well-known trademark.
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TRAB’s
Rejection on Trademark Application for Washington
Was Uphold by Court
According
to the report by China’s Court (www.chinacourt.org) on
February 8, 2007, trademark application for “WASHINGTON”
and its Chinese version used on fruit and services of advertisement
and sales for others were rejected by China Trademark Office
and then the appeals were rejected by China Trademark Review
and Adjudication Board (TRAB). The applicant was then appealed
to the court against the TRAB’s decision. Recently Beijing
First Intermediate Court decided to uphold the TRAB’s decision
after the first instant trial on the case.
According
to Article 10 of China Trademark Law, “no geographical
names of administrative divisions at or above the county
level or foreign geographical names known to the public
may be used as trademarks, except where geographical names
have other meanings or constitute part of a collective trademark
or certification trademark.”
The
TRAB’s rejection was grounded on the marks “Washington”
and its Chinese version are the name of the capital of the
United States, and therefore are not allowed to be registered.
The trademark attorney of the applicant argued that the
mark “Washington” have other meanings other than the name
of the capital city, because it was firstly used as the
family name of George Washington, the president, and later,
in order to memorize the great president, the word was then
used as the name of the capital city of the country.
However,
the count decided that in China, the word “Washington”
and its Chinese version is more well-known as the name of
the capital city than the family name of the president.
Therefore, the mark was not recognized as having meanings
other than the name of the capital city of the United States,
and the court uphold the TRAB’s rejection of the application
of the mark.
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