SAIC Solicits Comments on New Well Known Mark Provisions

Image

The website of the State Council Legislative Affairs Office made the draft of the proposed changes to the SAIC rules on well known trademarks《驰名商标认定和保护规定》(修订征求意见稿) available for public comment on April 14 through its “ministerial rules” website portal, at: http://www.chinalaw.gov.cn/article/cazjgg/201404/20140400395679.shtml.  Comments are due May 13, 2014.

These proposed rules clarify prior practice, and also require greater reporting and coordination.  For example, it requires reporting of a well known trademark infringement cases and greater supervision of these cases throughout the SAIC system, and provides for withdrawal of well known mark recognition if the recognition was granted based on false pretenses, in addition to supporting existing CTMO and TRAB procedures in this regard, and providing for rectification by supervising AIC’s when well known mark recognition was inappropriately granted at lower levels.  It also notes that not all factors identified in the Trademark Law (Art. 14.1) and implementing regulations regarding recognition of well known marks need to be proved in order for well known mark status to be determined.

Attached are non-official translations of the draft rule and the official explanation, as provided by USPTO.  Note also that these are ministerial rules, not State Council regulations, lest an undue hierarchical importance be attached to them: SAIC solicit opinions on revision of Provisions on Recognition and Protection of Well-known Trademarks.

 

 

 

 

 

 

 

 

New Trademark Related Judicial Guidance and E-Commerce Enforcement Rule

Joe Simone at Simone Intellectual Property Services, has shared a translation of the recent Beijing Higher People’s Court Guidance on Hearing Trademark Administrative Cases (Jan. 2014).  In view of the high number of foreign-related trademark administrative appeals which are only heard in Beijing, these rules are very important to understanding relevant procedures and standards.  As I have noted in other translation postings these are unofficial translations for reference only.

Joe also provided us with a copy of the SAIC Rules on Trading on the Internet (enacted January 26 2014, with an effective date of March 15, 2014).   Unfortunately I do not yet have an English language translation of the SAIC Rules.  As a key regulatory authority for both trademarks and e-commerce, these rules are important for understanding SAIC’s role in this important area.

In case you are keeping track, this brings to five the total number of new trademark-related ‘normative documents’ in final or proposed form – the Trademark Law, the draft of the Implementing Regulations, the draft of the TRAB rules, and now these two. 

Pop Quiz on Chinese IP

Winter semester is back in session.  How would you fare on this pop quiz on Chinese IP?

True or false:

1.  The first patent filed in the United States by someone from China was by a “subject of the Emperor China,” prior to 1911. (Hint: the answer can be found on this blog)

2. The first bilateral agreement between the United States and China on IP matters was the Treaty of Friendship Commerce and Navigation in 1979.

3.  One of the principal exports of the United States to China was a traditional Chinese medicinal product, and was the subject of an early trade war.

4.  The first case involving imports of infringing copyrighted works into the United States from China occurred in the early 1800’s. (Hint: the answer can be found on this blog)

5.  The Chinese trademark office has been the largest office in the world for over 10 years (in terms of applications).

6.  China has more per capita civil copyright litigation than the United States, and more patents and TM litigation than the US too.

7.  A large share of the IP litigation in China is filed by foreigners. (Hint: the answer can be found on this blog)

8.  China’s property law was enacted years before its intellectual property laws, helping to pave the way for market reform.

9.  China’s State Intellectual Property Office is like the USPTO and grants trademarks too.

10.  China does not have any legal provisions on exports of counterfeit goods that are beyond the bare minima required by the WTO.

Click through for the answers!

Continue reading

What Has Been the Impact of the Trademark Law on Trademark Litigation

Since China’s WTO accession, trademark litigation has boomed along with nearly other IPR-related statistics.  From 2002 to 2011, all levels of court accept the trademark civil disputes over 45,706 cases, with an average annual growth rate reached 39.8%.  Litigation involving trademark validity at the Beijing No. 1 Intermediate Court grew even quicker from 2007 to 2011, to 5383 cases, and the annual average growth rate reached 57.2%.  Trademark criminal cases numbered 8194 during this period, with an average annual growth rate of 27.9%.    In sum, administrative validity cases have grown the quickest by far – due in part to the rapid growth in TM filings.  Administrative cases were  followed by civil cases and then criminal cases, and all of them showed double digit growth.  (Source: www.bipi.org).

USPTO and SAIC Engagement on IP Issues

From Director’s Forum: David Kappos’ Public Blog:

On Sept 10, 2012 the USPTO was privileged to host Minister Zhou Bohua and his senior delegation from the State Administrative for Industry and Commerce of China (SAIC) of the People’s Republic of China. Minister Zhou, visited us for about four hours, as part of a stopover en route to a meeting in Brazil. This was likely the first time that a Minister from SAIC has visited USPTO. Continue reading

A Quick Read of the AML IPR Enforcement Guidelines (Fifth Draft)

As China becomes more of a stakeholder in the IP system, and no longer sees itself as a passive player, how will its perspective on the relationship between intellectual property and antitrust change?

The recently announced fifth draft of SAIC’s “Guidelines on Antimonopoly Law Enforcement in the Field of Intellectual Property Rights” gives some additional perspective on this.  After an initial read, my response is cautiously positive.

Continue reading

Patent Law Revisions Up for Public Comment

SIPO has just made its proposed draft of revisions to the patent law (fourth amendment?) available on line.  With these sets of amendments, China is now in various stages of revising all major IP statutes:  the Copyright Law is with NCA in its second draft, the Trademark Law is with the State Council Legislative Affairs Office (SCLAO), and the Antiunfair Competition Law is also in some stage of review by either SAIC or the SCLAO.  Continue reading