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February 18, 2007

In This Issue

Laws and Regulations

Case Review






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.



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.



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.



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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