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23

MAY

2020

AFD China Won Asia IP Awards 2020

Recently, the reputable intellectual property magazine Asia IP published the winners of the latest Asia IP Awards.

Because of "comprehensive, spot-on and one-stop services" and good feedback from existing clients, AFD won the title of "Patent Firm of the Year".

http://afdip.com/index.php?ac=article&at=read&did=3619

Law and Juridical Interpretation for Public Comment

The National People’s Congress released a draft of the Copyright Law for public comment. Comments are due by June 13, 2020.

http://www.npc.gov.cn/flcaw/userIndex.html?lid=ff80808171ba0ccc0171be96df3a02b0

The Supreme People’s Court released a revision of the “Provisions on Several Issues Concerning the Administrative Cases on Patent Validity for public comment. Comments are due by June 15, 2020. The formal juridical interpretation is scheduled to be released in August 2020.

http://www.court.gov.cn/zixun-xiangqing-227631.html

SAMR Details IPR Protection Tasks for 2020

The State Administration for Market Regulation has released an action plan on protection of intellectual property rights (IPR), detailing major tasks for 2020.

The plan called for further improvements in law enforcement to make the process more effective and professional, with enhanced cross-regional cooperation and tougher punishments on illegal activities.

More focus will be placed on major marketplaces with frequent IPR infringements and the Internet, as well as on commodities that concern public health and safety.

In recent years, Chinese authorities have intensified crackdowns on IPR infringements. The country now ranks the 14th in the global innovation index issued by the World Intellectual Property Organization and the 31st in the ranking of ease of doing business according to a World Bank report.

http://english.cnipa.gov.cn/news/iprspecial/1148239.htm

Survey Shows People’s Satisfaction on China’s IP Protection Improved in 2019

The National Intellectual Property Administration surveyed rights owners, professionals and the public for their opinions on China's efforts for IP protection in 2019.

Results showed that the country scored 78.98 out of 100 in terms of overall IP satisfaction last year, up 2.1 points from 2018. Among the respondents, rights owners were the most satisfied.

Most people surveyed expressed hopes of further crackdowns on infringements and an increase in the efficiency and amount of compensation for infringement damages.

http://english.cnipa.gov.cn/news/iprspecial/1148592.htm

SUPPLEMENTARY ISSUE

Guangzhou IP Court Sides with Italian Furniture Maker in Design Patent Dispute

Recently, Guangzhou IP Court made a first- instance judgment on a design patent infringement case between the Italian company Giovannoni Design S.R.L and Dongguan Boyuan Rotational Molding Technology Company and held that the design of the rabbit- shaped products Boyuan manufactured is similar to the design patent titled "CHAIRS" (Patent Number: ZL201530388869.3) and owned by Giovannoni and infringes Giovannoni's design patent right, ordering Boyuan to cease infringement and indemnify 80,000 yuan in damages.

In October, 2015, Giovannoni filed the application of the patent in dispute to the then- State Intellectual Property Office (SIPO), which would be granted on January 20, 2016 for use on furniture. The key feature of the design patent is the shape of the product, that is, the long-eared rabbit shape.

At the beginning of 2019, Giovannoni found that LED colorful and glowing- rabbit chairs, children's stools and creative bar stools as props for large- scale activities during Mid- Autumn Festival (alleged infringing products) sold by Boyuan on the Alibaba's e- commerce platform fell into the claimed protection scope of its design patent, infringing its patent rights. Giovannoni then filed the case at Guangzhou IP Court, requesting the Court to order Boyuan to stop manufacturing, selling and offering to sell the alleged infringing products and to indemnify 335,000 yuan.

Boyuan argued that firstly, the alleged infringing products belonged to decorative lighting and were different from the patent products in function and type. Secondly, the attached drawing of the design patent certificate was not the same with the one of the alleged infringing products. Thirdly, the features of the patent in dispute did not meet the conditions required for grant of a design patent. At last, Boyuan Company sold only two kinds of the alleged infringing products, and neither sold infringing products in large volumes nor gained notable profits. The damages Giovannoni asserted were too high.

Guangzhou IP Court held that the patent products are chairs, belonging to furniture. The alleged infringing products are called glowing rabbit shaped chairs in Boyuan's online store, which can meet the conditions as chairs considering the size of the alleged infringing products. The alleged infringing products and the design patent in dispute can be compared considering that they are identical in type. Both the design of the alleged infringing products and the patent in dispute are in long-ear rabbit shape and identical in shape and limb proportions, thus constituting similarity. In this connection, the alleged infringing products fell into the protection scope of the claims of the patent in dispute.

The Court made the above-mentioned judgment after a comprehensive consideration of the patent type, the popularity of the patent products, the nature and situation of Boyuan's infringing act and the price of the alleged infringing products.

After the first-instance judgment, Boyuan has appealed to Guangdong High Court, and CIPNews will continue to pay attention to the development of the case.

http://english.ipraction.gov.cn/article/tc/202005/310892.html

AVIKO Catches a Break at Second Instance over TM Registration

AVIKO, a renowned Dutch potato food maker, filed an application for registration of the No.24384025 爱味客郁金香 AVIKO TULIP and its figure trademark in 2017, but would see denials one after the other, leaving the Dutch company on a warpath to reverse them.

On May 27, 2017, AVIKO filed a registration application for the trademark in dispute to the Trademark Office (TMO) of former State Administration for Industry and Commerce, designating its use on Class 29 products including fish-based products.

After examination, the former TMO rejected the application of the trademark in dispute. According to the TMO document, the trademark in dispute constitutes similarity with No.12258410 爱味客 and its figure, No.18097228 愛味客, No.4958837 郁金香 TULIP and its figure, No.7152229 郁金香, No.9880152 郁金香 DOPTOP TULIP FOOD and its figure, No.19772528 金郁香 and its figure, No.930632 , No.G908979 TULIP and its figure, No.G1070749 TULIP, No.13321374 TULIP and its figure (the I to X cited trademark) when used on the same or similar products.

The disgruntled AVIKO then pled a request for review to the former Trademark Review and Adjudication Board (TRAB).

On September 6, 2018, TRAB rejected AVIKO's request on the grounds that the trademark in dispute contains 爱味客 in cited I and II trademark, and TULIP in cited VIII, IX and X trademark, which constitute similarity with above cited trademarks. As the products on which the trademark in dispute was certified to be used were same or similar products with cited I, II, III, IV, V, VII, VIII, IX and X trademark, so the trademark in dispute constitutes similarity with above cited trademarks when used on the same or similar product.

AVIKO then brought the case to Beijing IP Court.

The IP Court held that the identifiable letters of trademark in dispute are AVIKO TULIP, which constitutes similarity with the cited VIII and X trademark in letter composition as their identifiable letters are TULIP. So the court dismissed AVIKO's claim, holding its registration may cause confusion among the public.

AVIKO then brought the case to Beijing High People's Court along with mails between the company's agent and the agents of the cited VIII and X trademarks on negotiating the coexistence of the trademarks and the concluded trademark coexistence agreements.

The court of second instance held that the trademark in dispute was similar to the cited VIII and X trademarks in terms of letter combinations and structure, and was used on similar goods. However, in view of the fact that AVIKO submitted the relevant trademark coexistence agreement during the second-instance trial, and that the trademark in dispute was certified to be used on potato pancakes and other goods, there was no evidence to prove that the coexistence of the disputed trademark and the VIII and X cited trademarks would prejudice the public interest. In summary, the court evacuated the first instance judgment and the review decision made by the former TRAB, and ordered China National Intellectual Property Administration to make a de novo decision.

http://english.ipraction.gov.cn/article/tc/202005/312628.html

About the Firm

AFD China Intellectual Property Law Office
Address Technology Fortune Center Tower B, 16th Fl. Suite 1601A, 8 Xueqing Road, Beijing 100192, China
Tel 86-10-8273 0790
Fax 86-10-8273 0820
Email afdbj@afdip.com
Link www.afdip.com

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